A doctor who stepped in to correct a colleague’s mistake should not have been allowed to testify during the malpractice suit. This is according to a three-judge panel in the appellate division.
Granovsky v. Chagares alleges that Dr. Stephen Chagares severed the wrong duct of Alexandra Granovsky during a gall bladder surgery in 2009. Soon thereafter, Dr. Manuel Rodriguez-Davalos repaired the injury.
Dr. Rodriguez-Davalos, testified during the trial that this was an easy mistake to make. Surgeons may also be ‘confused’ due to the small size and close proximity of the ducts.
The Appellate Division said that Rodriguez-Davalos was improperly considered an expert witness but was a fact based witness. The difference being that he had firsthand knowledge of the case having been the treating doctor. To quote, "How it happened and why it happened, or that it could have happened to the best of surgeons … is beyond the scope of what this fact witness could offer the jury and should have not been permitted."
The attorney for Chagares will seek to bring the case before the state’s Supreme Court, he is willing to retry should that be required.
If you were injured during surgery, or for any other law related matters, please reach out to the Simon group for your free consultation.
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