Professional Negligence Law Reporter

A New York appellate court held that dismissal was proper in a medical negligence suit brought by a patient alleging she suffered injury after undergoing knee replacement surgery performed by a physician who was suffering from Alzheimer’s disease.

Betsey Emerson underwent a double knee replacement performed by physician Kenneth Krackow, who, unbeknownst to her, had been diagnosed with Alzheimer’s disease before the surgery. Emerson and her husband sued Kaleida Health, Krackow’s attorney in fact, and an orthopedic group, alleging medical negligence and lack of informed consent. The trial court granted summary judgment for the defense.

Affirming, the appellate court noted that the defendants met their initial burden by submitting an expert affirmation opining that notwithstanding his Alzheimer’s diagnosis, Krackow’s alleged impairment did not affect the outcome of Emerson’s surgery or result in any injury to her. The court found that the plaintiffs had failed, in response, to establish that the defendant physician’s condition had impacted the surgery or led to injury. The court also found that the defendants also met their initial burden on the plaintiffs’ informed consent claim in that the defense submitted deposition testimony and medical records demonstrating that Krackow had informed Emerson of the reasonably foreseeable risks associated with the surgery, confirmed she understood those risks, and obtained her written consent. The plaintiffs failed to raise an issue of fact in opposition, the court found.

Additionally, the court found that through expert testimony, Kaleida met its prima facie burden of establishing that Krackow’s disease did not lead to the plaintiff’s injuries or prevent Krackow from practicing medicine competently. The plaintiffs failed to raise a triable issue of fact in response, the court said, concluding that summary judgment for Kaleida also was proper.

Citation: Emerson v. Kaleida Health, 2023 WL 4284506 (N.Y. App. Div. June 30, 2023).