Battery Claim Against Surgeon Allowed For Exceeding Scope of Patient's Consent

On December 22, 2017 an upstate New York appellate court upheld the right of a patient to sue a surgeon for exceeding the scope of a surgery she consented to. There was no discussion by the Court of the type of surgery the plaintiff did consent to. However, the Court noted that the plaintiff had a history of bowel difficulties and that she had expressed her strong desire not to undergo any further procedures which may impact her bowel. According to the sworn deposition testimony of the plaintiff, she told her surgeon: "don't touch my bowel" and that the surgeon responded, "Honey, I promise you nothing will happen to your bowel and if anything is close to your bowel, I will not touch it."

The plaintiff suffered a bowel perforation during the course of the surgery. The Court held that the plaintiff was entitled to have a jury decide who they believe. If plaintiff's testimony is believed, the surgeon will he held liable for money damages arising out of a battery--an intentional act for which there may be no insurance coverage. Tirado v Koritz, 2017 N.Y. Slip Op. 08954

Ronald C. Burke, Esq

Trial Attorney with 30+ Years of Experience Attorney Ronald C. Burke, Esq. has more than 30 years of experience and has focused his career on representing clients in cases involving personal injury, medical malpractice and legal malpractice. He is a seasoned trial lawyer and has won many seven-figure settlements and verdicts for his clients over the years, including many case victories listed among the largest in the history of the New York State. He has been featured in the news and is a regular lecturer for the New York County Lawyers Association, as well as having lectured before the New York State Bar Association. Ron is also an attorney with Kelner & Kelner, a New York personal injury law firm. Awards and Accolades Mr. Burke's awards and accolades are many. Among them, he has been included in New York Super Lawyers® each year since 2010, and he has received the highest-possible AV® Rating from Martindale-Hubbell®. Verdict Search, a part of the New York Law Journal, frequently recognizes his notable successes after winning some of the highest settlements and verdicts in past years. He was also featured in their list of the "Top New York Verdicts " and "Top New York Settlements." He is a member of the New York State Bar Association and is licensed to practice law in the U.S. District Court for the Southern and Eastern Districts of New York, as well as before the United States Supreme Court. When Attorney Burke is not handling legal malpractice cases, he is highly involved in the local community. He was a member of the Village of Rockville Centre Volunteer Fire Department, has served on the local school board and as Chairman of the local Zoning Board. Learn more about Attorney Burke and how he can skillfully handle your malpractice case by contacting the Law Offices of Ronald C. Burke, Esq. right away to schedule your complimentary case evaluation. Our firm is here to help! Contact a New York Legal Malpractice Attorney Our firm provides each client's case with thorough preparation and aggressive representation, ensuring that you win the best possible results for your case whether it is settled or goes to trial. As a seasoned trial lawyer, Mr. Burke can provide the strong and relentless representation you need to establish negligence in a legal malpractice case and to recover any damages you may have suffered. Our firm can recover compensation for pre-trial and trial malpractice, violations of fee arrangements, loss of income, pain and suffering, and much more. Contact us today!


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