On February 21, 2017 an intermediate appellate court covering Manhattan, upheld a New York County Judge's ruling that denied a motion to dismiss the malpractice claims filed by 61 year old male who underwent routine gallbladder surgery at New York and Presbyterian Hospital. Hours following surgery the patient suffered a cardiopulmonary arrest which has left him in a permanent vegetative state dependent on a ventilator for oxygen.

The attorney's for the patient submitted expert affidavits from a surgeon and anesthesiologist and successfully argued to the Court: 1) there was a failure to identify red flags that the patient was experiencing an overdose or adverse reaction to morphine administered by an anesthesiologist; 2) there was a delay in calling a code and that bag mask ventilation and chest compressions "if started immediately can substantially ameliorate the risk of permanent sequelae such as what happened to this patient". Severino v Weller 2017 WL 671870. The defendant's submitted expert affidavits who claimed there was no malpractice. As such the appellate court agreed that a jury will have to decide which side's experts is to be believed.