On July 5, 2023, an appellate court covering appeals from Queens County, Nee York, Supreme Court agreed that a surgeon claimed to have caused the death of his 52 year old patient must present his defenses at a jury trial. The plaintiff's decedent was admitted to the emergency room of the defendant Long Island Jewish Medical Center (LIJ) due to complaints of abdominal pain. The decedent, who was self employed as a mechanic, was diagnosed with a high grade small bowel obstruction and the defendant Stephen Litvak, M.D. performed surgery to treat a hernia. The decedent was discharged from the hospital six days later. The next day after discharge, "the decedent returned to the hospital with a complaint that a suture line from the surgery had opened. Dr. Litvak then performed a second surgery, and during that procedure, the decedent vomited while under general anesthesia, resulting in his death due to pulmonary aspiration."

Suit was filed for medical malpractice and wrongful death. After all parties were deposed, both LIJ and Dr. Litvak moved to dismiss the case to avoid a jury trial. Both defendant's appealed an order denying their motions for summary judgment to dismiss. The plaintiff claimed that the premature discharge and inadequate care during the first admission led to the decedent's deteriorating condition requiring a second surgery during which her husband died. The plaintiff's expert raised questions of fact requiring a jury trial: 1) failing to recognize signs of infection during the first admission (rapid heart rate and high white blood cell count); 2) prematurely discharging the decedent without post-operative instructions to limit his diet - all of which caused the need for the second admission and second surgery resulting in the decedent's premature death. Balgobind v Long Is. Jewish Med. Ctr., 2023 N.Y. Slip Op. 03673