Montefiore Medical Center/courtesy photo

A malpractice claim against a renowned heart surgeon based on allegations of a surgical needle portion being left in an infant's chest will proceed because questions remain about whether departures from accepted medical practice proximately caused the infant's injuries, an appeals court has ruled.

An Appellate Division, First Department panel wrote that the medical malpractice suit lodged by Premeire Debose and related plaintiffs will proceed because “conflicting factual testimony and medical opinion in the record present issues of fact as to whether any departures were a proximate cause of any physical, psychiatric or emotional injury to the infant,” citing Frye v. Montefiore Med. Ctr. and Severino v. Weller.

It was unclear based on the panel's July 2 opinion whether Debose was the infant, though it appeared so. In addition to Dr. Francois Lacour-Gayet, the heart surgeon, Montefiore Medical Center in the Bronx was also named as a defendant.

According to the unanimous panel, in the lower court, Bronx Supreme Court Justice Lewis Lubell denied the plaintiffs' summary judgment motion on medical malpractice liability when he found that, while the plaintiffs demonstrated that the defendants had departed from good and accepted medical practice by unintentionally leaving a surgical needle portion in the infant's chest, the plaintiffs had still failed to demonstrate that that departure proximately caused the infant's injury.

Later, the plaintiffs made a motion to reargue both their summary judgment motion and the defendants' cross-motions for summary judgment to the extent that the cross-motions requested dismissal of the plaintiffs' claim that a second surgical procedure aimed at removing the broken needle had caused the infant injury, the panel said.

Lubell granted reargument, the panel said, and after reargument found that he had erred when he'd granted the defendants' motions for summary judgment dismissing plaintiffs' claim that the second surgery, during which defendants removed a needle portion left in the infant's chest during the first surgery, had proximately caused injury to the infant.

On Tuesday, Justices Rosalyn Richter, Peter Tom, Ellen Gesmer, Cynthia Kern and Peter Moulton affirmed Lubell's rulings. Specifically, according to the opinion, they affirmed a July 2018 decision by Lubell denying the plaintiffs' motion asking for summary judgment regarding its allegations of medical malpractice against Lacour-Gayet and Montefiore.

They further affirmed a 2019 Lubell decision granting the plaintiffs' motion to reargue and after reargument denying the defendants' summary judgment motions seeking to dismiss the plaintiffs' claim that a second procedure caused psychiatric or emotional injury to the infant.

Making clear that the action should go forward in litigation, the justices wrote that “we find that the conflicting factual testimony and medical opinion in the record present issues of fact as to whether any departures were a proximate cause of any physical, psychiatric or emotional injury to the infant.”

According to a 2011 Montefiore news release, Lacour-Gayet joined The Children's Hospital at Montefiore at that time, and among his positions there, he was chief of the Division of Pediatric Cardiothoracic Surgery in the Department of Cardiovascular and Thoracic Surgery at Montefiore Medical Center and co-director of the Pediatric Heart Center at The Children's Hospital at Montefiore.

It is unclear whether he still holds the same positions or different ones, and whether he is still affiliated with Montefiore.

Gina Bernardi Di Folco, a Manhattan-based partner at McAloon & Friedman, represented Lacour-Gayet in the appeal and could not be reached for comment.

Sean Maraynes, a Wilson Elser Moskowitz Edelman & Dicker associate in White Plains, represented Montefiore Medical Center. He also could not be reached.

Jonah Grossman of the Law Office of Jonah Grossman in Queens helped represent the plaintiffs, including Debose. He could not be reached.