Negligent Surgery Causes Plaintiff To Lose Kidney And Spleen

Wendy Ketner, M.D.

Written by Wendy Ketner, M.D.

- Updated onOctober 25, 2023

Court: United States District Court for the Southern District of New York
: Federal
Case Name
: Bosco v. United States
: 2016 U.S. Dist. LEXIS 131563


In this medical malpractice case, a plaintiff sued the state under the Federal Tort Claims Act after going for a routine surgical procedure which allegedly caused him to lose his left kidney and spleen. The plaintiff retained a urology expert to establish malpractice, and the state moved the court to exclude certain evidence from the plaintiff’s expert.

The Expert

The plaintiff’s expert was a trained urologic surgeon and clinical instructor for surgery. The state sought to disqualify the expert from offering an opinion as to the cause of plaintiff’s splenic subcapsular hematoma as the expert was not a lymphatic system specialist and he had admitted in his testimony that spleen was not a urologic organ and the causes of splenic subcapsular hematoma were not related to his subject field.


The state argued that the expert’s opinion was inadmissible and sought summary judgment claiming the plaintiff was not able to prove a prima facie claim for medical malpractice. The plaintiff claimed that the urology expert’s opinion was sufficient to establish medical malpractice through the res ipsa loquitur rule.

The court found that the expert was qualified to offer testimony with respect to performing a ureteroscopy procedure. Although the state was correct that the expert was not qualified as a lymphatic specialist, the matter at issue was whether a ureteroscopy could cause splenic injury. The expert was trained as a urological surgeon and had specialized knowledge of the procedure, therefore rendering him qualified to opine whether a ureteroscopic can result in splenic injury.

The state contended that the court should also exclude the expert opinion that plaintiff’s spleen did not rupture spontaneously because in an affidavit, his opinion was first in support of plaintiff’s opposition to the state’s motion after the close of expert discovery in this case. The courts consider expert affidavits submitted after the close of discovery and in opposition to summary judgment only if the affidavit is within the scope of the initial report. The expert opinion that plaintiff’s spleen did not spontaneously rupture was within the scope of his opinion and was expressed in his initial report. The expert’s explanation for ruling out spontaneous splenic rupture was reasonable and, therefore, it was admissible.

The state challenged the reliability of the expert opinion with respect to the common knowledge of the urologic surgery community. The plaintiff conceded that he offered the expert opinion to help bridge the gap for a trier of fact. The plaintiff further asserted that it was common knowledge among urologists that injuries that require a splenectomy or nephrectomy after a ureteroscopy do not occur absent negligence. Because the expert was qualified in urologic surgery, it was determined that his testimony regarding the common knowledge of the community of urologic surgeons was based on his industry training, knowledge, and experience.

The state contended that the court should preclude the expert’s statement under rule 32 in his affidavit which supported the plaintiff’s opposition to the state’s motion. The statement under rule 32 was an example of providing evidentiary details for an opinion expressed in his expert report which was typically permitted in expert affidavits submitted in connection with dispositive motions.


It was held that the expert’s opinion helped to educate the trier of fact on the matters at hand. Therefore, the state’s motion to exclude the opinions of the plaintiff’s urology expert was denied.

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