Patient’s Death Blamed on Surgeon’s Failure to Remove Tube – Settlement: $675,000

Dan Israeli [Verdict Search]


Supreme Court, Second Judicial District, Kings County, New York.

Michael Asta as Administrator for Goods, Chattels, etc. of Robert Asta, Deceased, and Individually, Melanie Asta, as Mother & Natural Guardian of Joseph Asta, and Individually v. Dr. Muthukumar Muthusamy Dr. Kedambady P. Sheka, The New York City Health and Hospitals Corporation University Group Medical Associates P.C. d/b/a Coney Island Medical Group, The City of New York, Coney Island Hospital and Dr. John Doe” and Nurse Jane Doe” the Names Being Fictitious the Real Names of These Defendants Being Unknown to Plaintiffs, Said Fictitious, Names Being Intended to Designate Doctors, Nurses of Other Person Whose True Names Are Presently Unknown and Who, as Employees, Servants and/or Agents or Otherwise Having Privileges to Practice at Coney Island Hospital, and Carelessly, Negligently and/or Recklessly Treated the Plaintiff Herein, and/or Failed to Obtain Informed Consent

No. 25750/07




Award Total: $675,000
The parties negotiated a pretrial settlement. New York City Health and Hospitals agreed to pay $675,000. Plaintiffs’ counsel reported that the settlement’s negotiations began during the day that would have preceded the plaintiffs’ expert pathologist’s examination of remnants of Robert Asta’s stomach and its contents.


Plaintiff: Lone Thanning, M.D.; Forensic Pathology; Huntington, NY

Steven I. Becker; Gastroenterology; Fair Lawn, NJ


Plaintiff: Peter DeFilippis; Peter DeFilippis & Associates P.C.; New York, NY (Estate of Robert Asta)

Defendant: David W. Sisskind; Schiavetti, Corgan, DiEdwards & Nicholson; New York, NY (Coney Island Medical Group, NYCHHC, City of New York, Coney Island Hospital, Dr. Kedambady P. Sheka, Dr. Muthukumar Muthusamy)

JUDGE: Marsha L. Steinhardt
STATE: New York

INJURIES: Asta suffered fatal peritonitis. He died July 23, 2006, at the age of 54. He was survived by three adult children. Asta’s estate sought recovery of wrongful-death damages that included damages for six days of pain and suffering, damages for the estate’s pecuniary losses, and damages for Asta’s children’s loss of care, counsel and protection. Asta’s youngest son, Michael Asta, 34, presented a derivative claim.


On July 17, 2006, plaintiff’s decedent Robert Asta, a 54-year-old unemployed man, underwent laparoscopic bariatric surgery: a sleeve gastrectomy. The procedure was performed by Drs. Muthukumar Muthusamy and Kedambady Sheka, at Coney Island Hospital, in Brooklyn.

On July 20, 2006, Asta was advised that a test indicated that a surgical tool remained in his body. He returned to the hospital. A CT scan was performed, but the test did not reveal a foreign object. Asta’s large size prevented performance of an MRI scan, so he was dismissed.

Asta died July 23, 2006. His death was a result of peritonitis. Asta’s youngest son, Michael Asta, claimed that his father’s peritonitis was caused by damage that was created by a surgical instrument that Muthusamy and Sheka had failed to remove.

Michael Asta, acting individually and as the administrator of his father’s estate, sued Muthusamy; Sheka; their employer, University Group Medical Associates P.C.; Coney Island Hospital; the hospital’s operator, New York City Health and Hospitals Corp.; and the hospital’s owner, the city of New York. The plaintiffs alleged that Muthusamy and Sheka failed to properly perform the surgery, that they failed to detect the cause of Robert Asta’s resultant illness, that their failures constituted malpractice, and that the remaining defendants were vicariously liable for the actions of Muthusamy and Sheka.

Plaintiffs’ counsel claimed that Asta had consented to a different type of bariatric surgery: a Roux-en-Y bypass. He contended that Asta underwent extensive presurgical preparation that was specific to the performance of a Roux-en-Y bypass, but that the procedure was inexplicably abandoned during the moments that preceded the surgery. He suggested that Asta’s injury could have been a product of the doctors’ abrupt change of the surgery.

Plaintiffs’ counsel explained that the gastrectomy involved the use of a machine that simultaneously cut and stapled the patient’s stomach. He also noted that the procedure involved the insertion of an esophageal stethoscope. He noted that the hospital’s records indicated that the foreign object contained staples, and he contended that the cutting tool severed the stethoscope. He claimed that the severed remnant was stapled into the stomach, and he contended that the remnant allowed leakage of bile that ultimately caused fatal peritonitis. The plaintiffs’ expert gastroenterologist noted that a gastrectomy be concluded until the surgeons have determined that the stomach’s newly created seal is airtight and waterproof. He opined that Muthusamy and Sheka failed to perform such a test.

Plaintiffs’ counsel further claimed that Muthusamy, Sheka and the hospital’s staff failed to properly address Asta’s postsurgical symptoms. He contended that Asta reported that he was suffering a fever and severe pain, and he claimed that the symptoms should have suggested the possibility of a leak. He contended that simple tests of Asta’s blood and temperature would have led to the diagnosis of a leak, but that such tests were not performed. However, defense counsel contended that Asta did not report such symptoms, and he claimed that Asta did not present any softline indication of the presence of an infection. He also claimed that the July 20 CT scan did not indicate breakage of the stomach’s artificial seal. He further claimed that an intra-operative test did not reveal any leakage of the seal.

Defense counsel also contended that Asta signed a document that indicated his consent to the gastrectomy and he claimed that the hospital’s records indicated that a gastrectomy had always been the intended procedure.

Defense counsel also contended that the foreign object was a probe that measured the patient’s esophageal temperature. He claimed that the probe was inserted by an anesthesiologist, that Muthusamy and Sheka were not aware of the probe’s presence, and that they could not have detected the probe.

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