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De Angelis v. New York University Medical Center3/19/2002
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Order, Supreme Court, New York County (Stanley Sklar, J.), entered December 5, 2000, which, in a medical malpractice action arising out of the same surgical procedure performed on successive days on twin sisters for the same medical condition, granted defendants' motion to sever plaintiffs' claims, unanimously affirmed, without costs.
Plaintiffs' claims were correctly severed, notwithstanding the common issue as to whether it was malpractice to perform a proctocolectomy with ileoanal anastomosis by keeping a patient in the lithotomy position throughout the entire procedure for more than six hours, in view of the predominance of differing facts that may bear on the issue of malpractice, including significantly different medical histories, and defendant surgeon's performance of the second surgery with knowledge of the complications that arose after the first (see, Bender v Underwood, 93 AD2d 747).
The latter circumstance has particular potential for prejudicing defendants.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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