Various causes of action available in 'ghost surgery' case
Facts:
Samara Meyers was diagnosed with a brain tumor in 1995 when she was 11 years old. She and her parents consulted with Dr. Alan Gardner for the surgical treatment of the tumor. They sought a second opinion from Dr. Fred Epstein, who also advised that surgery was the best option. Samara was admitted to New York University Medical Center to undergo the surgery on Aug. 21, 1995.
Samara's mother signed a consent form on her behalf that authorized "such diagnostic procedure and hospital care and such medical treatment by Dr. Epstein, his assistant or his designees as is necessary in his judgment." According to Samara's parents, Dr. Epstein told them that he would perform the surgery and that Dr. Abbott would assist him. Dr. Abbott performed the surgery on Aug. 22, 1995, and Dr. Epstein did not participate in the surgery at all. Dr. Abbott later did not recall even discussing Samara's operation with Dr. Epstein during the course of the operation, and also did not recall whether Dr. Epstein was even present. Nonetheless, Dr. Epstein met with Samara's parents in the surgical waiting area and told them that the operation "went fine."
Following the surgery, the Meyers claimed that the surgery caused Samara to experience paralysis on her left side, to have cognitive impairments, and to have suffered the loss of peripheral vision on the left side in both eyes.
Samara's parents brought suit on her behalf in February 2001. They alleged the following claims: (1) for battery against Dr. Abbott, (2) for medical malpractice against Dr. Epstein, and (3) for fraud against Dr. Epstein. They did not allege that the operation was performed negligently.
This decision was written by the trial court in ruling on the defendants' motion for summary judgment.