Case on hold?

Trial start in question as

appeal decisions awaited

By David Baker
Posted Friday July 27, 2012

The beginning of the trial in which former gynecologist Akia Abraham is alleged to have performed an unauthorized and unnecessary surgery, and Samaritan Hospital in Troy allegedly was negligent when it allowed him to practice may be delayed by pending decisions.

Both the plaintiff, Susan Stalker and Samaritan Hospital have appealed decisions made by state Supreme Court Justice Stephen Ferradino.

The Appellate Division of state Supreme Court issues its decisions on Thursdays, but this week  --  the last Thursday before the scheduled start of the trial --  no decisions on the appeals were  posted on its web page.

Samaritan is appealing Ferradino’s ruling that there are questions of fact to be decided by a jury on whether the hospital was negligent when it granted privileges to Abraham.  In a motion before Ferradino, the hospital is asking that the jury be asked for a verdict on that question - and then only if it finds that Abraham was negligent -- to hear testimony on the allegations against the hospital.  If that motion is granted, it would mean that without a decision from the appeals court, the trial might have to be put on hold if it starts next week.

It’s not clear what would happen if there was a hung jury.

Also pending is Stalker’s appeal of Ferradino’s ruling that the hospital and its nursing staff are not liable for Abraham’s actions.  Stalker’s lawyers have previously argued that the operating room staff should have spoken up when a procedure scheduled as a biopsy turned into a lumpectomy -- during which a large amount of what turned out to be healthy tissue was removed --  after Stalker was under sedation and without her knowledge or permission.

The appellate court justices are also being asked whether Ferradino erred when he disallowed a document filed by Stalker’s lawyers and refused to hear further argument on the matter.

The trial is scheduled to start at 9:30 on Monday in Ballston Spa.
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