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Civilian MD Will Face Botched Surgery Claims

(CN) - A doctor must face claims that he botched a civilian contractor's ankle reconstruction at a U.S. military base in Kosovo, a federal judge ruled.

The dispute stems from an ankle-ligament reconstruction surgery that Lt. Col. Carl Hasselman M.D., a self-described experienced orthopedic surgeon, performed on Christopher Smith at Camp Bondsteel in December 2008.

But because Smith, who was then employed as a civilian contractor, suffered complications, Dr. Chason Hayes operated a second time.

Hayes reported that the faulty placement of non-absorbable stitches around Smith's dorsal cutaneous nerve after the first surgery caused the problems. Smith later sued Navesh Kandiyil M.D., a civilian medical officer who allegedly put the sutures in place. The parent company of Kandiyil's employer, International SOS Assistance, Inc., was later dismissed as a defendant.

But Hasselman, who says he has performed more than a thousand operations like Smith's, testified that he inserted the sutures, a point Kandiyil confirmed in his own testimony.

Kandiyil moved for summary judgment, arguing that there is no dispute of material facts and that he is immune from suit under the Federal Tort Claims Act. U.S. District Judge L. Felipe Restrepo denied the motion last week.

"Construing the evidence most favorably to Smith, there is a genuine dispute as to whether Kandiyil placed the sutures that caused his injury," Restrepo wrote. "A reasonable jury could find that he did despite the contrary testimony on the basis of Dr. Hayes' opinion that the suturing was egregiously negligent and inexpert, Kandiyil's admitted participation in the surgery ('I acted as a surgical assistant . . . I made a skin incision, I removed a bond fragment and assisted in the skin closure . . .'), Smith's testimony that Kandiyil told him that he 'did the suturing and sewed me up,' Dr. Hasselman's uneven recollection, and the two doctors' conflicting testimony about other details of the procedure." (Parentheses in original.)

The judge tossed aside Kandiyil's claim that because he was assisting Hasselman - who, unlike Kandiyil, is a government agent - the act's "foreign country" exception entitles him to sovereign immunity.

"The court notes, first, that Kosovo does qualify as a 'foreign country' despite its non-sovereign status at the time," Restrepo wrote. "Contrary to Kandiyil's assertions, however, neither the FTCA nor federal common law provides for a blanket extension of sovereign tort immunity to persons acting at the government's behest."

Kandiyil's essential defense of "derivative sovereign immunity" also failed, according to the ruling.

"Assuming, arguendo, that this defense is applicable, it does not entitle Kandiyil to judgment as a matter of law," Restrepo wrote. "It is far from clear that Kandiyil participated in Smith's surgery pursuant to a valid delegation of government authority and conformed to the government's directives. As the 4th Circuit recently wrote of a derivative immunity claim, Kandiyil is 'requesting immunity in a context that has been heretofore unexplored,' and to the extent the court can posit the relevant analysis, there remain genuine disputes of material fact."

International SOS boasts facilities in more than 70 countries, including 27 assistance centers and 35 clinics. It employs over 76,000 medical, security, and logistics providers worldwide.

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