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Trial Win For Mackenzie C. Monaco in Defense of Surgeons, Physicians Group


Mackenzie C. Monaco successfully defended her client, an Albany-area physicians group and its employed physicians, in medical malpractice trial held in Albany County Supreme Court before the Honorable Kimberly A. O’Connor.

Ms. Monaco’s clients, together with an Albany-area hospital, were sued for negligence and medical malpractice by a plaintiff due to alleged complications from a surgical procedure.

In March, 2009, the plaintiff was diagnosed with high-grade dysplasia and carcinoma in situ of the esophagus. She underwent a significant surgical procedure at a local hospital which was performed by a physician employed by Ms. Monaco’s client, the Albany-area physician’s group.  A medical decision was made to allow the plaintiff’s chest wall incision to heal from the inside out (secondary intention) as opposed to sutures.  Plaintiff was discharged with home nursing services provided by a local nursing association. Plaintiff was seen by the home nurses until the end of May, 2009, who packed her wound with 2”x2” gauze and eventually taught plaintiff and her husband how to proceed independently with the 2”x2” gauze packing. From April to October, 2009, the plaintiff had post-surgical visits with the two physicians.  In October, 2009, the plaintiff underwent a debridement of the wound by one of the physicians and nothing unusual was found in the wound. Then, in April, 2010, over one year post-surgical procedure, the plaintiff was seen again by the defendant physician for an office visit.  He removed superficial gauze from the wound as well as an additional 2”x2” piece of gauze from the wound at that time.

Plaintiff claims that her wound would not heal in a timely fashion due to the 2”x2” piece of gauze left in her wound by a visiting nurse, and that the defendant physicians committed medical malpractice for failing to detect the gauze during her numerous post-surgical visits and during debridement of the wound, causing her prolonged recovery, pain and suffering.

Ms. Monaco argued that her clients did not deviate from the medical standard of care in their treatment of the plaintiff and did not commit medical malpractice. Specifically, she argued that chest wall incisions such as plaintiffs are known to be difficult to heal and prolonged healing is not unusual.  Further, she argued that all of the care and treatment provided by her clients was appropriate and that there is no evidence that the piece of gauze which was removed in April, 2010 had been there since April, 2009 and, in fact, if the gauze was in the wound at the time of the October, 2009 debridement, it would have been detected. Lastly, Ms. Monaco argued that there was no evidence that the gauze removed in April, 2010 caused any delay in the healing process or injury to the plaintiff.

In support of her defense, Ms. Monaco called an expert thoracic surgeon who is experienced in surgical procedures such as plaintiffs.  The expert opined that the alleged gauze could not have been left in the plaintiff’s surgical wound for over a year because, when the gauze was found, it was not discolored, odorous, disintegrating, or infectious but rather was in an unsoiled white condition which contraindicates the plaintiff’s theory that the gauze was left undetected in the wound for over a year.  Additionally, the expert thoracic surgeon opined that the defendants’ treatment of the plaintiff was within the standard of care and there was no deviation or malpractice.

At the conclusion of a one and one-half week trial, the jury rendered a verdict of no-cause of action on behalf of all defendants, finding that the plaintiff did not present any proof that the defendants department from accepted standards of medical care in their treatment of the plaintiff and, therefore, there was no negligence or medical malpractice by the defendants.

Mackenzie C. Monaco is a partner and litigator at the law firm of Carter Conboy in Albany. She practices in the fields of medical malpractice, professional liability, personal and premises liability, motor vehicle accident, labor law, product liability, and environmental law.  She represents physicians, hospitals, nursing homes and assistant living facilities, as well as commercial retainers, contractors and private individuals.   Ms. Monaco is a SuperLawyers® honored attorney and is the current Treasurer and Board of Directors member of the Capital District Trial Lawyers Association.

Carter Conboy was founded in 1920 and has law offices in Albany and Saratoga Springs, New York.  The firm serves clients in upstate New York, Connecticut, Massachusetts and New Jersey. For additional information about the firm, visit or contact the firm’s Director of Marketing, Stacy A. Smith, at 518-810-0516 or