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Plaintiff Alleges Assault


In this case of the People of the State of New York verses the defendants Smithtown General Hospital, Lorna Salzarullo, David Lipton, Harold Massoff, Lorna Salzarullo, and Mary Chiu, are charged with allowing a prosthetic devices salesman to participate in a meaningful way during a surgical procedure that was being performed at the Smithtown General Hospital without the knowledge or consent of the patient. This case is being heard in the Supreme Court, Criminal Term, of Suffolk County Part II.

Case Background

A New York Drug Crime Lawyer said the individual defendants are health care professionals, two are orthopedic surgeons, one is a registered nurse, and the other an anesthesiologist. The alleged incident took place on the third of July, 1975.

These defendants along with the Hospital were indicted in October of 1977. They were charged with acting in concert with each other in the commissioning of a crime of assault in the second degree, a felony charge that violates Section P.L.

Dr. David Lipton and Nurse Loma Salzarullo and the Hospital were charged in separate indictments for falsifying business records in the first degree. A New York Criminal Lawyer said the charges allege that with the intent to defraud the defendants omitted true entries in the required reports as a way to conceal the crimes of Unauthorized Practice of Medicine and Assault.

The defendants, other than the Hospital, have all moved to have the indictments against them dismissed on the basis that the evidence submitted against them to the Grand Jury was insufficient.

Grand Jury Evidence

The evidence that was submitted to the Grand Jury showed that on the morning of July 3rd, 1975, Dr. David Lipton assisted by Dr. Harold Massoff performed a total hip arthroplasty on a consenting patient. The surgery consisted of the right him of the patient being opened and the femur being removed. A Nassau County Drug Possession Lawyer said the trochanger was reset, the acetabulum cavity was reamed out and the methacrylate bone cement implant is placed in the acetabulum. A cup is placed in the cement the prosthesis is inserted into the cavity, the trochanter is reapproximated and the patient is sewn up.

Instrumentation for the surgery was provided by William MacKay, who is the general sales manager of the company that sold the prosthesis that is used for hip arthroplasty. Mr. MacKay was in the operating room during most of the operation that started at eight in the morning and ended at 11:30 a.m. A Queens Drug Possession Lawyer said once the surgery was completed an x-ray was taken and it was discovered that the head of the femur had popped out of the acetabulum, in other words, the joint was dislocated.

Dr. Lipton requested that Mr. MacKay return to the hospital. Mr. MacKay came back to the hospital, scrubbed and entered the operating room. He observed that Dr. Massoff had reopened the hip and had tried to remove the prosthesis with a mallet. Mr. MacKay offered to and was allowed to use the same instrument on the patient.

Case Discussion and Decision

There are serious questions about whether or not an assault occurred in this case. When reviewing the facts, it is found that the crime does not meet the definition of an assault. The evidence does not support this charge and the motion for this charge to be dismissed is granted.

However, the charges of falsifying records will not be dismissed and a further proceeding in this matter will be scheduled. It is felt that there is enough evidence to warrant this action.

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