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Defense Verdict In January 2011, Mr. Federico successfully defended the Chief of Sports Medicine at a major New York orthopedic institution (New York County Index #107065/05) in a trial involving claims of negligence in the performance of a total joint arthroplasty. The jury’s unanimous verdict was based, in part, on the defendant doctor’s explanation of the complex procedure through the use of actual surgical components and anatomic models at trial. Defense Verdict, Supreme Court, Kings County Andrew Garson won a unanimous jury verdict on behalf of the attending obstetrician accused of mismanaging the labor and delivery of a pregnant patient who presented to him with premature ruptured membranes. A Cesarean section was performed, due to questions regarding the infant’s condition in the womb. Nevertheless, at delivery the infant was suffering from severe respiratory distress and systemic organ failure, and experienced a major brain hemorrhage. He experienced severe neurologic disorders as a result. At the time of trial, this six year old child was confined to a wheelchair, could not engage in any volitional use of his extremities, was totally unable to perform any activities, could not communicate, and had a very low intellect as a result of severe brain damage. He will require total custodial care and likely institutionalization for the rest of his life. The jury was persuaded that the child’s condition was not related to the treatment of the health care professionals, but due to the underlying conditions which caused his mother to experience premature labor. Defense Verdict, Supreme Court Nassau County A verdict in favor of Mr. Garson’s client, a distinguished spinal surgeon, was recently returned in a case brought on behalf of a 36 year old radiology technician who had undergone a lumbosacral spinal fusion for treatment of a herniated disc. The patient alleged that the surgery was improperly performed, because the fixation hardware was improperly inserted and a screw penetrated into the spinal canal and compressed a nerve root, causing severe pain, neurologic deficits, and permanent injury. This position was supported by post-operative imaging studies, which showed the screw in an improper position. Patient required additional corrective surgery, and maintained she was permanently injured with constant pain, ambulation problems, and difficulty at work and in recreational activities. The defense proof, demonstrating that the surgeon took all indicated, proper steps and skillful technique to insure that the surgical fixation hardware was properly placed and evaluated, was ultimately accepted by the jury. Defense verdict—Supreme Court, New York County Recently, GDC partner Daniel Federico successfully defended a Manhattan Medical Center at trial in a claim involving a failure to diagnose compartment syndrome, leading to a below knee amputation (N.Y. County Index # 100274/03). The matter involved allegations that the hospital, its residents and the attending vascular surgeon failed to appreciate the development of compartment syndrome in the decedent’s lower extremity following performance of an iliac-peroneal nerve bypass. The decedent developed a post operative complication which led to the development of a foot drop, ischemic gangrene, foot ulcer, osteomyelitis, and a below knee amputation. At trial, the defense established that the patient developed a clot in the bypass graft, a recognized complication, which was promptly recognized and appropriately treated surgically. As the result, however, of the surgery and the patient’s long-standing vascular compromise, the decedent developed ischemic neuropathy resulting in damage to the peroneal nerve (foot drop). Ultimately, he underwent an amputation at another facility despite a functioning bypass graft. The trial jury unanimously accepted the defense contention that this patient never developed compartment syndrome, based upon the clinical findings noted in the chart, testimony of the attending surgeon and concessions made by plaintiff’s expert under cross examination. Further, through the use of enlargements of portions of the hospital chart, the jury believed that the post-operative management of the patient by the hospital’s residents and nurses reflected sound care. Defense Verdict – Supreme Court, New York County (Index # 110516/06) In June 2009, Steve Rubin obtained a defense verdict on behalf of a general surgeon alleged to have mistakenly sutured the plaintiff’s ileo-inguinal nerve in the course of a hernia repair surgery. The plaintiff, who complained of groin pain and sexual dysfunction since the defendant’s hernia surgery, subsequently consulted with another surgeon who suspected an intra-operative nerve injury. That surgeon – who served as plaintiff’s expert at trial – documented and testified that upon opening the patient he found the ileo-inguinal nerve entrapped in a suture and mesh. While acknowledging that suturing the nerve would be malpractice, the defense argued that the subsequent surgeon’s operative findings were untrustworthy and that the post-operative symptoms were more consistent with nerve entrapment syndrome, an unavoidable and non-negligent complication in a small number of hernia surgeries. The jury unanimously found in the defendant surgeon’s favor.
Defense Verdict—Supreme Court, Bronx County Recently, GDC partner Daniel G. Federico won a defense verdict on a brain-damaged infant claim in Supreme Court, Bronx County, one of the country’s most challenging venues. (Bronx County Index # 16765/06) The matter involved allegations that the infant was caused to suffer brain damage as the result of mismanagement of the labor and delivery of his mother by the defendant, a Board Certified Ob/Gyn. The infant was diagnosed with an infarction in the left middle cerebral artery, first seen on an MRI of the brain at approximately 14 months of age. As the result, he suffers from brain damage, cerebral palsy, right sided hemiparesis and learning delays, which, plaintiffs alleged, was caused by deprivation of oxygen during labor and delivery. At trial, Plaintiffs claimed that throughout labor, the fetal heart tracings showed evidence of persistent bradycardia (a heartrate below 110 bpm), which, together with the presence of meconium stained amniotic fluid, were evidence of fetal distress requiring a cesarean section delivery. Plaintiffs also claimed that the defendant should have placed an internal fetal monitor and a scalp pH in view of nonreassuring external monitor tracings, and that the failure to do so was a departure from the standard of care. Plaintiff’s experts testified that the infant’s injuries were consistent with an injury occurring at or near the time of delivery. Defendant demonstrated that the external monitor tracings showed a normal reactive fetal heart pattern, with evidence of accelerations of the fetal heart and no late decelerations. Following rupture of membranes, the tracings showed no evidence of distress. Nonetheless, based on the presence of meconium, defendant alerted the pediatricians, who were present at birth. Defendant’s pediatric neurology expert testified that the infant’s condition at birth, notably the absence of abnormalities on neurologic exam within the first 24 hours of life, militated against the injury being the product of birth asphyxia, a point conceded by Plaintiff’s expert on cross examination. Moreover, had the injury been due to hypoxia, the infant’s problems would likely be global and involve multiple organs, none of which occurred here. Defendant also called a board certified neuroradiologist, who testified that the MRI films of the brain showed a pattern inconsistent with hypoxia. The jury deliberated six and one half hours over two days, during which time they asked to view the MRI films and the fetal heart tracings.
Catherine Munet v. Prasuna Nukalapati, Index No.: 29653/02, Bronx County Louis Jakub recently obtained a defense verdict on behalf of a Bronx County pediatrician who was sued by the family of a 6 year-old girl for an alleged failure to diagnose pneumococcal meningitis. On March 19, 2002 Catherine Munet, then six years-old, was taken by her mother to Dr. Nukalapati’s office for evaluation of flu-type complaints. The mother testified that she advised Dr. Nukalapati that her daughter developed a fever two days prior, was vomiting, coughing and “stiff all over.” Dr. Nukalapati performed a physical examination and diagnosed influenza/viral syndrome (the common flu). Mediation was prescribed for the cough and the mother was instructed to bring the child back for a further check-up in seven days. Less than two days later, Catherine’s mother awoke at approximately 4:00 a.m. and observed her daughter suffering a seizure. The child was taken to Jacobi Hospital via EMS where a lumbar puncture was performed and pneumococcal meningitis was diagnosed. Head CT scans were performed which revealed hydrocephalus and the child was immediately started on intravenous antibiotics. During the Jacobi hospitalization, the child was diagnosed with complete bilateral deafness. Mr. Jakub presented evidence demonstrating that there was no indication for a lumbar puncture when the child was seen by Dr. Nukalapati, given the documented complaints during the office. The jury agreed, finding that the child’s pediatrician acted reasonably by diagnosis influenza, despite the fact that meningitis caused complete deafness.
Chen vs. Ho – New York County Index # 24207/05 In October 2008, Steve Rubin obtained a defense verdict in a case involving allegations that the defendant otolaryngologist negligently failed to diagnose a Stage IV thyroid cancer at eight visits over an eighteen-month period. The jury unanimously agreed that the defendant doctor’s assessments and diagnoses were entirely appropriate.
Tucker v. Martin Index No. 35028/04 Recently, partner Daniel G. Federico won a defense verdict in State Supreme Court in Brooklyn on behalf of a Board Certified Ob/Gyn sued in connection with the death of a 32 year old mother 16 hours following the delivery of her first child. Plaintiff's claimed that the defendant doctor failed to appreciate severe preeclamptic toxemia following delivery and prematurely ordered the discontinuance of magnesium sulfate, a drug given to prevent seizures. Following discontinuance of the drug, the plaintiff's-decedent was noted to have experienced seizure-like activity followed by unresponsiveness. A code was called and resuscitative efforts failed. The decedent was survived by her husband and one day old son. At trial, the defendant asserted that the decedent died as the result of an acute and unpredictable event, more consistent with a pulmonary embolus and that the death was unrelated to the discontinuance of the magnesium sulfate. Defendant maintained that the decedent never met the criteria for severe preeclampsia and received an appropriate course on the drug, which was discontinued only after her vital signs and blood work normalized. The jury returned a defense verdict in fewer than two hours. The jurors were persuaded by the concessions of plaintiff's obstetrical expert on cross examination regarding the absence of clinical evidence of severe preeclampsia and the management of the patient's hypertension.
Sutton v. Kassapidis, Queens County, Index No. 8896/05 Recently, Daniel Federico won a unanimous jury verdict on behalf of a Board Certified orthopedic surgeon sued for negligence in the performance of a total hip arthroplasty. The defendant doctor performed hip replacement in a then-68-year-old woman with osteoarthritis and two prior hip replacements on the opposite side. During the procedure, cementless, porous in-growth components were used. Intraoperatively, trial components were fitted, full range of motion was achieved and post operative The defendant demonstrated at trial that the orientation of the acetabular component was within the safe zone for placement of such components and that none of the complications associated with malpositioned components came to fruition in this case. The defendant showed the jury, through demonstrative use of an actual joint component and post operative films and bone scans, that the components were seated properly and that there was no evidence of loosening, dislocation or impingement such as to require revision surgery fourteen months later. Ultimately, after deliberating for less than two hours, the jury was persuaded that the placement of the joint components was an appropriate exercise of medical judgment by the defendant doctor.
Doe, M.D. v Sheth, M.D., Supreme Court, Kings County, Index No. 19197/05 In May, 2008, Louis Jakub successfully defended a surgeon in a Kings County trial brought by a physician-plaintiff who alleged the surgeon negligently repaired an inguinal-scrotal hernia causing testicular necrosis which resulted in the loss of the physician’s right testicle four days after the hernia surgery. Mr. Jakub convinced the jury that the testicular necrosis was caused by venous thrombosis and not due to the “ligation of multiple vessels in the spermatic cord” as testified to by the plaintiff’s subsequent-treating surgeon.
Yarczower v Piccone, M.D., Supreme Court, Richmond County, Index No. 100228/05 In January, 2008, Louis Jakub obtained a defense verdict on behalf of a cardiothoracic surgeon who allegedly rendered negligent post-operative care to a 69-year-old married female. The plaintiff had alleged that the surgeon failed to timely diagnose and treat a post-operative small bowel obstruction which perforated, causing sepsis and ultimately death. The jury concluded that the surgeon appropriately treated the patient despite the unfortunate outcome.
Williams v Morgan, Kings County, Index No. 24207/05 In May, 2008, Steve Rubin earned a defense verdict in a Brooklyn County trial involving the loss of vision and eventual death of the left eye (phtisis bulbi) in a two-year-old infant. The defendant’s treatment began with surgery for a bleed and cataract which had restored the child’s vision by the time of discharge from hospital. The doctor followed the child at numerous clinic visits over the next several months as the eye unfortunately deteriorated with persistent inflammation, secondary, in part, to his placement of an artificial intraocular lens in the original surgery.
Anna & Tomasz Zykowska v. Good Samaritan Hospital et al, Suffolk County, Index No. 01152/05 Andrew Garson recently won a unanimous jury verdict on behalf of three obstetrician gynecologists accused of performing an unnecessary total abdominal hysterectomy and bilateral removal of tubes and ovaries in a 37-year-old woman who wanted more children. The defendants did a diagnostic laparoscopy upon plaintiff to evaluate ovarian cysts, which they thought appeared suspicious for cancer despite benign frozen section pathology findings, as well as a normal uterus. Several days later, the final pathology analysis reported the presence of borderline tumor cells in the ovaries, a slow growing, indolent condition with a 99% statistical normal life expectancy if timely treated, often with fertility-sparing surgery or close monitoring. Plaintiff was seeing a fertility specialist at the time. The jury was persuaded that our clients used their best judgment in this emotional setting.
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