TRIAL RESULTS

 
MEDICAL MALPRACTICE
PSYCHIATRIC MALPRACTICE
Dental Malpractice
OPHTHALMOLOGICAL MALPRACTICE
PREMISES LIABILITY
CONSTRUCTION
AUTOMOBILE LIABILITY

 

MEDICAL MALPRACTICE:

G&S Wins Defense Verdict for Trauma Surgeon — Jury Awards $24.5 Million Against Codefendant Hospital

Type of Case: Medical malpractice. Alleged failure to properly sedate patient and failure to leave appropriate sedation orders leading to the quadriplegia of a 21 year old college student.

Venue: New York Supreme Court, Kings County.

Background Facts: In this medical malpractice action, our insured physician was alleged to have been responsible for causing a 21 year old male college student, to suffer anoxic encephalopathy leading to flaccid quadriplegia, following his presentation to codefendant hospital after a serious car accident. The plaintiff presented with multiple injuries, including a severe liver laceration which was causing life threatening hemorrhaging. After the plaintiff was stabilized by the insured, he was noted to have complete range of motion in all extremities, eliminating the possibility that the car accident caused the quadriplegia.

Our client made a determination that, rather than an operation to stop the hemorrhaging from the liver laceration, the plaintiff should undergo an embolization procedure. Following this procedure, which successfully stopped the bleeding, he was transported to the surgical intensive care unit ("SICU") where our client continued to oversee and administer the plaintiff's care. The doctor then left the plaintiff in the SICU while he was still under complete sedation, so he could tend to other trauma patients.

Approximately 45 minutes later, the plaintiff began to wake up from sedation. He began to become agitated and he started to vomit. The SICU house doctor, without consulting our client or an anesthesiologist chose to put the plaintiff on a sedative which was ineffective. The plaintiff then became more agitated, leading to his pushing out his endotracheal tube, aspirating, and suffering an anoxic episode which lasted 15 minutes.

Plaintiff contended that our client deviated from accepted standards of care by improperly sedating the patient following the embolization procedure, and by leaving the SICU to attend to a different trauma patient without leaving any orders concerning the sedation of the plaintiff.

Special Problems: The assured was the physician responsible for the care of the patient and was the only remaining defendant at trial, since the codefendant hospital previously settled out of the case. Adding to this was the surprise testimony of two nurses who contradicted the insured's testimony that he returned with the plaintiff to the SICU after the embolization procedure.

Another "problem" with this case was the enormous sympathy factor. The plaintiff was a promising college student athlete with a 49 year work life expectancy. He was the Valedictorian of his High School class - the jury was shown his speech on video. After the anoxic event, he had tremendous difficulties with speech and was bound to a wheelchair, and requires a home-health aide 24 hours a day.

Our Strategy: Our primary defense was that it would have been inappropriate for our client to have given orders regarding sedation in advance of the patient waking up, since his injuries, especially to his liver, would have made the metabolization rate of the medication impossible to predict. In fact, we obtained a concession from plaintiff's expert that it would be preferable to have the doctor who was present when the patient woke, make decisions concerning further sedation. We also got plaintiff's expert to concede that the plaintiff was adequately sedated upon arriving at the SICU, and for at least an additional 45 minutes. Our expert anesthesiologist also testified that giving advance instructions with regard to sedation is risky, given that the wrong form of anesthesia or the wrong amount could have disastrous effects.

With respect to whether the doctor returned with the patient to the SICU, we were able to get one nurse to concede she could not recall if any of the attending doctors had returned to the SICU, and obtained a concession from the other nurse that she resented the insured's criticism of the failures that took place in the SICU after our client was called away. This allowed us to argue that the nurses were not credible with respect to this issue. Also, we argued that the insured's decision-making and treatment in the first hours after the plaintiff's initial presentation saved his life from his injuries due to the car accident.

Result: After a 24-hour deliberation, the jury found in favor of our client, rejecting the plaintiff's contentions that he had deviated by failing to make sure the plaintiff was adequately sedated, and by not leaving orders for the plaintiff's sedation when he was called away to handle another trauma patient.

The jury found that the hospital had deviated by administering the wrong anesthesia, and by failing to call an anesthesiologist when the plaintiff began to vomit. With respect to damages, although the hospital had previously settled for $3.75 million, the jury calculated plaintiff's damages against the hospital, as $5 million for past pain and suffering, $12.5 million for future pain and suffering, and approximately $7 million for past and future health costs and future earnings.

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G&S Obtains Defense Verdict in "Indefensible" Case for Anesthesiologist Who Allegedly Over- Administered Medication to a Surgeon, Leading to Permanent Disability and $6 Million in Lost Earnings

Type of Case: Medical Malpractice. Over-administration of drugs causing aspiration and Adult Respiratory Distress Syndrome "ARDS".

Venue: New York Supreme Court, New York County.

Background Facts: Plaintiff, a cardiovascular surgeon, claimed that he was over administered narcotics and sedatives, that caused him to develop aspiration pneumonia, that developed into Adult Respiratory Distress Syndrome "ARDS", causing permanent damage to his vision and lungs which completely disabled him as a surgeon. Plaintiff's economist testified that plaintiff's lost earnings would be in excess of $6,000,000.

Special Problems: We were told by consulting anesthesiologists that the case was not defensible on the medicine.

Our Strategy: We argued that our client had treated the plaintiff conservatively, that the patient was never noted to be overly sedated or in respiratory distress, that aspiration is an unpreventable occurrence, and that the aspiration pneumonia was a related to a pre-existing infection in his jaw. We also argued that the aspiration pneumonia evolved into ARDS because the plaintiff chose to have a subsequent operation against medical advice, and thereafter traveled to Florida by plane within 24 hours, a dangerous decision, given his lung infection.

Result: The jury came back with a defense verdict, finding our client had not committed any deviations.

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G&S Obtains Directed Verdict for Surgeon in Failure to Diagnose Cancer Case, After Co-defendant Settles for $1.35 Million

Type of Case: Medical Malpractice. Surgeon's failure to diagnose tumor.

Venue: New York Supreme Court, Kings County.

Background Facts: The decedent was a 26-year-old woman with a 3-year-old child, who died from retro-peritoneal sarcoma. The claim against our client was that, despite seeing the patient on three occasions, where plaintiff consistently complained of severe back pain, he never ordered a CT scan or sonogram, which would have revealed the presence of a large tumor.

Special Problems: Notwithstanding the co-defendant orthopedist ruled out any orthopedic problem, our client referred the patient for an MRI to evaluate a possible disk herniation, and when it came back negative, referred the patient to a back clinic instead of ordering a CT-Scan or sonogram. In the midst of the trial, the co-defendant settled his portion of the case for $1.35 million.

Our Strategy: We argued that the plaintiff did not present to our client with the symptomology that would justify ordering of a CT-scan or sonogram. We also argued that the tumor was such an aggressive form of cancer, her death was inevitable. We argued that there was no reason to suspect a tumor, in the absence of any palpable masses or other symptomology (loss of weight, nausea, loss of appetite). That it was only with the aid of hindsight that our client could be faulted for not ordering additional tests, since the patient was essentially asymptomatic except for pain in her back.

Result: We moved to preclude the trial testimony of plaintiff's proximate cause expert, on the grounds that he was not competent to testify as an expert, because he was not a medical doctor, but rather a Ph.D., whose research involved breast cancer, and not the particular type of cancer at issue in the case. After conducting a Frye hearing, the court precluded the testimony of plaintiff's expert and we moved to dismiss for plaintiff's failure to state a prima facie case, which the court granted.

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G&S Obtains Defense Verdict for Doctor Who Failed to Diagnose a Cancer Recurrence for 10 Months After Reading the Wrong CT-Scan Report

Type of Case: Medical Malpractice. Failure to diagnose a recurrence of lymphoma for a ten month period from CT-Scan.

Venue: New York Supreme Court, New York County.

Background Facts: The matter arose from our client's failure to diagnose a recurrence of lymphoma for a ten month period, as a result of erroneously reviewing a prior CT-scan report, instead of the current one, which was, in fact, abnormal. Plaintiff claimed infertility and foot and hand numbness as a result.

Special Problems: The plaintiff's husband brought the abnormal CT-scan report to our client's attention.

Our Strategy: Notwithstanding, our client's admitted mistake, we defended the case on the grounds that the delay did not proximately cause the alleged injuries. We argued that the size of patient's tumor was irrelevant, as was the late diagnosis. We also argued that the patient would have needed the same therapy regardless of when the diagnosis was made and that she suffered no ill effects during the period of delay, and that the complications which followed her chemotherapy were unavoidable.

Result: After plaintiff was granted a directed verdict on the issue of the deviation, the jury came back with a defense verdict on the issue of causation.

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G&S Obtains Directed Verdict on Claim of Unnecessary Surgery

Type of Case: Medical Malpractice. Unnecessary surgery.

Venue: New York Supreme Court, New York County.

Background Facts: During a colonoscopy on the plaintiff, a sessile polyp was located which could not removed. Despite benign pathology, surgical removal was recommended and the plaintiff was referred back to our client who performed a colon resection. Post-operative pathology reported that it was pre-malignant. Plaintiff brought suit for unnecessary pain and scarring, arguing that instead of surgery, he should have been monitored and that a further colonoscopy be attempted.

Our Strategy: We argued that based on the location, size and type of polyp found, that surgery was indicated; that since polyps can be of mixed-type and that since it could not be removed endoscopically, surgery was the only way to be certain there was no cancerous component to the polyp.

Result: The Court granted our motion for a directed verdict at the close of plaintiff's case.

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PSYCHIATRIC MALPRACTICE:

Gordon & Silber Obtains Defense Verdict for a Treating Psychiatrist and Hospital Alleged to have Prematurely Discharged Suicidal Patient Who Committed Suicide Four Days After Discharge

Type of Case: Psychiatric malpractice. Alleged negligent treatment and discharge of suicidal patient leading to plaintiff's death.

Venue: New York Supreme Court, Westchester County

Background Facts: In this psychiatric malpractice action, the plaintiff presented to our assured hospital after making three separate attempts to take his own life. The admitting psychiatrist involuntarily committed him. Plaintiff's wife alleged that he received no treatment or therapy over the next 48 hours, but was nevertheless discharged after an inadequate work up by our client, the treating psychiatrist, who had met him for the first time on the day of discharge. Four days after being discharged, the plaintiff committed suicide, at home, after ingesting pills and alcohol.

Special Problems: The decedent's wife testified that our clients discharged her husband without any consultation with her, and that she was personally opposed to the discharge. There also evidence that decedent had not received any substantial treatment during his 48 hours at the hospital. Plaintiff's expert testified that our client committed a departure by failing to keep the him in the hospital in order to allow his medications to become effective so as to further treat and evaluate him. Finally, the nurse who gave the plaintiff a test for depression could not recall his contacts with the plaintiff and had difficulty describing how he performed the depression scale.

Our Strategy: We argued that our clients had no choice but to release the decedent, given that at the time of discharge, he no longer satisfied the standard for involuntary commitment — "an imminent danger to himself or others", where the decedent was himself seeking discharge. We highlighted to the jury our client, who came across as extremely knowledgeable and dedicated and who testified she thoroughly evaluated the decedent prior to discharging him. We also highlighted that she set up an out-patient clinic appointment the next day and placed him on appropriate medications. We called the social worker who met with the decedent prior to discharge and who contradicted the wife's claim she was opposed to the discharge and that she was not consulted with. The social worker also confirmed that the decedent's condition had significantly improved. Finally, we called an expert with impeccable credentials who testified that our client had no choice but to discharge the decedent.

Result: Despite plaintiff's counsel requesting $1,750,000 in damages from the jury, the jury returned an unanimous defense verdict after only 2 ½ hours of deliberation.

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DENTAL MALPRACTICE:

G&S WINS DEFENSE VERDICT FOR DENTIST WHO ALLEGEDLY CAUSED PLAINTIFF'S FACIAL NUMBNESS FROM EXTRACTION AND ROOT CANAL

Venue: New York Supreme Court, New York County

Plaintiff, a 28-year-old online marketing consultant, underwent a root canal and extraction of the adjacent tooth performed and subsequently developed permanent facial numbness. He brought suit alleging malpractice against our client on the theory that it was a departure from accepted dental practice to perform both the extraction and root canal on the same day. He also claimed lack of informed consent, failure to refer to a neurologist or an oral surgeon following the procedure.

We put on testimony that numbness was a well known and understood risk of extraction which plaintiff was fully informed of as evidenced by his signature on consent forms. We also got plaintiff’s own expert to admit that it was not a departure to perform both procedures on the same day and that general dentists are qualified to perform the procedures and the follow-up treatment so that referrals were not necessary.

The trial judge dismissed the departure claims and the jury returned a defense verdict on the lack of informed consent claim.

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OPHTHALMOLOGICAL MALPRACTICE:

G&S Successfully Defends Eye Surgeon in Claim He Caused Blinding of Patient in an Unnecessary Surgery

Type of Case: Ophthalmological Malpractice. Claim that unnecessary cataract surgery caused blindness.

Venue: New York Supreme Court, New York County.

Background Facts: Plaintiff alleged she suffered a complete loss of vision in her right eye due to an unnecessary cataract surgery, without informed consent, where the surgeon had negligently placed an intraocular lens causing inflammation leading to her blindness. Plaintiff claimed the surgery was not necessary since her vision was not that bad and the risks were not explained to her. She testified that directly after the surgery she had no useful vision.

Special Problems: The case was transferred to G&S case shortly before trial. Our client never documented in her chart plaintiff's visual complaints which justified the surgery. Nor did she dictate her operative report until one month after the surgery. She also referred to the elderly plaintiff in her chart as a "malingerer" on several occasions.

Our Strategy: We set out to demonstrate that (1) our client attempted to treat plaintiff's vision with non-surgical means; (2) although not absolutely necessary, the surgery was the only way to improve plaintiff's vision problems; (3) plaintiff was fully advised of the risks of the surgery, including loss of vision; (4) despite the complication, the cataract surgery was well handled; (5) the surgery would have resulted in an improvement of vision if she had taken the prescribed eye drops; and (6) the loss of vision was not caused by the inflammation, but rather, a mini-stroke several days after the operation which could not have been predicted or prevented.

Result: The jury came back with a defense verdict, finding no malpractice.

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G&S Wins Defense Verdict for Ophthalmologist Alleged to have Failed to Test Plaintiff's Intra-Ocular Pressure Leading to a Permanently Dilated Pupil

Type of Case: Medical malpractice. Alleged failure to test intra-ocular pressure after presentation with signs and symptoms of inflammation inside the eye, allegedly resulting in a permanently dilated pupil, with permanent limitation in vision.

Venue: New York Supreme Court, New York County.

Background Facts: Plaintiff a forty-eight year old male presented to our client after experiencing redness, teariness, photosensitivity and head throbbing behind his right eye for five days. An eye pressure test was not conducted on the first visit. The patient returned three days later for an unscheduled visit with very high eye pressure.

Special Problems: The plaintiff has presented with photosensitivity and headache, neither of which would have been related to conjunctivitis.

Our Strategy: Our primary defense was that our client believed that he was confronted with a simple case of conjunctivitis and did not test the intra-ocular pressure, due to concern of further contamination to plaintiff's eyes. We also argued that plaintiff's uveitis caused the dilated pupil, not the intra-ocular pressure increase.

On cross-examination, we were able to obtain a concession from plaintiff's expert that damage from intra-ocular pressure would also have caused damage to the optic nerve as well as visual field defect, neither of which existed. We also got plaintiff's expert to admit there was no way to mathematically estimate what the intra-ocular pressure would have been when our client first examined the plaintiff. Our own expert testified that the trans-illumination and iris atrophy were evidence of damage from iritis, not increased pressure. We also presented evidence that had pressure caused the dilation, the dilation would have been evident when plaintiff was re-examined by our client three days later.

Result: After deliberating for a short period of time, the jury returned a defense verdict, finding no departure by our client.

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PREMISES LIABILITY:

G&S Obtains Defense Verdict for Restaurant and Owner of Airport in Slip and Fall Claim

Type of Case: Slip and Fall. Alleged failure to clear a coffee spill for that had been on the floor for at least 25 minutes.

Venue: New York Supreme Court, Queens County.

Background Facts: Plaintiff claimed that she entered the restaurant at 6:10 a.m. and ordered a bagel and paid for it. She claimed that she then advised the cashier of a large coffee spill on the floor by the condiment area. She then sat down and ate her bagel and read her newspaper. 25 minutes later she claimed she slipped and fell on the same coffee condition while walking out of the restaurant. Plaintiff suffered a badly fractured and dislocated ankle that required two surgeries.

Special Problems: One of our principal witnesses was in Texas doing Homeland Security training. We had to have him flown from Texas to testify on the last day of the trial.

Our Strategy: We argued that the plaintiff had concocted the entire story. That the floor was clean and dry, that she had not been in the restaurant for 25 minutes, but had purchased the bagel moments before the accident and that she fell turning from the cashier after receiving her change. We called as witnesses, the cashier, the Port Authority police officer who investigated the accident, as well as the Emergency Medical Technician and coworker of the plaintiff who came to her aid.

Result: The jury came back with a defense verdict finding that our client was not negligent. An interview with one of the jurors revealed that the jury did not find the plaintiff's testimony credible. What particularly impressed the jury was that plaintiff testified that she regularly read the newspaper in the restaurant every morning, but on cross-examination, she admitted that she did not in fact eat there regularly. This was critical in view of the dispute as to whether she had consumed the bagel prior to falling. In addition, the jury found it critical that the police officer's memo book listed a bagel as one of her possessions.

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G&S Obtain Defense Verdict in Favor of Property Owner Sued for Injuries Caused by Allegedly Slippery Driveway

Type of Case: Premises Liability. Negligent maintenance of driveway.

Venue: New York Supreme Court, Nassau County.

Background Facts: Plaintiff, a UPS driver, was making a delivery of an urgent next day package on our client's private road. It had snowed the day before. As plaintiff proceeded up our client's driveway, his vehicle popped out of gear as it began to slide on an ice condition, causing the truck to slid down the driveway, onto a precarious embankment. After emerging from his vehicle to deliver the package he slipped on ice walking down the driveway seeking to get help. Plaintiff argued that our client did not properly clear the causing an extremely dangerous condition. Plaintiff argued that our client used the premises for business and thus should have foreseen his presence.

Special Problems: Our client testified that after he put down salt in the morning, the driveway was not entirely free of snow and/or ice, and he did not "wait for it all to melt". Photographs taken around the truck at the bottom of the driveway showed snow on the pavement.

Our Strategy: We argued that our client had taken reasonable precautions to maintain the driveway. We presented evidence that our client hired an individual the day before to clean the driveway. That the next morning our client personally cleared the remainder of the snow off of the driveway and put down salt. We presented testimony from our client's tenant that when she left that morning the driveway was clear of snow and ice and safe to descend.

Upon cross-examination, the plaintiff admitted he was not certain that it was an ice condition that caused him to fall, as opposed to the driveway simply being wet. Cross examination of a police revealed that the plaintiff told him that he was hurt when he jumped from his truck while it was skidding down the driveway.

We also called a witness from UPS, who testified that UPS drivers are instructed to walk on soft snow surfaces as opposed to hard surfaces such as a driveway and/or walkway that could be slippery.

We also presented a snow and ice removal expert who testified that our client exercised the care of a reasonable homeowner in removing snow and ice from his driveway and applying salt. He explained how salt works on black-top surfaces, how it reacts differently depending in areas of sun and shade, and how salt causes the ice and snow to turn into water thereby making the surface wet.

Result: Jury verdict in favor of our client.

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CONSTRUCTION:

G&S Limits Verdict Against Owner/General Contractor to $30,000 Recovery Where Plaintiff had Knee and Ankle Surgery

Type of Case: Construction Accident. Trip over debris requiring knee and ankle surgery.

Venue: New York Supreme Court, Bronx County.

Background Facts: Plaintiff, a 35 year old window installer, tripped on concrete debris in a construction site, suffering injuries to his knee and ankle, each requiring surgical intervention and becoming a candidate for ankle fusion. Plaintiff sought recovery against our clients, the owner and general contractor, for negligence and violations of the New York Labor Law.

Our Strategy: At trial we argued that the job site was run safely in that 1) twelve laborers had been hired to remove debris at the site; 2) the area was inspected every thirty minutes; 3) weekly safety meetings were conducted; 4) the concrete chippers were working 5 to 10 feet away from the plaintiff, which we contended was reasonable. We also argued that the sole cause of the accident was plaintiff's failure to look where he was stepping. With regard to damages, we argued that plaintiff's two surgical procedures were minimally invasive, that he had made a satisfactory recovery, and that the claim he would need a fusion surgery for his ankle was speculative.

Prior to trial, we obtained surveillance tapes of the plaintiff. At trial we reached an agreement with plaintiff's counsel that we would not offer the surveillance tapes in exchange for his agreement to waive any claim for future lost earnings, diminution of earning capacity, or for any form of special damages, thereby limiting the case to past and future pain and suffering.

Result: The jury returned a verdict for plaintiff for a mere $100,000, and apportioned plaintiff with 25% liability. Plaintiff's motion to set aside the verdict was denied. Our clients paid $30,000.

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AUTOMOBILE LIABILITY:

G&S Obtains Defense Verdict on Liability in "Pedestrian Knockdown Case"

Type of Case: Motor Vehicle. Pedestrian hit by Client while backing up her car.

Venue: New York Supreme Court, Suffolk County.

Background Facts: Plaintiff claimed that our client backed a large black truck into him while he was loading his hatch, striking his knee and his parked vehicle. His wife drove their vehicle home and that night he experienced pain and swelling in his left knee. His doctor recommended an MRI and a conservative course of treatment, but his knee began to deteriorate. Two and a half years later he underwent surgery. Plaintiff claimed post-traumatic arthritis of his left knee and the need for future surgery.

Special Problems: Plaintiff's Board Certified Orthopedic surgeon testified that he believed that plaintiff suffered a traumatic tear of the meniscus as a result of the accident. His surgeon testified he would need additional surgery in the future and had a permanent limitation of use of his left knee due to accident.

Our Strategy: We focused our defense on the plaintiff's credibility and argued that his injuries pre-existed the accident. We demonstrated that he had exaggerated the extent of his injuries on other occasions. We provided evidence that his signed handwritten statement to the responding police officer made no reference to an injury to his knee.

We emphasized the lack of any evidence on the x-ray and MRI films consistent with a traumatic injury. We presented medical evidence that the knee surgery addressed a global degeneration of his knee, and not any acute traumatic injury. We thus, argued that the accident was not a substantial factor in causing the plaintiff's injuries, and that such injuries did not meet the threshold requirements of the law regarding serious injury.

We also presented video-tape evidence that he was attended a health club six weeks after the accident which he denied belonging to at his deposition. He claimed that it was his brother-in-law that accounted for the various appearances noted in the gym's records. We presented a witness from plaintiff's gym, who testified that a member's picture appears on a computer screen when their card is scanned.

Result: The jury found that our client was not negligent when she backed into the plaintiff. Plaintiff moved to set aside the verdict as against the weight of the evidence. We argued that the jury had entirely rejected plaintiff's credibility, finding that our client had not even struck the plaintiff and therefore, she was not negligent.