Medical Malpractice - XIII/14-53

Case: No. 4297/94
Venue: Dutchess Supreme, NY
Date: 04-06-2000

PLAINTIFF(S)
Attorney: Martin P. Rutberg; Martin P. Rutberg & Associates; Poughkeepsie, NY
Expert: Andrew Wintraub; Economic Analysis; Rhinebeck, NY . Dr. James Rathmell; Management Jane Mattson Ph.D.; Life Care Planning

DEFENDANT(S)
Attorney: Charles E. Luceno; Meiselman, Farber, Packman & Eberz; Mt. Kisco, NY, for Moskowitz
Expert: None

Insurers: MLMIC for the first $1,000,000 of coverage. HANYS is the excess carrier

Facts: This action, which settled before opening statements, resulted in a settlement with a present value of $1,500,000. Pltf., age 43 at the time, had been a serviceman for Sears until he was injured in February 1993. The malpractice, which is the subject of this action, occurred during treatment for those injuries. The medical malpractice case had its genesis in Pltf.’s slip and fall on ice while working in 1993. Village Park Apartments was the Deft. in that premises liability case. The claims for medical malpractice began as third-party claims in that action, where upon Pltf. filed such claims directly. The premises claim was settled for $125,000, leaving the malpractice claims only. Memorial Hospital was dismissed on motion unopposed by Pltf., following completion of discovery. Pltf. had offered to release the Hospital pre-motion if Deft. Moskowitz would do likewise on the cross-claim, but Moskowitz declined and opposed the dismissal motion. Facts Pltf. underwent an anterior/posterior discectomy and fusion at L3-4 and L4-5 with titanium mesh caging and Moss-Miami segmental instrumentation. A Andrews Spinal Surgery Table was utilized to maintain the patient in the 90/90 position over a period of hours during the 91/2-hour procedure. Pltf. claimed that he awoke from anaesthesia with severe pain in his left lower leg and foot. Pltf.’s symptoms over the next 24 hours included loss of dorsiflexion, swelling, tissue hardening, and discoloration. Evidence indicated that pain was unremitting, despite morphine. Pltf.’s symptoms responded temporarily to ice and steroids with immediate resurgence upon discontinuation of those modalities. X-rays showed good hardware and anatomic positioning. A Doppler study of the left thigh was negative. No diagnosis was made until the third post-operative day, when Dr. Moskowitz requested a neurological consult. The neurologist diagnosed compartment syndrome on visual examination. This diagnosis was confirmed on visual examination by another orthopedist, and Pltf. underwent an emergency fasciotomy followed by complete debridement of the anterior tibialis. Pltf. claimed that Deft. caused the compartment syndrome because of improper intraoperative positioning and that he failed to recognize its classic signs and symptoms. Pltf. contended that Deft. was negligent in failing to take appropriate tests such as a venogram and tissue pressures, and failed to timely obtain appropriate consults. Facts Deft. would have argued that postoperative compartment syndrome is rare, and that its occurrence in the absence of known trauma is atypical, and that therefore, it was not a violation of medical standards to fail to suspect or recognize the condition.

Injury: Left drop foot; surgical scarring over the left lower leg; reflex sympathetic dystrophy. Pltf. claimed that he is unable to pursue gainful employment, and is dependent upon prescription opiates.

Verdict Information: This action, which settled before opening statements, resulted in a settlement with a present value of $1,500,000. Pltf., age 43 at the time, had been a serviceman for Sears until he was injured in February 1993. The malpractice, which is the subject of this action, occurred during treatment for those injuries. The medical malpractice case had its genesis in Pltf.’s slip and fall on ice while working in 1993 The jury deliberated for.