On April 15, 2012, Clifford Rizzo returned to New York from a Caribbean vacation in severe back pain. Mr. Rizzo was a large man, over 300 pounds, and suffered from multiple ailments including diabetes, high cholesterol, high blood pressure, and narrowing of the carotid arteries, among others.
It turned out that he had an epidural abscess. The abscess was in his lumbar spine, extending upward as high as an MRI showed. Mr. Rizzo had intermittent weakness in his left leg. Getting a complete lumbar spine MRI was complicated by Mr. Rizzo’s difficulty fitting in to the MRI scanner, and his anxiety in attempting it. Imaging the thoracic and cervical spine was also problematic. Mr. Rizzo refused tests. His doctors planned an MRI under anesthesia.
Before the MRI under anesthesia was done, Mr. Rizzo woke up at 4:00 a.m. with sudden left arm weakness. All concerned attributed the weakness to an ascending epidural abscess. The MRI under anesthesia was planned to locate the abscess, with decompression surgery likely once that was done.
Mr. Rizzo’s second MRI showed that the abscess had been successfully treated with antibiotics, and investigation turned to identify other sources of his symptoms. Two CT scans of his brain were normal, but on the next day, an MRI (again under anesthesia) revealed a watershed stroke.
Mr. Rizzo died of unrelated causes three years after his stroke. His widow continued his medical malpractice lawsuit. She claimed that his medical attending doctor should have anticoagulated Mr. Rizzo due to his history of atrial fibrillation, that he should have been on two hour neuro checks due to his threatening neurologic deficits, and that he should have called a neurologist, or a stroke code, as soon as he learned of Mr. Rizzo’s left arm weakness. She also claimed that the orthopedics team, including his orthopedic attending surgeon, should have called a neurologist, or a stroke code.
Both defendants claimed that Mr. Rizzo’s stroke was not amenable to treatment because it was a watershed (low-flow) stroke, not an embolic stroke, with no clot to bust, because he had symptoms upon awakening, and was therefore outside the temporal window for treatment with clot busters, and because he had an epidural aspiration two days before, and with possible spinal decompression planned, was too high-risk of hemorrhage to be given clot busters.
The orthopedic surgeon claimed that diagnosing strokes was outside his area of expertise. The medical attending doctor claimed that he was not notified of the events in question until he rounded on the patient in the morning, much too late to order clot busters. Mr. Rizzo’s stroke was eventually diagnosed approximately 36 hours after the onset of symptoms.
The jury determined that the medical attending doctor was not negligent for allegedly failing to prevent the stroke. It found that neither the medical attending doctor nor the orthopedic surgeon were negligent for failing to immediately call a stroke code or a neurologist.
The case was settled after verdict pursuant to a high-low agreement. James M. Furey, Jr. represented the medical attending doctor.Read More
An ophthalmologist performing cataract surgery on an octogenarian patient encountered severe iris prolapse attributed to prior use of uroxatrol and floppy iris syndrome. After repositing the iris, the surgeon encountered a corneal wound burn, but ultimately completed the surgery through a different incision. The patient was left with severe astigmatism, updrawn pupil and cystoid macular edema. These conditions were treated by others, and the plaintiff eventually achieved good visual acuity in the eye, albeit with blurriness, glare and distorted vision.
The plaintiff claimed that the burn could only have a occurred if the surgeon ignored the “no aspiration” warning on the Alcon Centurion phacoemulsification machine. The surgeon and scrub nurse both testified that no alarm went off.
After two hours of deliberation, the jury returned a unanimous verdict for the defendant. James M. Furey, Jr. represented the defendant.Read More
A Nassau County jury rendered its verdict in favor of a plastic surgeon after multiple failed attempts to reconstruct the patient’s right breast after double mastectomy. The jury found that the patient provided appropriate informed consent, and that the surgeon adhered to accepted medical practice. James M. Furey, Jr. represented the surgeon.
The procedure at issue was a DIEP (Deep Inferior Epigastric Perforator) free flap reconstruction. This is a microsurgery technique, in which two flaps of tissue are removed from the abdomen and reattached in place of the breast tissue. Although the left breast reconstruction worked without complication, the surgeon encountered repeated clotting in one the two veins relied upon to drain the right breast flap. It became clear that the flap was not viable, and it was removed. The surgeon then proposed a latissimus dorsi flap procedure with artificial implant. The procedure was initially successful, but the tissue expander eventually became exposed and had to be removed. The surgeon proposed autologous fat transfer for a third attempt, but the patient declined.
The plaintiff contended that neither surgery should have been offered, because the patient was high-risk due to morbid obesity. The surgeon countered that he had good results, even with morbidly obese patients. The jury deliberated for approximately two hours.Read More
Recently, one of our partners, Thomas G. Leverage, got a defense verdict in a case that involved birth related injuries and then also injuries to the mother post-partum. After a month-long trial in Supreme Court, Kings County, the jury returned a verdict as to both the infant’s claims and the mother’s claims in favor of our client, the treating OB/GYN and the co-defendant Brooklyn hospital.
The issue in the infant case concerned allegations that the labor was induced without medical indications at 37 weeks and 4 days of gestational age. The parents alleged that the induction was done for the convenience of the doctor’s schedule and was done 17 days prior to the due date. During the trial, the plaintiffs’ experts argued that the infant’s deficits of pervasive delayed development, respiratory problems and neurologic injury were the result of this premature (before the due date) delivery. Issues in the case concerned whether medical indications were required to induce labor between 37 weeks and 39 weeks of gestational age.
The defense produced evidence that medical indications were not required to induce labor in 2013 between 37 and 39 weeks. However, in this case, there were very serious medical indications that justified the induction. The mother had presented to the hospital at 37 weeks and 4 days with complaints of decreased fetal movement, mild headache and mild blurry vision. Although these complaints were documented in the hospital chart, the mother denied ever giving this history. The defense argued that these complaints could have signaled fetal problems as well as a serious condition called preeclampsia. The treatment for these conditions was to induce labor and deliver the baby. The fetal monitoring strips showed no evidence of fetal distress. The baby was born with APGARS of 4, 5, and 9 at one, five, and ten minutes. The baby’s stay in the NICU was uneventful and the baby was maintained on room air.
The mother’s case involved claims of infertility caused by retained products of conception left in the uterus after the delivery of the baby. This required two D & C (dilatation and curettage) procedures to empty the uterus. As a result of these procedures, it was alleged that the mother developed Asherman’s syndrome resulting in infertility.
The defense argued that the images on the sonograms of the uterus were non-diagnostic and the use of the phrase “retained products of conception” was a presumptive or working diagnosis. The final diagnosis was given in the pathology reports following the D & Cs which indicated there was no retained products of conception. The vaginal bleeding experienced was due to the uterus not contracting fully after birth (subinvolution of the uterus). The mother admitted that she was warned that the second D & C performed so close in time to the first D & C could damage her uterus. Nevertheless, she found a non-party OB/GYN who performed the second D & C at a different hospital than the hospital where the first D & C was performed.
In summation, the plaintiff’s counsel suggested that the damages for these claims were somewhere between $15 million and $95 million dollars. The jury returned a verdict in favor of the defendants in less than an hour.Read More
James M. Furey, Jr. successfully defended an eye surgeon in a case involving the loss of vision in the surgical eye. The plaintiff suffered from floppy iris syndrome. During the first attempted placement of a posterior chamber intra ocular lens, capsule integrity was lost. An anterior chamber lens was successfully placed in a second procedure two weeks later, but the patient developed increased pressure and bleeding leading to corneal staining and loss of vision. The plaintiff contended that surgery was negligently performed. The doctor contended the outcome was a known risk of the procedure. The jury returned a unanimous verdict for the defendant.Read More
Susan Darlington secured summary judgment dismissing all claims against a radiation oncologist except informed consent. James M. Furey, Jr. tried the informed consent claim to defendant’s verdict. After being diagnosed with breast cancer, the plaintiff underwent a mastectomy with immediate reconstruction via tissue expander and permanent implant. Given the choice between radiation treatment followed by exchange of permanent implant six to nine months later, or exchange of permanent implant followed by radiation treatment six weeks later, the plaintiff opted for exchange first. Plaintiff suffered loss of the permanent implant from radiation, and never underwent further reconstruction. She contended that the radiation oncologist failed to warn her of that risk. The radiation oncologist testified that he would leave that choice between the patient and non-party plastic surgeon. The jury returned a unanimous verdict in favor of the radiation oncologist.Read More
Sue and Tom looked at the litigation process from the commencement of a medical malpractice lawsuit, through discovery, through the trial, through the verdict and then to the potential appeal. At each step of the process, Sue and Tom explained the protections afforded to a defendant physician by the law. More importantly, they next described how in certain circumstances these protections are seemingly eroded in practice by other aspects of the law or by judicial decisions.
As an example, Sue and Tom talked about the protections afforded to medical malpractice defendants by a 2.5 year statute of limitations. This protection can in certain circumstances seem to disappear however in the event a physician is impleaded years later by another defendant or by application of the relation back doctrine. In a recent case in our office, two physicians were added as defendants in the case 10 years after the event in question! (more…)Read More
Rogers v. Sermoneta – James Furey, Jr. – Architectural malpractice and breach of contract.
Calloway v. Barone – James Furey, Jr. – Plastic surgery on plaintiff’s face.
Benlos v. Ramenofsky – Kenya Hargrove – Pediatric vascular surgery.
Carman v. Huntington Hospital – James Horan – lumbar laminectomy.
Brown v. Riverhead – Frank Catelli – Premises liability / lack of notice.
Farnham v. White – Tom Leverage – neurologically impaired infant.
Tom represented the medical group that employed the internists who treated the patient as well as the radiologist who read the x-ray in question. The internists were represented by separate counsel.
The case presented very many interesting issues of medicine and law. After a protracted discovery phase, several of the co-defendants were removed from the case by summary judgment motions. (more…)Read More
The day after the test, the plaintiff’s right breast became painful, swollen, and discolored. Her injury progressed to a full skin thickness breakdown, with some necrosis, a prolonged course of treatment with a plastic surgeon, and ultimately, permanent scarring. Five years after the events, she was still treating with a plastic surgeon for improvement of her scar. The jury reached a unanimous verdict, finding that despite the plaintiff’s injuries, the technician adhered to accepted practice in administering the mammogram.Read More
In Adams v. Kohan, James M. Furey, Jr. secured dismissal of a medical malpractice action on statute of limitations grounds, and successfully defended the plaintiff’s appeal. The Court rejected plaintiff’s argument that the statute was extended by the continuous treatment doctrine. In Signorelli v. Pacs Industries, he proved that switchgear manufactured by the defendant was not a defective product.
On an appeal defended by Susan Darlington, the Appellate Division, Second Department affirmed the trial court decision dismissing premises liability claims against our clients for lack of notice. Vitello v. AMB Property Corp., 97 A.D.3d 567. After denial of our summary judgment in Dolan v. Halpern, 73 A.D.3d 1117, Ms. Darlington successfully prosecuted our appeal. (more…)Read More
One of our partners, Tom Leverage, obtained a defense verdict for a radiologist accused of misreading mammograms in a breast cancer case. The trial was held in Supreme Court, Suffolk County before Judge Leis in Central Islip. The jury returned its verdict in about 15 minutes.
The case alleged against the radiologist was a failure to observe, report, and communicate what was alleged to be a suspicious lesion seen on the right CC view and a cleavage view in October 2006. The plaintiff’s expert testified that this was a new lesion not seen on prior films and spiculated in shape. Eight months later the plaintiff had a 2.5 cm cancerous tumor removed from her right breast. It was found to be a very aggressive Stage II tumor. (more…)Read More
The case was unusual in that the patient himself was a physician, his wife was an OB/GYN physician, and four of his five sisters were physicians. The patient’s family was active in selecting the surgeon to do the delicate and dangerous surgery involving the pancreas. The five hour operation was a success, but the patient suffered from a pulmonary embolus one day post-operatively. He was transferred to the Surgical Intensive Care Unit and had a somewhat rocky course. Four days later he was transferred to a telemetry floor. The patient exhibited mental status changes and had respiratory difficulties. He then had a significant drop in his hematocrit and hemoglobin values requiring transfusions with 3 units of blood. The next day he had a significant rise in his white blood cell count. His abdomen had been distended for days and he had over the course of the hospitalization gained over 40 pounds from fluids. A CAT scan was ordered of the abdomen which the patient initially refused but later signed a consent for this exam. Shortly after physical therapy around noon time, he decompensated and a code was called. The patient was intubated and given more fluids. (more…)Read More
The Petitioner had been a volunteer firefighter with the Bethpage Fire Department since 1987. He was also employed as an Emergency Dispatcher and Maintenance Worker by the Bethpage Fire District. In 2005, while at a training session, he switched Hurst tool (jaws of life) tips from a Syosset Fire Department vehicle with the ones on a Bethpage Fire Department vehicle. The switch of tips was discovered in 2006. He was suspended from the Bethpage Fire Department on November 15, 2006. He was subsequently informed of the charges against him in May of 2007. An Article 75 Civil Service Hearing was held on February 7, 2008 and March 4, 2008. The Hearing Officer determined that there was substantial evidence to establish the charges against the claimant concerning the switching of the tips. On September 10, 2008, he was formally terminated from the Bethpage Fire Department and the Bethpage Fire District. (more…)Read More
The mystery began when a patient in a hospital died on the operating room table during procedures to place a Quinton dialysis catheter into the left internal jugular vein. Shortly after the operative procedures were completed, the patient went into ventricular tachycardia and a code was called. Within minutes, the patient became pulseless. Efforts included CPR, shocking the patient, and the administration of medicines. After 35 minutes without success, the surgeon inserted a temporary pace maker into the left femoral vein and tried to get it into the right ventricle of the heart. Minutes after passing the pace maker, a chest x-ray was taken showing the pace maker in the superior vena cava and a minimal to moderate left pleural effusion. Unfortunately, nothing worked and the patient expired after approximately 55 minutes of resuscitative efforts. (more…)Read More
Suffolk County Supreme Court Justice , the Honorable Emily Pines granted Summary Judgment, dismissing all claims against two obstetrricians, an anesthesiologist and several resident physicians in the case. The infant plaintiff was born 7 weeks premature following an emergency Caesarean Section performed for a complication called prolapsed umbilical cord. The Caesarean Section saved the child’s life. Plaintiffs claimed that the chiild suffered hypoxic brtain injury and various physical, behavioral and cognitive deficits including autism spectrum disorder and cerebral palsy due to failure to keep his mother at complete bedrest and delay in treatment. (more…)Read More
The plaintiff presented to the surgeons with complaints of intense intermittent abdominal pain. The surgeons suspected gall bladder disease, but test results were ambiguous and they counseled against immediate surgery. When plaintiff’s symptoms did not resolve in response to treatment, she had her gall bladder removed by another surgeon, and sued the defendants for performing surgery in the first instance. The jury found the surgeons’ caution reasonable, and rejected the plaintiff’s claims.Read More
How do juries decide medical malpractice cases? What factors come into play? What role does health literacy play? These questions were recently addressed in an article in DRI’s July issue of its monthly magazine, For The Defense. One of our partners, Tom Leverage, collaborated with Sue Seif of Seif and Associates to produce this article.
Sue Seif is the founder of Seif and Associates, a company that specializes in medical graphics for the defense bar. Together with Tom Leverage, they joined forces bringing their unique perspectives and experiences to these questions. Sue drew upon her knowledge and research in the social sciences especially in the area of the communication of complex concepts. (more…)Read More
Three related actions were consolidated for joint trial relating to a 2002 house hire that damaged three attached townhouses in Bronxville, N.Y. The owners of Unit 1 hired a roofing company on behalf of himself and Unit 2 to perform work on a shared roof. During the course of the work, a fire started when an open flame being used to solder copper gutters ignited a wood fascia board. The fire caused damage to Units 1 and 2 and spread to attached Unit 3, owned by a neighbor. The fire was extinguished by the Fire Department. It was alleged that conduct by one of the fire commissioners caused a delay in the method of fighting the fire, which increased the damage caused to Unit 3. The fire commissioner was not a named defendant. After insurance claims were paid, actions were brought by and on behalf of Unit 3, against, among others, the Fire District. (more…)Read More