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NY Medical Malpractice – Surgical Error


FACTS & ALLEGATIONS On November 14, 2006, plaintiff, C.S., 15, underwent surgery that addressed his left hip and his left leg. The procedure included an osteotomy, which involved the shaving of bone, a release of a contracture of his left leg’s lateral hamstring and a release of a contracture of his left leg’s medial hamstring. The surgery was performed by orthopedist Dr. W.C.

On December 7, 2006, W.C reexamined C.S. C.S’s left leg had developed foot drop: weakness or paralysis of the muscles that control the front part of a foot. His left foot also developed hypersensitivity and weakness. W.C. opined that the symptoms were temporary. He prescribed physical therapy.

During the ensuing 12 months, C.S. underwent several follow-up examinations that were performed by a member of W.C.’s staff. C.S.’s symptoms did not subside. In 2008, C.S. presented to a hospital, where he underwent a test that revealed a localized loss of the conduction of his left leg’s peroneal nerve. The dysfunctional area was located near his left leg’s lateral hamstring. Follow-up surgery revealed a complete transection of that area of the nerve. C.S.’s father, P.S., claimed that W.C. caused the transection. P.S. also claimed that the damage was the cause of C.S.’s foot drop, which has been deemed permanent.

P.S., acting as C.S.’s guardian, sued W.C. and W.C.’s practice, S.B.O.A., P.C. P.S. alleged that W.C. failed to properly release the contracture of C.S.’s left leg’s lateral hamstring, that W.C. failed to diagnose the resultant damage, that the doctors’ failures constituted malpractice and that S.B.O.A. was vicariously liable for W.C.’s actions.

Plaintiff’s counsel presented an expert orthopedist who opined that W.C. did not properly release the contracture of C.S.’s left leg’s lateral hamstring. The expert contended that the procedure should not involve a transection of the patient’s peroneal nerve, and he opined that the transection constituted a departure from an accepted standard of medical care.

Plaintiff’s counsel’s expert orthopedist also opined that W.C. should have diagnosed the injury that he caused. The expert contended that C.S.’s symptoms should have prompted performance of an electromyography, and he claimed that the test would have revealed the peroneal nerve’s injury. He opined that prompt detection could have led to treatment that would have led to treatment that would have resolved any residual effects. He contended that W.C.’s post surgical care did not satisfy accepted medical standards.

The defense’s expert orthopedist opined that W.C. did not transect C.S.’s peroneal nerve. The expert contended that the nerve was stretched, and he opined that the injury did not establish that the surgery was improperly performed. The expert also contended that W.C. rendered proper post surgical care.

INJURIES/DAMAGES foot drop (drop foot; orthosis)
Plaintiff’s counsel claimed that C.S. sustained a transection of his left leg’s peroneal nerve. The injury caused foot drop. C.S. underwent surgery, but he claimed that the condition is permanent. He wears an orthotic that secures his left ankle and his lft foot, and he requires the use of a cane. Plaintiff’s counsel claimed that C.S.’s condition is a result of untreated damage of C.S.’s left leg’s peroneal nerve. Plaintiff’s counsel’s expert orthopedist opined that prompt treatment could have prevented permanent residual side effects. He estimated that the injury should have been addressed during the six moths that followed its occurrence.

Plaintiff’s counsel sought recovery of $300,000 for C.S.’s past pain and suffering. He also sought recovery of unspecified damages for C.S.’s future pain and suffering.

Defense counsel contended that C.S. achieved a good recovery that permits C.S.’s resumption of most of his everyday activities.

RESULT The jury found that W.C. departed from an accepted standard of medical care. It opined that C.S. did not receive proper post surgical care. The jury determined that C.S. damages totaled $1.3 million.
$300,000 past pain and suffering
$1,000,000 future pain and suffering

DEMAND $1,200,000


INSURER Academic Health Professionals Insurance Association

TRIAL DETAILS Trial length: 12 days
Trial deliberation: 6 hours
Jury composition: 2 male, 4 female
P EXPERT Shannon D. Safier, M.D., pediatric orthopedics, Philadelphia, PA
James B. Sarno, M.D., neurosurgery, Hempstead, NY
D EXPERT Benjamin D. Roye, M.D., pediatric orthopedics, New York, NY
POST-TRIAL Defense counsel has moved to set aside the verdict.

EDITOR’S NOTE This report is based on court documents, information that was provided by plaintiff’s counsel and information that was provided by defense counsel.