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Trial Results


July 2008

Queens jury exonerates two orthopedists in suit alleging their steroid injection caused 39 year old's devastating bacterial endocarditis.

Mr. Gerspach successfully defended two orthopedic surgeons and their group against a claim they administered a corticosteriod injection to the 39 year old plaintiff's knee without proper aseptic technique. The plaintiff experienced fever within 1 to 2 days of the injection and a critically high white blood count of 35,000 a week post-injection. The defense asserted that the endocarditis had another source, likely respiratory, which could not be proven. The defendants contended that the knee was not infected and that post-injection pain within the extremity was appropriately attributed to an inflammatory response to the injection itself. The Queens jury concluded that any failure to use appropriate sterile technique did not substantially cause or contribute to the plaintiff's injury. The jury also exonerated the defendants on the claim of failing to investigate the elevated white blood cell count, and found that defendant's prescription of oral dose steroids in the presence of the white blood cell count fell within accepted practice.

April 2008

Brooklyn Jury Finds That Internist Acted Appropriately in Withholding Steroids Which Could Have Prevented Loss of Eyesight.

Jury Deliberates Just 10 minutes Before Returning Verdict in Doctor's Favor

A 72 year old married male alleged that his internist was negligent in failing to diagnose and treat temporal arteritis, an inflammation of the lumen of the artery which supplies the optic nerve. Left untreated, permanent blindness will occur in a large percentage of cases. The diagnosis can be made only by biopsy. The only treatment is steroids, which must be given prior to the onset of blindness. Although the defendant internist suspected the condition because of certain characteristic signs, he did not prescribe steroids because other information, including ophthalmologic examination, was considered not confirmatory. Plaintiff argued that the defendant's suspicion of the diagnosis mandated that steroids be given immediately, and a biopsy be scheduled. Consultation was planned with a rheumatologist, but the patient became blind prior to that appointment. The plaintiff's expert, a surgeon and New Jersey State assemblyman, was discredited on cross-examination through use of his financial disclosure statements and Bills he had sponsored in the legislature regarding expert witness qualifications.

November 2007

Radiologist and facility found not liable for failure to diagnose carcinoid tumor and misdiagnosis of benign liver hemangioma.

Plaintiff, married with three children, alleged that defendants had negligently failed to consider a diagnosis of metastatic tumor and failed to order additional imaging studies to investigate carcinoid tumors which originated in the appendix. The jury concluded that the lesions had behaved on CT imaging like benign hemangioma and that the delay in diagnosis did not alter the prognosis. Defendants were also exonerated on claims they had negligently failed to compare CT studies performed in 1998 with studies done in 2001 and 2003.

August 2007

Successful defense of surgeon in wrongful death suit brought on behalf of mother of former New York State Supreme Court Justice.

Mr. Gerspach successfully defended a general surgeon in a wrongful death claim involving the mother of a former New York Supreme Court Justice who presided over the medical malpractice trial assignment part in Kings County. The decedent expired after undergoing an exploratory laparotomy, right hemicolectomy, cholecystectomy and hernia repairs. Plaintiff alleged that the surgery should not have been attempted given the decedent's malnourished state and that informed consent was not obtained prior to the procedure. The defendant surgeon asserted that informed consent was obtained from the decedent's son, the former Supreme Court Justice, who at trial denied this. The jury returned a verdict in favor of the defendant surgeon.

March 2007

Jury finds in favor of orthopedic surgeon who had allegedly failed to diagnose infection post IDET (intradiscal electrothermal therapy) with collapse of disc space and osteomyelitis of adjacent vertebrae. Defense overcomes testimony of plaintiff's treating infectious disease expert.

Following an IDET procedure performed for a degenerative disc, the middle-aged male plaintiff complained of pain that did not respond to narcotics and physical therapy. After several months of unremitting pain, plaintiff obtained a second opinion. X-ray and MRI by the subsequent orthopedic surgeon revealed a complete collapse of the disc space. The patient was referred to an infectious disease expert who diagnosed discitis (infection of the surgical disc) and osteomyelitis of the adjacent vertebrae. The jury did not accept the testimony of the plaintiff's treating infectious disease expert and found that the plaintiff did not have an infection of the disc space during post-operative visits. (There was a hung jury on a final interrogatory.) The partial verdict was upheld on post-trial motions.

May 2006

Pediatrician's alleged failure to diagnose "failure to thrive" and congenital heart defect in infant resulting in brain injury, mental retardation.

In the Supreme Court, New York County, Mr. Gerspach successfully defended a pediatrician in a suit brought by the parent of a developmentally delayed and mentally retarded infant. The pediatrician had treated the infant during the first 3 years of life, during which time he exhibited "failure to thrive" allegedly due to a congenital heart defect (partial anomalous pulmonary venous return - PAPVR), which the defendant pediatrician did not diagnose. The diagnosis of PAPVR was made by another pediatrician shortly after the infant left the defendant's care. The plaintiffs asked the jury for "millions," but the jury of three men and three women found in favor of the defendant pediatrician on the standard of care issue in just over 2 hours.

February 2006

Permanent fecal incontinence following an allegedly improper anal vaginal fistula repair in Bronx County Supreme Court. Plaintiff's expert was subsequent treating surgeon.

In the Supreme Court, Bronx County, Mr. Gerspach successfully defended an obstetrician/gynecologist in a suit arising from an unsuccessful ano-vaginal fistula repair in a 31 year old woman now suffering from permanent fecal incontinence. A subsequent repair was necessary and the surgeon who performed this repair testified at trial on behalf of the plaintiff supporting her theory that the defendant Ob/Gyn had employed an improper technique. Mr. Gerspach employed a strategy which defended the propriety of the repair and placed the blame for the excessive scarring and loss of sphincter function on the subsequent surgery. The Bronx jury returned a verdict in favor of the defendant in just 25 minutes.

September 2005

Suit brought by young medical malpractice defense attorney against ophthalmologist for failure to recognize signs of impending stroke and misdiagnosis of retinal migraine. Plaintiff's subsequent treating physicians were plaintiff's experts on liability and damages.

Mr. Gerspach successfully defended an ophthalmologist at trial in an action brought by a medical malpractice defense attorney. The 27-year old plaintiff had complained to the ophthalmologist of several episodes of monocular (one eye) loss of vision over the course of a month. The defendant ophthalmologist rendered a working diagnosis of possible retinal migraine. Several months later, the attorney suffered two strokes, resulting in loss of use of her entire right side. Plaintiff contended that the diagnosis of migraine was negligent, and that referral to an internist or neurologist for complete work-up was mandatory and would have prevented the strokes. Plaintiff produced her treating physicians to testify on her behalf and against Mr. Gerspach's client. Plaintiff also asked the jury to return a verdict in the sum of $10 million. Instead, the jury found in favor of the defendant ophthalmologist.

January 2005

Jury finds that pediatrician's failure to examine newborn prior to discharging him from hospital was not the proximate cause of anoxic brain injury which occurred 24 hours later.

Mr. Gerspach successfully defended a pediatric group against charges that they had negligently discharged a newborn infant without examining him. Twenty-four hours after discharge the infant was re-admitted to the hospital with respiratory distress and multi-organ failure. Plaintiffs' experts contended that the infant's brain was oxygen-deprived, resulting in brain damage and permanent neurological injury. Plaintiffs asked the jury to award a total of $8.3 million in damages. However, the jury returned a verdict in favor of the defendant pediatricians.

May 2004

Erb's palsy (brachial plexus injury): successful defense of delivering obstetrician.

Mr. Gerspach successfully defended an obstetrician at trial in an action in which the infant-plaintiff sustained an Erb's palsy (brachial plexus injury). Plaintiffs' expert obstetrician testified that the defendant had failed to recognize a compound presentation at delivery (where the hand presented alongside the head), and that the delivering obstetrician had applied excessive traction to the baby's head. Although the delivery room nurse present during delivery noted a compound presentation in the medical record, Mr. Gerspach was able to persuade the jury, through his client's testimony and that of an obstetrical expert witness, that a true compound presentation was not present, and that the defendant obstetrician had acted appropriately and had not utilized excessive traction to effect delivery. [See April 1998 for a similar result in another case involving Erb's palsy.]

March 2004

Alleged negligent repair of episiotomy and fourth degree laceration resulting in permanent fecal incontinence.

Mr. Gerspach successfully represented a hospital and two obstetricians at trial where the plaintiff contended that one of the obstetricians, a resident, was negligent in his repair of an episiotomy and 4th degree laceration, causing permanent fecal incontinence. Plaintiff alleged that the hospital and attending obstetrician were negligent in permitting the resident to perform the repair of a fourth degree laceration without supervision. Mr. Gerspach and his clients persuaded the jury that the plaintiff had sustained a recognized complication of an appropriately performed episiotomy and repair. During cross-examination, plaintiff's expert obstetrician conceded that even properly performed repairs sometimes require additional surgery, leading to complications similar to those which plaintiff experienced.

June 2003

Court precludes plaintiff's expert's opinion testimony regarding the cause of a newborn's catastrophic brain injury, and action is dismissed.

Mr. Gerspach succeeded in obtaining a ruling which precluded plaintiffs' expert pediatric neurologist from testifying at trial on a theory of causation. At the conclusion of a Frye hearing, during which Mr. Gerspach cross-examined plaintiffs' expert neurologist, the Court held that the plaintiffs' expert's opinion was not sufficiently supported by the medical literature and was without general acceptance in the medical community. The infant-plaintiff had sustained a catastrophic brain injury which was diagnosed shortly after birth. Plaintiffs claimed that the defendant doctors were negligent in delaying the performance of a caesarean section, and that the injury occurred as a result of a prolonged, 5 ½ hour second stage of labor.

March 2003

Orthopedic surgeon who performed total knee replacement found not liable for failure to diagnose post-operative infection, allegedly resulting in paraplegia.

Mr. Gerspach successfully defended an orthopedic surgeon at trial where the plaintiff contended he was left permanently paralyzed as a result of the orthopedist's failure to properly perform a total knee replacement and failure to diagnose and treat a post-operative infection. Plaintiff's experts contended that bacteria from the knee wound entered the plaintiff's bloodstream, causing a spinal abscess. Plaintiff claimed that the abscess caused paraparesis of his lower extremities, and asked the jury to award him $10 million. Instead, the jury returned a verdict in favor of the defendant orthopedic surgeon after finding that he did not depart from the standard of care.

October 2002

Allegedly negligent venipuncture by medical technician resulting in reflex sympathetic dystrophy (RSD). Plaintiff's subsequent treating internist acted as plaintiff's expert on liability and damages.

Mr. Gerspach successfully defended an internist and his medical assistant at trial against allegations levied by a patient who claimed that she suffered from reflex sympathetic dystrophy as a result of a venipuncture performed by the medical assistant. Plaintiff claims were supported at trial by the plaintiff's treating internist. Mr. Gerspach's strategy was to prove that the plaintiff did not have any objective evidence of reflex sympathetic dystrophy despite her complaints of constant burning pain in her left arm. The plaintiff asked the jury for $1.9 million. The jury returned a defense verdict in 1 hour and 15 minutes.

July 2002

Alleged failure to provide preoperative medical clearance leading to stroke with resulting hemiparesis.

Mr. Gerspach successfully defended an internist from allegations brought by a 67 year old retired publicity agent, who suffered a stroke resulting in mild left sided hemiparesis. It was alleged that the internist failed to appropriately follow-up after a doppler exam revealed 75% stenosis of the right internal carotid artery. Two years after this study, the plaintiff underwent a laminectomy without undergoing a second doppler exam to ascertain the status of the stenosis. Shortly after the surgery, the plaintiff suffered the stroke. A doppler exam performed after the stroke revealed a complete occlusion of the right internal carotid artery. It was alleged that had Mr. Gerspach's client properly cleared the plaintiff for surgery and performed a repeat doppler exam prior to the surgery, a carotid endarterectomy would have been performed and the stroke would not have happened. By showing that there was no indication for a repeat doppler since the plaintiff was not experiencing symptoms, Mr. Gerspach was able to secure a defense verdict despite plaintiff asking the jury to award her $1.5 million.

January 2002

Ob/Gyn exonerated by jury for injury to ureter resulting in permanent loss of kidney function.

Mr. Gerspach successfully defended an obstetrician/gynecologist in a case involving a failed V-BAC and ruptured uterus following induction of labor with Pitocin. During the repair, the plaintiff's left uterine artery was injured, requiring the placement of multiple hemoclips. The plaintiff subsequently developed left hydronephrosis and an obstruction of the left ureter at the level of the hemoclips. This necessitated re-implantation of the left ureter with permanent loss of kidney function. The plaintiff alleged that Pitocin should not have been given to her since she had previously given birth via cesarean section. She also alleged that the Ob/Gyn was negligent in injuring her uterine artery and in placing the hemoclips in a manner that obstructed her ureter. The demand prior to trial was $1.5 million; however, the jury returned a verdict in favor of Mr. Gerspach's client.

November 2001

Successful defense of bariatric surgeon involving vertical banded gastroplasty.

Mr. Gerspach successfully defended a bariatric surgeon who performed a vertical banded gastroplasty on a 28 year old woman against allegations that the surgeon did not obtain informed consent prior to the surgery. After the procedure, the plaintiff developed a small bowel obstruction, necessitating a resection and an end-to-end anastomosis; staple line leak repair; and neostomal stricture. Mr. Gerspach obtained a directed verdict at trial after obtaining a preclusion Order from the judge prohibiting plaintiff's bariatric surgery expert from testifying.

March 2001

Jury finds pediatrician not liable for failure to diagnose congenital hip dislocation.

The parents of an infant born with congenital right hip dislocation commenced suit against the infant's pediatrician alleging that his failure to timely diagnose the condition necessitated more extensive treatment and surgery. Through testimony from the defendant pediatrician and an expert pediatric orthopedic surgeon that established the complete and proper nature of the hip examinations performed by pediatrician, Mr. Gerspach was able to obtain a defense verdict.

April 2000

Alleged wrongful death of 39 year old from pulmonary embolism while awaiting open reduction and internal fixation of hip fracture/dislocation; inadequate prophylaxis.

Mr. Gerspach successfully defended an orthopedic surgeon in an action brought on behalf of the estate of a 39 year old man who developed a deep vein thrombosis and died from a pulmonary embolism while awaiting transfer for an open reduction and internal fixation of his fractured right acetabulum and femur. It was alleged that the defendant failed to maintain the decedent on prophylactic blood thinning medications. Mr. Gerspach employed a defense which argued that the use of sequential compression stockings alone constituted appropriate prophylaxis, that low doses of blood thinning medications have not been proven to be effective for the type of orthopedic injuries like the decedent had, and that the thrombus which caused the pulmonary embolus was so large it must have formed before prophylaxis was discontinued. The jury returned a defense verdict in 30 minutes.

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