Trial Results

2009-2022

April 2022

Manhattan Jury Clears Gastroenterologist In 37 year-old Father’s Alleged Wrongful Death

When plaintiff’s decedent, 37, developed difficulty swallowing and the sensation that something was stuck in his chest or throat, his primary care physician referred him to our client, the defendant gastroenterologist. Our client saw him the next day and performed an upper endoscopy the day after that. Based upon findings of a hiatal hernia and linear erosions in the upper third of the esophagus, and pathology findings which included mild inflammation in the distal third of the esophagus, defendant diagnosed GERD (gastroesophageal reflux disease). She placed the patient on Omeprazole, a proton pump inhibitor (PPI) which was intended to reduce the production of gastric acid. During a telephone call two weeks later, the patient informed her that his difficulty swallowing had resolved, while certain “trigger foods” he was attempting to avoid were still an issue for him. During that time, the patient developed a worsening and persistent cough and, soon thereafter, dyspnea on exertion. Our client referred him back to his PMD. Three and a half weeks after the endoscopy, he was diagnosed with a mediastinal mass on chest x-ray and CT scan of the chest. Within several days of being admitted to the hospital, he was diagnosed with primary mediastinal B-Cell lymphoma, for which he was started on chemotherapy. The mass, measuring 10 cm by 8 cm at diagnosis, responded to the initial round of chemotherapy very quickly, but he passed away six weeks into the admission. The cause of death was identified as cardiorespiratory complications associated with his cancer.

Plaintiff contended that our client negligently relied upon a diagnosis of GERD and failed to do a complete work-up which should have included imaging of the chest. Plaintiff’s expert gastroenterologist testified that a mediastinal mass should have been within the differential diagnosis, given the complaint and endoscopy findings. Plaintiff’s expert oncologist testified that this particular, fast-growing cancer has a 95% cure rate and responds very quickly to chemotherapy. If treatment had begun just a week sooner, he testified, he would have survived and the cancer been cured. Plaintiff’s experts testified that the dysphagia and linear erosions were caused by compression of the mass on the esophagus. Our client was able to visualize the entire esophagus without difficulty, saw no evidence of compression and conceded that, had there been signs of compression, or if the patient’s GERD had not responded to the treatment, she would have pursued other workup. We called two excellent experts in lymphoma and gastroenterology, and the defendant was herself an excellent witness.

The jury agreed that our client met the standard of care for a consulting gastroenterologist. It took them just 80 minutes to return a unanimous verdict in her favor. The decedent left behind a widow and two children, ages 2 and 5. He was a hedge fund analyst who earned over one million dollars in the year preceding his death.

This was Mr. Gerspach's 56th victory in his last 60 verdicts taken.

October 2019

Brooklyn Jury Finds in Favor of Bariatric Surgeons In Staple Line Leak Case

A 52 year-old female underwent a laparoscopic vertical sleeve gastrectomy (LVSG) and paraesophageal (Type 3) hiatal hernia repair by the two defendant bariatric surgeons in June 2013. The indications for the surgery (morbid obesity with BMI of 37, along with DM and hypertension) and informed consent were not challenged.

Two days after being discharged, the patient was readmitted with severe tachycardia, shortness of breath, abdominal and chest pain, and fever. CT scan and UGI were consistent with a leak in the proximal staple line in the chest cavity. The sleeve had slid or migrated back into the chest. Plaintiff contended that the defendants had not repaired the hiatal hernia correctly and failed to remove all of the attachments between the peritoneum and chest, causing the hiatal hernia to recur. Plaintiff contended that the measures taken by defendants to treat the presumed leak (defendants were not able to locate it during the reoperation), including over sewing of the staple line, placement of an omental patch, and placement of esophageal stent, were unnecessary measures and combined to cause or make the leak worse. Plaintiff further contended that defendants failed to properly reduce the migrated sleeve into the abdominal cavity, causing an incarceration of the sleeve and staple line, making it more difficult to heal. The plaintiff had a difficult four month postoperative course which included persistent leak, stent placement, migration and replacement, placement of ovesco clips, TPN, intravenous antibiotics, placement of JP drains, pigtail catheter, and thoracentesis in an effort to get the leak to heal and treat plaintiff's mediastinitis and sepsis. The leak did eventually heal and plaintiff was able to return to her usual activities 6-7 months after the sleeve gastrectomy.

A jury of 4 women and 2 males returned a verdict in favor of both bariatric surgeons after deliberating for an hour. The jury found that no departures were committed during either the LVSG or reoperation.

October 2019

Jury Clears Neurosurgeons in Cerebellar Stroke Case

A 45 year-old school nurse presented to the ER with complaints of severe headache, syncope and photophobia. CT scan showed a hyperdensity which was suspicious for hemorrhage. MRI did not show an active bleed, and a CT angiogram performed on day 4 of the admission revealed two dissecting pseudoaneurysms in the distal posterior inferior cerebellar artery (PICA). Plaintiff's expert contended that the defendant neurosurgeons were negligent in failing to perform a lumbar puncture, failing to rule out a subarachnoid hemorrhage, and discharging the patient for outpatient follow-up which was to include a cerebral angiogram in a week. Plaintiff contended that the headache was the "worst of her life", which defendants disputed. Two days after being discharged from the hospital, the plaintiff presented at a different hospital where a lumbar puncture revealed xanthochromia, and CT revealed a stable collection of blood which was unchanged from the CT six days earlier. A non-party neuroradiology interventionist performed a glue embolization on day two of the admission, noting that the defendants had "missed SAH" and the dissecting aneurysms were "ruptured." The plaintiff suffered a cerebellar infarct following the glue embolization. Defendants contended that the stroke was the expected consequence of a glue embolization procedure. Plaintiff's expert contended that the stroke was made worse by vasospasm, which was a consequence of the alleged delay in treatment. The defense was supported by the testimony of a board certified neurovascular surgeon and board certified neuroradiologist. The evidence on the defense case included an animation of the glue embolization procedure. The jury returned a unanimous verdict in favor of the defendants after deliberating for two hours.

July 2018

Westchester County Jury Exonerates Emergency Medicine Doctor in Wrongful Death Action

A 64 year-old male presented to the emergency department concerned that he had vomited blood after eating that day. The patient had a history of liver cirrhosis and gastric varices bleed, for which he had undergone a glue injection procedure by the co-defendant gastroenterologist two months earlier. The patient had been instructed to proceed to the ER if he ever vomited blood or passed blood from the rectum. On the day in question, the patient was unsure if he had seen blood in his vomit, but he believed he had tasted blood. His vital signs were normal, hemoglobin and hematocrit were abnormally low but improved as compared to values obtained during an admission seven weeks earlier at the same hospital, and physical examination was in all other respects normal. The defendant emergency medicine physician contacted the patient's gastroenterologist, and both felt that the patient could be discharged with a follow-up planned with the gastroenterologist for two days later.

The patient suffered a massive, fatal bleed 36 hours after being discharged from the ED. He lost half his blood volume and was discovered by his wife in a pool of blood, having bled from the rectum. The patient was transported in critical condition to the hospital, where he expired three hours later. The patient was survived by his wife and 25 year-old son, who sought recovery for his pain and suffering, and pecuniary losses including lost income and loss of parental guidance. The jury returned a unanimous verdict in favor of both defendants, finding that the decision not to admit the patient was not a departure from accepted medical practice under the circumstances.

October 2017

Richmond County Defense Verdict Obtained on Behalf of Emergency Medicine Specialist

A Richmond County jury returned a verdict in favor of an emergency medicine specialist accused of negligently failing to diagnose a femoral neck fracture. The defendant physician was represented by Alex Sikoscow.

Plaintiff's experts alleged that the patient, a 56 year old woman, who had fallen on her right hip and leg, required a CT, MRI or orthopedic consult to rule-out a non-displaced femoral neck fracture prior to discharge from the ED. It was asserted by plaintiff's experts that the patient's hip pain, and a suspicious density on the hip x-rays warranted this investigation. The experts argued that because the fracture was not diagnosed in the ED, the patient bore weight on the injured leg, and the fracture displaced 13 days after discharge from ED. They argued that the subsequent displacement caused the plaintiff to fall thereby causing a displaced fracture of the radius. The patient required a total hip replacement, and surgical repair of her radius fracture.

The defense countered that the patient's presentation was not concerning for a fracture, and that the x-rays taken were normal. It was argued that the patient's displaced fracture was sustained in connection with an unrelated fall 13 days after discharge from the ED.

July 2016

Richmond County Jury Exonerates Neurosurgeon In Suit By Paraplegic

The 56 year-old plaintiff alleged that the defendant neurosurgeon was negligent in planning for and performing minimally invasive surgery upon an osteophyte that was compressing the spinal cord at T7-T8. Plaintiff's motor strength prior to surgery was determined to be 3/5 in the right leg (unable to lift against gravity) and 4/5 in the left leg. Plaintiff awoke from surgery with complete loss of function and sensation of the lower extremities, and loss of bowel and bladder control.

Plaintiff's expert neurosurgeon contended that surgery was performed via an incorrect approach (posterolateral instead of anterior); that surgery was performed at the wrong level (T6-T7, one level above the osteophyte), and failed to accomplish its intended goal of removing the osteophyte. Plaintiff further contended that the defendant neurosurgeon traumatized the cord and that trauma to the cord, combined with a failure to maintain appropriate mean arterial blood pressure, caused his paralysis. Complicating the case for the defense was the defendant neurosurgeon's operative report, which indicated that the pre-operative plan of resecting the T7 rib to gain access to the T7-T8 level was accomplished. Imaging studies confirmed that no portion of the rib was removed. Defendant's operative report also did not document the removal of the T6 lamina, which was actually accomplished and which defendant and defendant's experts asserted was necessary to access the T7-T8 level. The defense was further complicated by the Chief of Radiology's official interpretation of the post-operative MRI, which he said failed to show decompression of the cord or removal of the osteophyte.

Plaintiff's expert neurosurgeon also contended that the defendant was required to discuss the maintenance of mean arterial pressure with anesthesia prior to surgery, particularly in surgery of this nature performed at the "watershed" area of the thoracic spine.

The defense countered that such a discussion was not required. In fact, in prior testimony in another matter plaintiff's expert had conceded that such a conversation was not required where the anesthesiologist and surgeon had worked together before. The defense also asserted that surgery was performed at the correct level, via the safest approach, and that a substantial portion of the osteophyte was removed, as confirmed by the imaging studies.

The defendant and defendant's experts blamed the paralysis and spinal cord injury on the degree of preoperative insult caused by the osteophyte, combined with the sudden re-expansion of the cord during surgery; vibration from the drill used on the osteophyte was given as an alternative explanation. The jury returned a verdict in favor of the defendant neurosurgeon after deliberating for two hours.

June 2016

Westchester jury clears urologist of failure to diagnose kidney cancer and wrongful death.

The 62 year-old plaintiff and her husband brought suit against her urologist who had begun treating her in 1995 for a neurogenic bladder, a condition related to her multiple sclerosis. During that time, the urologist taught his patient how to self-catheterize to enable her to void. The patient was also treated for recurrent urinary tract infections, which were attributed to her neurogenic bladder and daily self-catheterization. Plaintiff was diagnosed with renal cell carcinoma by another urologist in January 2010, within 2 weeks after leaving the defendant's care. The patient had sought treatment from a different urologist after she developed gross hematuria and flank pain. Plaintiff underwent a left nephrectomy, developed metastatic lung cancer and passed away in May 2012.

Plaintiffs alleged that the defendant urologist was negligent in failing to obtain any imaging study of the kidneys during the time he cared for her. Plaintiffs' expert contended that the standard of care required that a baseline imaging study and subsequent imaging studies be obtained in view of the patient's recurrent urinary tract infections and occasional microscopic hematuria. Defendant conceded that an imaging study performed within 2-3 years of the diagnosis would have revealed the tumor (which was 8 x 9 x 10 cm at diagnosis in January 2010), but contended that imaging studies were not required by the standard of care under this particular patient's circumstances. Defendant pointed to the patient's large, compliant bladder, absence of high voiding pressures, successful self-catheterization and absence of upper urinary tract infections in defense of his "failure" to obtain imaging of the kidneys. Plaintiffs also contended that the defendant failed to perform adequate physical examinations and that the tumor would have been palpable on an appropriate examination. The jury of 4 females and 2 males returned a unanimous verdict in favor of the defendant.

May 2016

Staten Island jury finds orthopedist not liable in connection with infected knee prothessis.

A 62 year-old married male, retired firefighter (9/11 first responder) underwent a unicompartmental left knee replacement by the defendant orthopedic surgeon on January 17, 2011. He was discharged on post-operative day number 3, but was readmitted the next day with an abscess and clot in his right arm at the site of his prior IV. The infection in the right arm was diagnosed and treated with intravenous and then oral antibiotics. Orthopedics was consulted out of concern for possible seeding of the arm infection to the knee prosthesis. The hospital's radiologist interpreted a knee x-ray as demonstrating a large effusion, for which the radiologist recommended an aspiration and culture of the aspirated fluid. The attending hospitalist, and other providers, diagnosed cellulitis in the knee wound. The defendant orthopedist determined that the knee appeared normal for its post-op stage, and an aspiration was not performed. Six weeks later, plaintiff was readmitted and diagnosed (on aspiration) with a knee infection. The organism cultured from the knee was of the same type that was cultured from the right arm (Oxacillin Sensitive Staph Aureus, resistant to clindamycin). The defendant orthopedist had performed an aspiration and wash out of the knee in February when plaintiff developed a hematoma secondary to anticoagulants he was on for thrombosis in the arm. Cultures during that admission were negative, but defendants conceded that it was possible the antibiotics the plaintiff was taking for the arm suppressed their growth.

Plaintiff's experts in orthopedics and infectious disease contended that an aspiration was warranted as recommended by the radiologist on January 21, and that appropriate treatment with intravenous antibiotics and a wash out at that time would have prevented the need for a total knee replacement, which was eventually performed by another surgeon at another institution. Plaintiffs contended that the defendant negligently failed to diagnose an infection, and negligently failed to prescribe intravenous antibiotics at the time of plaintiff's readmission in February. Defendant called an expert in total joint replacement, and Chief at Mt. Sinai. The jury took less than 90 minutes to return a verdict in favor of the defendant on all four departure questions.

September 2015

Richmond County jury clears surgeon in laceration of hepatic artery during laparoscopic cholecystectomy.

The 61-year-old plaintiff alleged that his surgeon was negligent in proceeding with a laparoscopic cholecystectomy when inflammation prevented adequate visualization of the anatomy. An artery, believed by the surgeon to be an aberrant branch of the right hepatic artery, was lacerated, causing an estimated blood loss of 2000 cc requiring transfusion with three units of packed red blood cells. The bleed, and inability to clip the vessel laparoscopically in a safe manner, necessitated the conversion of the surgery to an open procedure, resulting in a scar the entire length of the patient's abdomen. Concerned that the common bile duct (CBD) may have been injured during suture ligation of the bleeding vessel (an intraoperative cholangiogram demonstrated a stricture of the CBD), the patient was referred to a gastroenterologist for placement of stents to prevent further stricture. The stents remained in place for 4 months and the plaintiff did not have any compromise of his liver function. Plaintiff also alleged that the defendant was negligent in performing the surgery with a resident, who was doing the dissection under his direct supervision when the laceration occurred. Plaintiff also contended that the defendant did not inform him of the likelihood the laparoscopic procedure would have to be converted to an open procedure, and did not apprise him of any risks of surgery. The testimony of the defendant surgeon and an expert in hepatobiliary surgery established that the procedure was performed within the standard of care; that the bleed was unavoidable, and managed appropriately; that appropriate information was given to the patient so that he could make an informed decision as to whether to undergo the surgery; and that it was appropriate for the surgery to be done by the defendant with the assistance of the 4^th year resident. The jury took just 1 hour to find in favor of the defendant on all issues.

March 2015

Westchester jury finds that pulmonologist's treatment of asthma with high dose corticosteroids met standard of care where plaintiff developed avascular necrosis of her joints.

A 35-year-old woman was diagnosed with severe asthma by defendant pulmonologist who admitted her to a hospital in 2008 for treatment that included over 2,000 mg of IV Solu-Medrol. Defendant also treated plaintiff as an outpatient on several occasions with tapered doses of oral Prednisone. During the subject admission, the plaintiff developed steroid myopathy characterized by pain that required the narcotics Dilaudid and Morphine. Eighteen months later the plaintiff was diagnosed with avascular necrosis of the hips, femurs and knees. Plaintiff's experts in pulmonology, allergy and pain medicine contended that she did not suffer from severe asthma; that the doses of corticosteroids administered exceeded accepted standards; that defendant did not provide appropriate information regarding risks to plaintiff; and that the medications caused her AVN. Defendant contended that plaintiff's history, complaints and physical examination findings supported the diagnosis of asthma; that the treatment was indicated; and that AVN did not need to be disclosed as a risk of therapy. After deliberating for just under an hour, the jury found that the defendant's management and treatment of plaintiff's respiratory condition met the standard of care, and that he had provided appropriate information before obtaining her consent.

May 2014

Jury clears two Emergency Medicine doctors in death of 41-year-old mother resulting from aortic dissection.

Decedent entered the ED complaining of sudden onset chest tightness and painful, throbbing throat, along with mild redness involving the face and upper chest. But for the redness, physical exam, including an EKG, was normal, though a cardiac exam was not specifically recorded. The patient was diagnosed with a possible allergic reaction, treated with antihistamines, Prednisone and nebulizer, kept for observation for 4 hours, and then released with instructions that she see her PMD the next day. Written discharge information included instructions regarding "your non-specific chest pain". Plaintiff (decedent's husband) alleged that defendants failed to investigate a cardiovascular cause for his wife's complaints; a chest ray and/or CT scan should have been done; and the diagnosis of allergic reaction was wrong. Defendants defended the diagnosis and treatment, to which the patient had responded; denied that decedent had complained of actual chest pain, as opposed to tightness, and argued that the presentation was not suggestive of a dissection. The patient saw her PMD the following day; his notes documented that the patient had experienced sudden squeezing sensation in the chest, with "pain radiating to her throat". Decedent died 5 days after her ED visit, with autopsy revealing the cause of death to be a dissection involving the ascending thoracic aorta. Plaintiff sought over 9 Million dollars in damages for both economic and non-economic loss. The jury returned its unanimous verdict after deliberating for 4 hours.

January 2014

Jury clears neurosurgeon of malpractice in connection with postoperative complications following Chiari I malformation surgery.

A 24-year-old Staten Island woman underwent surgical repair of a Chiari I malformation by the defendant neurosurgeon. NIne days after the original surgery, defendant performed a second procedure, a duraplasty repair to correct a cerebral spinal fluid (CSF) leak and pseudomeningocele. Six weeks later, the plaintiff left the defendant's care and underwent placement of a ventriculo-peritoneal shunt (brain to abdomen) and additional repair and decompression surgery by a different neurosurgeon for recurrent CSF leak and a large pseudomeningocele which extended from the base of the skull to the 5th cervical vertebra.

Plaintiff contended that the defendant was negligent in failing to recognize increased intracranial pressure following the initial surgery and in failing to place a lumbar drain which would have allowed the repair to be successful. Plainitff further claimed that the defendant failed to perform additional necessary surgery when it was evident the repair had failed and CSF continued to leak. Plaintiff claimed to suffer from chronic neck pain, weakness and limited range of motion as a result of the multiple surgeries and pseudomeningocele. Plaintiff claimed permanent inability to work, and sought damages in excess of $3 million for pain and suffering, and $1.5 million for lost earnings. A treating pain management physician and treating physical therapist were called as witnesses on plaintiff's behalf. The plaintiff wore a hard neck collar throughout the trial, and claimed to wear it always secondary to pain and weakness.

Our jury accepted the defense position that placement of a drain was not necessary in the absence of evidence of increased intracranial pressusre, and that defendant neurosurgeon did not depart from accepted standards of medical practice in not performing a shunt and revision surgery during the four weeks which followed the repair. Defendant also asserted that plaintiff's subsequent neurosurgeon was over-aggressive in his surgical approach.

October 2013

Staten Island jury clears neurologist in cardiac arrest and foot drop of 24 year old.

The defendant neurologist prescribed the beta blocker, Inderal, 160 mg Long Acting, for the 24-year-old plaintiff's benign essential hand tremor. When plaintiff complained of chest pain and not feeling well while on the Inderal, defendant instructed him to come off the medication by taking it every other day for a week before stopping it. Plaintiff sustained a cardiac arrest the second day after having last taken the drug. He suffered a permanent foot drop while in a medically induced coma during the ensuing hospital admission. Plaintiff's experts in neurology and cardiology faulted defendant for prescribing the medication in an excessive dosage and discontinuing it without a gradual taper over a period of several weeks. They claimed that the abrupt stoppage of the Inderal caused plaintiff to develop a near fatal arrhythmia and ventricular fibrillation. Defense experts countered that there was no relationship between the medication and the arrest. Testing proved that plaintiff had no coronary artery disease. The Following a four week trial, the jury returned a unanimous verdict in favor of our client after deliberating for just an hour.

June 2013

Staten Island jury clears resident podiatrist of causing complex regional pain syndrome.

The 35 year-old male plaintiff injured his right foot while running down steps and falling in May 2010. Initially diagnosed with a third metatarsal base fracture, he was placed in a splint and Cam walker boot. Fracture was eventually ruled out, and during a follow-up visit a Jones Compression Bandage was applied by a resident and another podiatrist who had just completed his residency. The plaintiff alleged that the bandage was applied too tightly and that it was placed by the resident alone, without supervision. Plaintiff's claim that the bandage caused a compressive injury to the right tibial nerve and disabling CRPS was supported by the testimony of his treating podiatrist, treating pain medicine physician and an examining neurologist. Plaintiff's version of events and the testimony of his treating doctors were discredited on cross-examination, and the jury returned a unanimous verdict soon after beginning deliberations.

February 2013

Brooklyn Jury Clears Surgeon in Iatrogenic Femoral Nerve Injury.

In 2009, the 42 year old male plaintiff underwent surgical resection of a retroperitoneal mass that was later determined to be a schwannoma, a benign nerve sheath tumor. During the procedure the surgeon cut several small nerves that entered the tumor. At the time she did not know whether the tumor was malignant or benign, and did not want to violate the tumor capsule. When she observed the patient's right leg twitch during dissection of the mass, she suspected the tumor could be a schwannoma involving the femoral nerve. She proceeded to cut the nerves and remove the mass en bloc. The plaintiff was rendered permanently unable to extend and lock his right leg at the knee after surgery, and requires the use of a knee brace to ambulate. It was undisputed that plaintiff suffered an injury to the femoral nerve during surgery. Plaintiff contended the defendant was negligent in failing to biopsy the mass and failing to consult a neurosurgeon prior to resection. Plaintiff also claimed that the defendant had completely transected the main femoral nerve, allegations the defendant denied. The jury found that the surgeon acted appropriately and met the standard of care.

October 2012

Staten Island jury returns unanimous verdict in favor of Obgyn in "clipped ureter" case.

In December 2006, the 50 year old plaintiff underwent a supra cervical, laparoscopic hysterectomy and mini laparotomy for an enlarged fibroid uterus. Plaintiff's expert witnesses in gynecology, urology and radiology testified that one of several hemo-clips used to control excessive bleeding during the procedure, was placed upon the right ureter, causing the right kidney to become non-functioning. The defendant was also criticized for failing to record in the operative report that the ureters were visualized during the procedure, and examined again prior to closure. However, the witness the jury found most compelling was defendant's expert in radiology, who testified that postoperative imaging studies revealed a clip immediately adjacent and anterior to the ureter, but not upon it. Defendant's expert radiologist testified that scar tissue had formed after the procedure, causing a complete obstruction of the ureter. Defendant conceded that clipping of the ureter and failing to recognize it prior to closure, would constitute a departure from accepted practice. The clear turning point in the case was defendant's expert's use of the PACS system to demonstrate the location of the hemoclip relative to the ureter.

June 2012

New York Federal jury clears pediatrician in case of failure to diagnose infant with bacterial meningitis.

The patient, a 45 day old infant, was seen in the Good Samaritan Hospital Emergency Room with fever. CBC and blood culture were done. The Emergency room physician spoke by telephone with the pediatrician. It was disputed whether the pediatrician was advised of the baby's elevated band count of 32, which indicated bacterial infection. The jury found that the pediatrician was not told the band count and therefore was justified in agreeing to the infant's discharge with close follow-up. The child was diagnosed 3 days later and claimed a language deficit as a result of the delay in diagnosis.

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.

April 2012

Staten Island jury clears orthopedic surgeon in death of 49 year-old hip replacement patient.

The patient, a husband and father of two, had been on replacement steroid (Prednisone) therapy since having his pituitary gland removed at age 20. The Prednisone had caused avascular necrosis within the right hip joint, and collapse of the femoral head. In clearing the patient for surgery, his endocrinologist recommended that he receive pre and post-operative intravenous stress dose steroids in addition to his usual maintenance doses. This was intended to help him deal with the added stress and trauma of surgery and to maintain hemodynamic stability. He did not receive them, and after the surgery manifested signs and symptoms (including elevated liver enzymes and ammonia levels, confusion, agitation and eventually aspiration) which plaintiff attributed to the orthopedic surgeon's failure to ensure that his patient received his medication. The patient arrested on post-op day four, after becoming hemodynamically unstable, suffered anoxic brain injury and died six weeks later. The jury found that the orthopedist was not responsible for ensuring that his patient receive stress or increased doses of steroids in the perioperative period and in the days following the surgery.

January 2012

Jury clears hospitalist of causing death of 60 year old from acute pancreatitis.

A 60 year old male was admitted to the hospital through the ED after collapsing at home and briefly losing consciousness. Other symptoms included crampy abdominal pain, nausea, vomiting and diarrhea. He was diagnosed with viral gastroenteritis; myocardial infarction was ruled out and he was discharged 2 days later. Pancreatitis was not considered, and serum amylase and lipase tests were not done. The patient collapsed again and died 4 days later. Autopsy revealed chronic and acute hemorrhagic, necrotizing pancreatitis. Plaintiffs argued that the defendant physician departed from the standard of care by failing to include pancreatitis in her differential diagnosis, and by failing to test for same. The defendant asserted that the patient had viral gastroenteritis, which likely caused pancreatitis in the days that followed. The decedent was married and earning 200K at the time of death.

May 2011

Jury clears emergency medicine physician of alleged delay in treating STEMI causing death of 35 year old husband and father.

Plaintiff's decedent arrived at the ER via EMS, after collapsing while playing hockey. Plaintiff had an occlusion of the LAD (left anterior descending coronary artery), but expired shortly after catheterization and stenting was accomplished that night. Plaintiff brought suit against our defendant physician alleging he delayed in performing an EKG and obtained unnecessary CT scans, thereby delaying the diagnosis and treatment of STEMI (ST segment elevated myocardial infarction). The jury returned a verdict in our client's favor on these issues. The plaintiff had previously settled its claims against the co‐defendant hospital for delaying the opening of the cardiac catheterization lab. Plaintiff's decedent was survived by his wife and four month old child, and physician father.

May 2011

Brooklyn jury returns verdict in favor of orthopedic surgeon in case alleging an improperly performed pelvic fracture fixation and reduction, followed by premature progression to weight-bearing.

In 2003, the 58-year-old plaintiff sustained a pelvic fracture involving the symphysis pubis and sacroiliac joint, along with multiple other injuries, when she was struck by an automobile while crossing the street. Nine days after the plaintiff's admission to Brookdale Hospital, the defendant orthopedic surgeon performed an open reduction and internal fixation of the pelvis. Six months later, plaintiff was required to undergo additional surgery, as the pelvic fracture had failed to heal. Plaintiff contended that she had experienced a hypertrophic nonunion as a result of defendant's (1) failure to achieve sufficient reduction; (2) failure to place sufficient hardware; and (3) premature progression to weight-bearing status, on post-operative day 11. The defense argued that plaintiff had experienced an atrophic nonunion—the fracture had failed to heal secondary to lack of blood supply. The jury agreed, finding in favor of the defendant on all three issues.

September 2010

Staten Island jury returns unanimous verdict in favor of obstetrician in case alleging negligent treatment of post-partum patient's mastitis resulting in permanent scarring of the breasts.

The 30-year old plaintiff developed an infection of the right breast (mastitis), and soon thereafter the left breast. The defendant ob-gyns treated both infections with Dicloxacillin, a broad-spectrum Methicillin-class antibiotic. Plaintiffs contended that standard medical practice required that breast milk be expressed for culture before initiating antibiotic therapy. The left breast did not respond to treatment, the infection became worse and the patient required surgery to incise and drain an abcess. MRSA (Methicillin Resistant Staph Aureas) was eventually cultured from the right breast, following incision and drainage of a third infection.

Defendants contended that a culture was not required and that MRSA was not responsible for the left breast infection.

June 2010

Jury rejects infant-plaintiff's claim that pediatrician was negligent in delaying diagnosis of retinoblastoma, resulting in loss of eye. Defense overcomes photographic evidence.

A Westchester County jury returned a unanimous verdict in favor of a pediatrician and against an 8 year old girl who had her left eye surgically removed in 2002, at age 14 months, following the diagnosis of a retinoblastoma, a malignant tumor which had invaded more than 75% of the eye. The plaintiffs claimed that more than three dozen photographs proved that the tumor was present 8 months prior to the diagnosis, and should have been detected on well-baby exams at 6, 9 and 12 months of age by the defendant. The defense conceded that photographs as early as 7 months of age demonstrated the tumor, but that the standard pediatric well-baby ophthalmic exam could have and did miss the tumor. The case hinged on the purpose of a red-reflex exam, which the defense contended was normal at each visit until diagnosis.

May 2010

Jury finds in favor of orthopedist in alleged failure to diagnose RSD case; deliberations last just 30 minutes.

A Westchester County jury took just 30 minutes to return a unanimous verdict in favor of a White Plains orthopedic surgeon, in a suit brought by a 40-year old patient he had treated for a calf muscle tear and neuropraxia of the common peroneal nerve. Plaintiff contended that the doctor administered the wrong treatment - splinting and immobilization - when she developed reflex sympathetic dystrophy, and that his failure to initiate aggressive physical therapy for RSD (begun later by her next doctor) deprived her of a substantial chance of recovery. The plaintiff claimed to suffer from constant burning pain in the lower extremity; investigation, including video surveillance, suggested she had made substantial improvement.

February 2010

Queens jury exonerates internist in malnutrition, Stage 4 sacral pressure ulcer claim.

In the Supreme Court, Queens County, Mr. Gerspach successfully defended an internist in a suit brought by the family of an elderly woman suffering from esophageal cancer. Plaintiff claimed that the defendant failed to adequately monitor his mother's nutritional status and declining Albumin levels, and failed to examine her skin and ensure that the nursing staff was taking appropriate precautions to prevent the progression of a Stage 1 ulcer seen shortly after admission, to a Stage 4. The jury accepted the defense position that the patient's nutrition was optimized, and that responsibility for examining the patient's skin and implementing procedures to prevent and treat pressure ulcers rested entirely with the Hospital's nursing staff.

Dec 2009

Manhattan jury returns verdict in favor of two bariatric surgeons.

The surgery at issue was a "re-do" involving the conversion of a prior silastic banded gastroplasty to a Roux – en – Y bypass. Plaintiff, a gastroenterologist, alleged that we had crossed staple lines placed during the open Roux with intact staple lines from the prior restrictive procedure, creating a trapped island or blind segment which had no outlet. Plaintiff was hospitalized over a dozen times for multiple bleeds, leaks, abscesses and fistulous tracts, and underwent definitive near-total gastrectomy a year later. He also developed an addiction to Methadone, necessitating detox. Defendants denied that they crossed lines, and prevailed on that issue. The defense was complicated by the surgeons' OR schedule and testimony by them that they were involved in another difficult, elective surgery at the time of plaintiff's procedure, and that they had "criss-crossed" operating rooms, spending just a portion of the plaintiff's 4 hour procedure working together – contrary to their assurance to plaintiff that they'd be doing the risky revision together.

June 2009

Manhattan jury returns unanimous verdict in favor of gastroenterologist and against plaintiff whose bowel was transected during routine screening colonoscopy; lack of informed consent also alleged - Jury deliberated for just 30 minutes before finding in defendant's favor.

On June 18 a New York County jury returned a unanimous defense verdict in favor of our client, a gastroenterologist, in an action which involved a complete transection of the bowel during a routine screening colonoscopy performed by him. The 48 year old female plaintiff alleged lack of informed consent (in fact, there was no documentation of any discussion); that the procedure was not indicated at her age in the absence of a personal or family history of polyps or colon cancer; that defendant's recommendation for the procedure was motivated purely by financial gain; and negligence in technique, resulting in not just a tear but a severed bowel. There was also a charge of fraudulent record-keeping. We overcame the documentation issues, and on cross-exam the plaintiff was exposed as an untrustworthy witness. The injury became easier to accept after that, and our jurors took just 30 minutes to return their verdict in our client's favor.

May 2009

Brooklyn jury exonerates orthopedic surgeon of alleged failure to diagnose hip fracture.

The elderly plaintiff with history of recent falls and Parkinson's disease presented to the Brookdale Hospital Emergency Department complaining of right hip pain. No x-ray was taken during the ensuing admission, and the attending orthopedic surgeon did not document an examination. He had previously treated plaintiff for a right shoulder fracture and continued treatment for that problem during the subject admission. Several weeks later a displaced femoral neck fracture was diagnosed during rehabilitation of the shoulder fracture. Plaintiff contended that she had suffered an insufficiency or non-displaced fracture which became displaced as a consequence of the defendant's negligence, necessitating a hemi-arthroplasty. She claimed that she was not able to return to her prior independent state. Our jury took just 20 minutes to find in favor of our client.

March 2009

Jury finds in favor of pediatrician in case involving two lead paint poisoned infants.

A Yonkers landlord had conceded responsibility in the lead-poisoning of two infants age one and two. The trial proceeded against the pediatrician on the theory that he had failed to inquire of the single-parent mother about the apartment (which had hazardous levels of lead-based, peeling paint) and failed to perform or refer the children for a blood-lead screen as required by the law and standard of care. Plaintiffs argued that the defendant's medical records were devoid of any proof that the standard of care was met. Elevated blood-lead levels were diagnosed on testing by another pediatrician soon after the infants left the defendant's care. Photographs were introduced at trial by the plaintiff, depicting the apartment at the time in question.

A jury of four women and two men returned a verdict in favor of the pediatrician on all issues.

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