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$1,000,000 result- cited in The New York Jury Verdict
Reporter
XIII/35-9 Medical Malpractice - Malpositioning Of Arm During
Surgery - Brachial Plexus Injury To Cab Driver Who Had
Pre-Existing Disability In Other Arm
David Edin v. H. Doey, M.D.; J. Doe, M.D.; New
York University Medical Center; and Dort Assoc.,
P.C. 10231/92 3-week trial Verdict 1/31/96 Judge William T. Bellard, Kings Supreme
VERDICT: $1,000,000 v. New York University Medical Center (6/0). Breakdown: $50,000 for past pain and suffering; $950,000
for future pain and suffering. Defense verdict for other Defts.
(6/0). Jury: 3 male, 3 female.
Post-trial motions for a new trial were granted in a decision
dated 12/4/96. See below.
Pltf. Atty: Alan M. Greenberg of Barton & Zasky, Manhattan
Deft. Atty: Charles L. Bach, Jr. of Heidell, Pittoni, Murphy &
Bach, Manhattan
Facts: On 1/5/90, Pltf., a 60-year-old cab driver, was admitted
to the New York University Medical Center emergency room for
repair of an incarcerated ventral hernia. Pltf. had polio at age
15 and had a withered and flaccid left arm. He underwent the
repair of the hernia by Deft. Dr. Doey, a surgeon, on 1/6/90.
The surgery was uneventful, but on 1/7, Pltf. complained of
wound pain and bulging and underwent another operation for
evacuation of a hematoma. Dr. Doey was the attending surgeon
and Dr. Doe was the resident anesthesiologist. While in the
recovery room, Pltf. complained of difficulty lifting his right
arm. Pltf. contended that he made constant complaints about his
right arm in the 3 days following the surgery. Defts. claimed
that Pltf. made his first complaint about his right arm on
1/10/90. Pltf. contended that a note in his record from recovery
room personnel indicated that his right arm had been
malpositioned during either the surgery, his transfer to the
recovery room, or in the recovery room. Pltf. claimed that his
brachial plexus had been stretched, resulting in permanent
weakness and disability.
Defts. contended that Pltf.'s complaint in the recovery room was
related to the anesthesia, which had not yet worn off at the
time . Defts. also contended that Pltf.'s right arm eventually
recovered from whatever disability appeared in the hospital.
Deft. produced a surveillance film of Pltf. in September 1995,
and contended that Pltf. was exaggerating his injuries. Pltf.'s
neurologist testified that the disability shown in the video was
consistent with a brachial plexus injury. Demonstrative
evidence: enlargements of hospital chart; anatomical sketches of
brachial plexus; doctors' reports; arm boards; breathing tubes.
No offer; demand: $ 800,000; amount asked of jury: $1,200,000.
Jury deliberation: 4 hours. Carrier: National Fire Union for all
Defts. Pltf. Experts: Dr. Michael Ackerman, anesthesiologist,
New Rochelle; Dr. Alan Mazurek, neurologist, Rockville Centre.
Deft. Experts: Dr. Betty Mintz, neurologist, Manhattan; Dr.
Robert April, neurologist, Manhattan; Dr. Isaac Azar,
anesthesiologist, Manhattan; Dr. Jay Liveson, neurologist and
EMG specialist, Manhattan; Dr. Robert Aldoroty, surgeon,
Manhattan.
In a 4-page decision dated 12/4/96, Judge Bellard found that the
verdict did not establish a logical inference drawn from the
evidence, but was based upon speculative opinions given by
medical experts. Decision at p. 3. He found that the verdict,
while not irrational was against the weight of the credible
evidence[,] and a new trial is warranted on the issue of
liability and damages against all Defts. Decision at p. 4.
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