$300,000 result- cited in The New York Jury Verdict Reporter

XVI/8-12 Medical Malpractice - Sciatic Nerve Injury During Hip Replacement Surgery - Leads To Drop Foot

Jean and Harry Zibulsky v. Martin Wolpin, M.D. 108/93 5-day trial Verdict 6/22/98 Kings Civil

Judge: Karen B. Yellen

Verdict: $300,000 for Jean Z. Breakdown: $150,000 for past pain and suffering; $150,000 for future pain and suffering. $100,000 for Harry Z. Breakdown: $50,000 for past loss of services; $50,000 for future loss of services. Jury: 1 male, 5 female. The case settled for $340,000 while post-trial motions were pending.

Pltf. Atty: Alan M. Greenberg, Manhattan, trial counsel to Rosenberg, Minc & Armstrong, Manhattan

Deft. Atty: Nicholas J. Marotta of Aaronson, Rappaport, Feinstein & Deutsch, L.L.P., Manhattan

Facts: On 10/2/90, Pltf., age 73 at the time, underwent a total hip replacement performed by Deft. Wolpin. An immediate drop foot, signifying a sciatic nerve injury, was diagnosed post- operatively by Deft. The drop foot was treated conservatively without improvement. Pltf. claimed that she has permanent loss of dorsiflexion and eversion (rotation outward), which were both conceded by Deft. at trial. Pltf. claimed that Deft. departed from the standard of care by placing a screw in or on the sciatic nerve while fixing an acetabular cup as part of the hip prosthesis; burnt the sciatic nerve by allowing heat cement to penetrate the pelvic wall; over-lengthened her right leg by 1 1/2 inches by inserting a femoral stem that was too long; and failed to recognize a posterior screw impinging on the sciatic nerve within 48 hours of surgery. Pltf. contended that all four departures individually or in combination contributed to the sciatic nerve injury.

Deft. testified that the sciatic nerve was injured by one of the necessary intraoperative manipulations of the femur and was an accepted risk of the procedure, which occurred in 1 to 3% of all total hip replacement surgeries. The jury found that three of the four departures were a contributing factor in causing Pltf.'s injuries. Testimony indicated that Pltf. formerly was an avid dancer and gardener, and that she currently must walk with a cane, foot brace, and orthopedic shoes. Her activities are severely compromised, and her 85-year-old husband must assume all household chores. Note: We have been informed that Deft.'s expert, Dr. Leon Sultan, had been retained by Pltf.'s predecessor attorney to evaluate care for a viable medical malpractice claim. Dr. Sultan found no evidence of malpractice and advised the attorneys. During the course of discovery, his existence was discovered by defense counsel, and he subsequently agreed to testify for Deft. and appeared voluntarily, without being subpoenaed. He was allowed to testify over Pltf.'s objection at trial on grounds of work product privilege and prejudice . No offer; demand: $750,000; amount asked of jury: $1,250,000 (for Pltf. Jean Zibulsky). Jury deliberation: approximately 2 1/2 hours. Carrier: FOJP.

Pltf. Expert: Dr. Marvin Wihell, orth. surg., South Plainfield, New Jersey.

Deft. Expert: Dr. Leon Sultan, orth. surg., Franklin Square .