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$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 .
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