Retinal Surgeon Settles Case During Trial for Negligent Surgery

On March 3, 1998, the plaintiff reported to his regular ophthalmologist with an emergency that had begun four days earlier when he developed large floaters in his left eye accompanied by flashing and limited visual acuity. He further complained of having developed a black spot in the left temporal periphery of the left eye which began on March 2, 1998 and continued. The ophthalmologist examined the eye and diagnosed a retinal detachment, which he drew in a fundus drawing of the eye (clock-like) as encompassing an area of 2 clock hours. He also found retinal folds and a possible retinal tear. As a result of his findings that evening, the ophthalmologist immediately called the defendant retinal specialist in his group and advised her of his findings. An appointment was arranged for the very next morning (March 4, 1998 at 9:00 a.m.), and according to the plaintiff, he was advised by his ophthalmologist to prepare himself for emergency retinal surgery. As a result, the plaintiff, accompanied by his wife, consulted the retinal specialist the morning of March 4, 1998 . He had intentionally not eaten so that emergency surgery could take place. By the time he was examined again, his retinal detachment that had more than doubled in size and now encompassed approximately 5 clock hours on the fundus drawing made by the defendant. She also found a 2 clock hour retinal tear with a rolled posterior edge. At the same time, she noted lattice degeneration (a thinning of the retina) in the left eye and made a note that she would have to examine the right eye in due course to determine if a similar condition existed in that eye. In spite of the severe risk of further deterioration to the left eye, the defendant did not perform surgery on March 4, 1998, and instead arranged for surgery the following day, which did not begin until after 2 p.m. Although the defendant alleged that no hospital operative suite was available to do the surgery on March 4, 1998, testimony would have been presented by the plaintiff from a former employee of the hospital that one was available on March 4, 1998. Also, written procedures were in place to allow a physician with an emergency patient to bump other surgeries.

The defendant retinal specialist had determined that plaintiff required a scleral buckle procedure to repair the retinal tear and the retinal detachment in the left eye. This procedure, which also involves the freezing of the retinal tissue with a welding type of procedure to repair the tear, entails the wrapping of a silicone band around the eye to force the retina back against the back of the eye so it can heal. Unfortunately, prior to the procedure beginning, the defendant examined the left eye and found additional pathology: the retinal tear had expanded to a "giant" tear encompassing a full quadrant of the eye, blood was found in the vitreous of the eye, and a second retinal tear had developed in the upper portion of the same eye. This progression of symptoms and pathology indicated severe vitreous traction causing posterior vitreous detachment which was damaging the retina, and could no longer be remedied by a simple scleral buckle procedure. Rather, at that point, the plaintiff required a vitrectomy to remove the entire vitreous in the eye, and replace it with a fluid or a gas, which holds the retina in place, after the retinal tears are repaired, and alleviates the tractional forces pulling at the retina which cause further injury. This procedure should have been combined with the scleral buckle.

In the days following the surgery, the plaintiff continued to have severe vitreous hemorrhage to the point where the retina could not be adequately examined without ultrasound. It was not until March 20, 1998 that the defendant determined that the vitrectomy was necessary to alleviate the plaintiff's conditions, at which point surgery was scheduled for March 25, 1998. Unfortunately, by that time, the plaintiff had developed a total retinal detachment involving all 12 clock hours of the fundus, and now was detached at the macula, which is the center of fine detailed vision in the eye. Further, the second retinal tear which had been found during the March 5, 1998 surgery at the top of the left eye, had now also become a giant retinal tear. Following the March 25, 1998 surgery, the plaintiff continued to deteriorate and developed a complete deterioration of the eye which caused it to shrink and become useless. A year later, the eye was surgically removed and plaintiff now has a prosthetic eye on the left side.

As previously noted, the defendant also failed to examine the right eye during plaintiff's first visit on March 4, 1998. This failure continued for several months, and at no time was the right eye examined or treated prophylactically for probable lattice degeneration, a thinning of the retina. Plaintiff's contended that this thinning was in the superior, or upper, portion of the eye, which went on to suffer a retinal detachment in March of 2000, two years later. This resulted in multiple surgeries on the right eye, which were only modestly successful and have left that eye legally blind.

The defendant contested these allegations and argued that the delay in performing surgery was not meaningful under the circumstances. Further, it was argued that the determination to perform a scleral buckle procedure alone, without a vitrectomy, was a matter of medical judgment, which was justified under the circumstances. The defendant further argued that although it was negligent to fail to examine the right eye both initially and in the months of treatment thereafter, the retinal detachment sustained in the right eye was unrelated to that negligence and not her fault. In support thereof, the defendant would have argued that the new retinal surgeon who treated the right eye performed the combination of a scleral buckle and vitrectomy (as plaintiff contends had been necessary to treat the left eye), and nevertheless, complications resulted in substantial loss of plaintiff's vision in that eye as well. Lastly, the defendant would have presented a strong Scafidi defense seeking credit for plaintiff's pre-existing conditions in both eyes, to the extent they were not the defendant's fault.

Attorneys Amos Gern and John Ratkowitz resolved the case after two days of trial.

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Retinal Surgeon agrees to $600,000 Settlement After Two Days of Trial after Plaintiff Suffers Vision Loss After Eye Surgery

On March 3, 1998, the plaintiff reported to his regular ophthalmologist with an emergency that had begun four days earlier when he developed large floaters in his left eye accompanied by flashing and limited visual acuity. He further complained of having developed a black spot in the left temporal periphery of the left eye which began on March 2, 1998 and continued. The ophthalmologist examined the eye and diagnosed a retinal detachment, which he drew in a fundus drawing of the eye (clock-like) as encompassing an area of 2 clock hours. He also found retinal folds and a possible retinal tear. As a result of his findings that evening, the ophthalmologist immediately called the defendant retinal specialist in his group and advised her of his findings. An appointment was arranged for the very next morning (March 4, 1998 at 9:00 a.m.), and according to the plaintiff, he was advised by his ophthalmologist to prepare himself for emergency retinal surgery. As a result, the plaintiff, accompanied by his wife, consulted the retinal specialist the morning of March 4, 1998 . He had intentionally not eaten so that emergency surgery could take place. By the time he was examined again, his retinal detachment that had more than doubled in size and now encompassed approximately 5 clock hours on the fundus drawing made by the defendant. She also found a 2 clock hour retinal tear with a rolled posterior edge. At the same time, she noted lattice degeneration (a thinning of the retina) in the left eye and made a note that she would have to examine the right eye in due course to determine if a similar condition existed in that eye. In spite of the severe risk of further deterioration to the left eye, the defendant did not perform surgery on March 4, 1998, and instead arranged for surgery the following day, which did not begin until after 2 p.m. Although the defendant alleged that no hospital operative suite was available to do the surgery on March 4, 1998, testimony would have been presented by the plaintiff from a former employee of the hospital that one was available on March 4, 1998. Also, written procedures were in place to allow a physician with an emergency patient to bump other surgeries.

The defendant retinal specialist had determined that plaintiff required a scleral buckle procedure to repair the retinal tear and the retinal detachment in the left eye. This procedure, which also involves the freezing of the retinal tissue with a welding type of procedure to repair the tear, entails the wrapping of a silicone band around the eye to force the retina back against the back of the eye so it can heal. Unfortunately, prior to the procedure beginning, the defendant examined the left eye and found additional pathology: the retinal tear had expanded to a "giant" tear encompassing a full quadrant of the eye, blood was found in the vitreous of the eye, and a second retinal tear had developed in the upper portion of the same eye. This progression of symptoms and pathology indicated severe vitreous traction causing posterior vitreous detachment which was damaging the retina, and could no longer be remedied by a simple scleral buckle procedure. Rather, at that point, the plaintiff required a vitrectomy to remove the entire vitreous in the eye, and replace it with a fluid or a gas, which holds the retina in place, after the retinal tears are repaired, and alleviates the tractional forces pulling at the retina which cause further injury. This procedure should have been combined with the scleral buckle.

In the days following the surgery, the plaintiff continued to have severe vitreous hemorrhage to the point where the retina could not be adequately examined without ultrasound. It was not until March 20, 1998 that the defendant determined that the vitrectomy was necessary to alleviate the plaintiff's conditions, at which point surgery was scheduled for March 25, 1998. Unfortunately, by that time, the plaintiff had developed a total retinal detachment involving all 12 clock hours of the fundus, and now was detached at the macula, which is the center of fine detailed vision in the eye. Further, the second retinal tear which had been found during the March 5, 1998 surgery at the top of the left eye, had now also become a giant retinal tear. Following the March 25, 1998 surgery, the plaintiff continued to deteriorate and developed a complete deterioration of the eye which caused it to shrink and become useless. A year later, the eye was surgically removed and plaintiff now has a prosthetic eye on the left side.

As previously noted, the defendant also failed to examine the right eye during plaintiff's first visit on March 4, 1998. This failure continued for several months, and at no time was the right eye examined or treated prophylactically for probable lattice degeneration, a thinning of the retina. Plaintiff's contended that this thinning was in the superior, or upper, portion of the eye, which went on to suffer a retinal detachment in March of 2000, two years later. This resulted in multiple surgeries on the right eye, which were only modestly successful and have left that eye legally blind.

The defendant contested these allegations and argued that the delay in performing surgery was not meaningful under the circumstances. Further, it was argued that the determination to perform a scleral buckle procedure alone, without a vitrectomy, was a matter of medical judgment, which was justified under the circumstances. The defendant further argued that although it was negligent to fail to examine the right eye both initially and in the months of treatment thereafter, the retinal detachment sustained in the right eye was unrelated to that negligence and not her fault. In support thereof, the defendant would have argued that the new retinal surgeon who treated the right eye performed the combination of a scleral buckle and vitrectomy (as plaintiff contends had been necessary to treat the left eye), and nevertheless, complications resulted in substantial loss of plaintiff's vision in that eye as well. Lastly, the defendant would have presented a strong Scafidi defense seeking credit for plaintiff's pre-existing conditions in both eyes, to the extent they were not the defendant's fault.

Attorneys Amos Gern and John Ratkowitz resolved the case after two days of trial.

Jury Enters Verdict Against Interventional Radiologist for $1.2 Million Dollars Following Negligent Stenting Procedure

The jury found that the defendant, an interventional radiologist, had negligently performed the bilateral iliac stenting procedure at a Morris County hospital on November 14, 1995 The plaintiff had previously undergone a diagnostic arteriogram for evaluation of left lower extremity ischemia, or loss of blood flow, the same day. This demonstrated an irregular moderately severe left common iliac artery stenosis, a left superficial femoral artery occlusion, as well as a moderate right common iliac artery stenosis.

As a result, it was decided by the interventional radiologist that the plaintiff required placement of arterial stents at the level of the bilateral stenoses to improve or reestablish blood flow. Arterial sheaths were then advanced beyond the stenoses. Bilateral balloon expandable stents were then advanced within the sheaths to the level of the stenosis, in what is known as a "kissing balloon" technique. This is a procedure designed to expand both of the iliac arteries at the same time, to avoid having arteriosclerotic plaque pushed over to one side or the other, thereby causing other complications. Without adequately pulling back the sheaths, both balloons were expanded within the sheaths, resulting in a stretching of the sheaths and an immediate obstruction of the blood flow to both lower extremities. This then required emergency aortobifemoral bypass surgery and stent removal by a vascular surgeon.

The emergency surgery required extensive incisions along both femoral arteries and a 29 cm. abdominal incision to below the umbilicus, in order to remove the obstructing stents. Further, to re-establish blood flow, it was necessary for the vascular surgeon to perform a graft from the aorta to the femoral arteries using an artificial Dacron graft.

As a result of the emergency surgery, the plaintiff was required to remain hospitalized for twelve days, with numerous complications, which would not have occurred had the angioplasty/stenting procedure been performed properly as a same day outpatient procedure.

Further, while the plaintiff remained in the hospital, he developed a hospital-borne infection, known as a methycillin resistant staph abscess (MRSA) in his left foot. The infected foot resulted in a substantial loss of tissue, later fractures of the heel from osteomyelitis, (an infection of the bone) all of which required extensive plastic surgery and reconstruction. Ultimately, a large free flap of muscle from the abdomen was grafted onto his foot in order to revascularize the foot, fight off the osteomyelitis infection, and allow it to heal. The free flap graft was covered with split thickness skin grafts obtained from his right thigh and covered the open wound of the left foot. As a result of the deformities to the left lower extremity, the plaintiff became totally disabled from his employment.

The matter was tried over a four week period, and for 18 trial days.

The plaintiff's were represented by Amos Gern, Esq. and John J. Ratkowitz, Esq.

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Ironworker Suffering Multiple Comminuted Fractures of the Spine Settles Case at Mediation

The plaintiff was a journeyman ironworker performing steel connection work on a warehouse being erected in Monmouth Junction, New Jersey. The plaintiff's employer hired a crane operator, to provide cranes and a crane operator to lift the steel to the location where the ironworkers were erecting the warehouse. On the afternoon of the accident, the plaintiff was working with another ironworker, connecting steel bar joists to the bay structure of the warehouse. A steel bar joist was delivered by the crane operator in a sudden manner, without warning, without the customary hand signals from the ironworkers, and at a high rate of speed angled directly at the plaintiff, who was not tied off in any manner. While attempting to deflect the joist, the plaintiff's work glove became caught and he was pulled off the structure. There was no fall protection in place for the ironworkers at the site, and the plaintiff fell 45 feet to the ground below sustaining multiple comminuted spinal fractures.

At the time of his accident, the plaintiff was a member of a three man connecting team that included his cousin, and a relative of his employer's owner. The three man team was responsible for landing and connecting steel bar joists that were delivered by the crane operator, with two of the ironworkers connecting the joist and one applying an x-brace in the middle of the joist connecting it to the other joists.

Plaintiff alleged that neither he nor his connecting partner ever signaled for the crane operator to deliver the joist that pulled him off the steel. This testimony was supported by plaintiff's connecting partner, and both of them maintained that the crane operator had repeatedly failed to follow hand signals on other occasions. While the crane operator maintained that he was given the hand signals, and that the method of his delivery was appropriate, he had no specific recollection of the angle and movement of the joist, and did confirm that the plaintiff's glove got caught on the joist that he was delivering.

At the time of the accident, the general contractor and the subcontractor all failed to provide proper fall protection in compliance with OSHA requirements. No static lines or other means were provided to tie off a body harness-tether while the ironworkers were up on the steel. Further, no safety nets were installed. The sole means of fall protection in place for ironworkers at the site was the use of manlifts, which were inadequate in number and not properly maintained. Although the ironworkers were customarily brought up to the steel structure by the use of manlifts, these devices were not left in place to allow the ironworkers to work from an attached basket so as to permit them to tie off with a body harness-tether device as fall protection. The manlifts were further impeded by wet and uneven ground conditions which made it difficult to properly locate the devices and caused them to get stuck in the mud. Due to the inadequacy of the fall protection system in place, ironworkers were routinely permitted to stand on the steel to make connections while not protected from falls in any manner. In fact, they were actually encouraged to wear full body harnesses, without tether straps and without a means of tying off, to give the appearance that they had fall protection, in the event OSHA inspectors came to the construction site.

The superintendent and project manager for the general contractor had a trailer office approximately 300 yards from the site of plaintiff's fall. They allegedly walked the site on a regular basis, yet failed to monitor the fall protection and safety at the job site, instead deferring to plaintiff's employer.

After plaintiff sustained his injury and was brought by ambulance to Robert Wood Johnson University Hospital in New Brunswick, an alcohol test specimen was collected and revealed a post-accident blood serum alcohol concentration of .054%. This is the equivalent of a blood alcohol concentration of approximately .045%. It was determined that plaintiff had consumed beer over lunch, and his fall took place approximately two hours after lunch. Blood alcohol experts were retained by both the plaintiff and defendants, who each concluded that plaintiff's blood alcohol concentration at the time of the fall was between .05 and .07%, and that the beer consumption would have been approximately 48 ounces during the lunch period. While the experts agreed that in controlled laboratory settings, impairment can begin at .04%, plaintiff's expert relied on the descending blood alcohol concentration to conclude that this was a late stage absorption. Further, it was undisputed that the plaintiff was an experienced and accomplished ironworker and had demonstrated no physical impairments prior to the accident while in the process of landing and connecting many other bar joists. He demonstrated no unusual behavior indicative of impairment, and plaintiff's expert viewed his impairment as subtle and disagreed with a conclusion that the risk of an accident was substantially increased at .05% BAC.

Plaintiff had landed on his back in deep mud. He remained conscious, in severe lower back pain and was having trouble breathing. Emergency CT scans and x-rays revealed several comminuted fractures in the thoracic and lumbar spine. Surgery was not performed until the following day at which time a straight incision was made in his back from T6 in the thoracic spine through L4 in the lumbar spine which was hooked off over the right ilium for bone harvesting. Plaintiff sustained a burst fracture at the L1 lumbar vertebra with spinal canal compromise and an additional anterior compression wedge fracture at T10 in the thoracic spine. A thoracolumbar reduction of fractures with pedicle screws and hook instrumentation was made from T9 to L2, together with an arthrodesis from T11 to L2 using rods. The spinal canal was compromised because of retropulsion of bone into the canal, and there were numerous fractures of the transverse processes. The surgical procedure took 10 hours and the plaintiff lost four liters of blood limiting the surgery. While at Robert Wood Johnson, for the next ten days, he contracted a facial infection with painful cold sores and suffered a mild left lower lobe pneumonia. From Robert Wood Johnson, he was taken directly to Kessler Institute for Rehabilitation in West Orange, where he remained for several weeks. Over the course of the next year, the plaintiff progressed from a wheelchair to a rolling walker, to the use of a cane, and was required to wear a full molded back brace to restrict movement in the spine. Ultimately, lumbar range of motion plateaued at 50% and lifting restrictions at 25 lbs.

Having determined that he could no longer work as an ironworker, or in any other physically active job, plaintiff returned to college, and obtained a BA as an English major and secured a full time position as an English teacher.

Attorneys Amos Gern and John Ratkowitz were able to resolve the case after expert depositions.

$20.5 Million Dollar Medical Malpractice Verdict for Failure to Timely Treat Retinal Detachment

Amos Gern and John Ratkowitz, obtained a jury awarded of $17 million on behalf of a 58 year old patent attorney left blind in one eye following negligent treatment by a retinal surgeon in September and October of 1995.

The unanimous verdict, reached on February 25, 2000, before the Honorable F. Michael Caruso, also awarded $3.5 million to his wife on her per quod claim, bringing the entire verdict to $20.5 million dollars.

The plaintiffs alleged that the defendant retinal surgeon negligently delayed laser photocoagulation surgery on the plaintiff's left eye when it developed a torn retina on September 28, 1995.

The jury found the defendant should have performed prophylactic laser surgery on the left eye, which would have prevented a later retinal detachment. The jury also determined that the doctor improperly failed to inform the plaintiff of the urgency and danger posed by delaying the laser surgery for the torn retina. Thus, instead of an immediate procedure, plaintiffs alleged that the defendant negligently arranged for the patient to return for treatment on a subsequent date that ultimately proved to be too late.

Further, the plaintiffs alleged that the defendant failed to see the plaintiff and treat more significant symptoms, involving smokey vision and halos around lights after the plaintiff called and reached the doctor's office between the two visits.

By the time the plaintiff arrived for his laser procedure, it was discovered that the original torn retina had become detached at the very location originally discovered to be damaged, and two additional tears had occurred in the retina. As a result, a simple office procedure involving the laser photocoagulation, or cryotherapy, could no longer be performed, and the plaintiff needed a scleral buckle operation, with cryopexy, to reattach the retina to the back of the eye, in an extensive operative procedure.

The plaintiffs also alleged that the defendant was negligent in the performance of the scleral buckle operation, in that he applied excessive cryopexy to the left retina, which caused an inflammatory process known as proliferative vitreoretinopathy (PVR). During the next two years following the surgery, the plaintiff developed severe double vision, a permanent dilated pupil, loss of blood supply to the iris, a macular pucker with distorted vision, and deteriorating vision with a continuing inflammatory process, causing the retina to continue to separate and detach.

Ultimately, the plaintiff went through a vitrectomy (involving replacing the vitreous of the eye with a gas bubble) and other extensive retina surgery, which failed and resulted in a totally detached retina. As a result, the plaintiff completely lost his sight in January of 1998, and developed a shrunken eye which will require cosmetic correction by use of a glass eye or a hand-designed shell cover, which keeps the eye from continuing to shrink and wither. Plaintiff's spouse received a substantial per quod award $3.5 million.

A Critical Analysis of the Self-Critical Analysis Privilege

This article was published in the New Jersey Law Journal's Complex Litigation Supplement on April 19, 1999.

When an unusual incident involving a patient occurs at a health care facility, it may be the subject of peer review by a committee created within the hospital. This kind of review is likely if the incident  caused the patient to file a medical malpractice complaint. Peer review analysis and the reports from morbidity and mortality committees contain a great deal of factual information relevant to a medical malpractice case. Notwithstanding, defendants have been largely successful in shielding these materials during discovery by arguing that these documents are protected by the so-called self-critical analysis privilege. This article analyzed the development of federal case law that dealt with the self-critical analysis privilege and argues that courts should not allow hospitals to shield relevant evidence from disclosure by incorrectly applying the doctrine.