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Kings County

This was an action involving a male plaintiff, age 24 at the time of the deviation, who had suffered brain damage which had affected his ability to ambulate four years earlier as a result of a self induced overdose of Quaaludes, Methadone and alcohol at a New Year’s Eve. The plaintiff, who was admitted for a triple laminectomy and the removal of scar tissue in the cervical cord which was causing extensive pain, contended that although the surgery was performed very well, the defendant surgeon negligently failed to replace the cervical collar after examining him five days post-surgery. The plaintiff also contended that despite written orders that the collar be utilized, the nurses failed to replace it. The plaintiff contended that four days later, when he was out of bed without the collar, he developed signs of a drop in blood pressure and that although a nurse noted it, she did not return him to bed. The plaintiff contended that he suffered a flexion injury after his head precipitously dropped forward when he fainted as he was sitting in a chair and that the combination of the alleged flexion injury and loss of blood pressure itself culminated in an infarct to the cord which caused quadriparesis and which will permanently restrict the plaintiff to a wheelchair, leaving his already limited arm and hand strength much more restricted and occasioning the need for 24 hour per day care.

The plaintiff maintained that prior to the hospitalization in question, he was able to ambulate slowly with a cane and required a wheelchair only upon more rapid or extended walking. The plaintiff, who had undergone a number of prior surgeries after the overdose, had an electrical stimulation device implanted into the cervical area approximately one year earlier in order to block pain. The plaintiff contended that although properly performed, the implant was not successful and that he also developed scar tissue, prompting the subject hospitalization. The plaintiff had no criticisms of the subject surgery which included a triple laminectomy and the excision of scar tissue.

The plaintiff contended that over the approximate five day period following the surgery, he was improving and regaining more function in the upper and lower extremities. The records of the operating physician reflected that the family was pleased and that the physician was hopeful for significant, further improvement. The plaintiff maintained that during an examination five days after the surgery, the physician removed the cervical collar and failed to replace it. The plaintiff contended that the collar was not replaced over the ensuing four day period. The plaintiff essentially remained in bed during this four day period and there was no claim that any injury was sustained during this time. The plaintiff asserted, however, that he was out of bed for an extended period on the fifth day without the collar. The plaintiff maintained that after a long bowel movement, he felt exhausted, and advised the nurse that he wished to return to bed. The plaintiff’s expert neurologists contended that such exhaustion was probably a precursor to a drop in blood pressure. The plaintiff maintained that the nurse advised him to first finish breakfast while sitting in a chair. The plaintiff contended that as he was doing so, he felt faint, that his head slumped forward and that he was found in an unconscious state by the defendant neurosurgeon.

The plaintiff’s expert neurologists maintained that the defendant physician deviated in failing to replace the collar and that the nurses deviated in failing to do so over the next several day period, especially since there were orders in the records for the plaintiff to wear such a collar. The plaintiff had also named the neurologist who had obtained the defendant neurosurgeon as a defendant, contending that she was also monitoring the patient and should have replaced the collar. This aspect settled prior to trial for $________.

The plaintiff additionally contended that the nurses should have replaced the collar. The plaintiff asserted that when he asked the nurse if he should to return to bed when he became exhausted, she should have helped him back to bed. The plaintiff contended that as he was eating breakfast, he became very diaphoretic (cold, sweaty and clammy) and that the nurse, who was walking by his room, observed such a condition. The plaintiff maintained that such diaphoresis was an emergent situation and a precursor to his fainting. The plaintiff contended that the nurse, who noted such a diaphoretic condition, should have treated it as an emergency. The plaintiff asserted that if he had been immediately returned to bed upon developing such symptoms, the blood pressure would have returned to normal and that catastrophic event averted.

The defendant non-settling neurosurgeon questioned if the patient had been without a collar for this period. The nurses contended even that if the collar was missing, they had not deviated. The nurses contended that the doctors were present during each of the subsequent examinations and that their conduct and deeds in not replacing it had, in affect, countermanded the written orders.

The nursing records contained no mention of the collar being present after the time the plaintiff contended it had been removed.

The defendants denied that any portion of the care resulted in the spinal cord difficulties. The defendants contended the plaintiff developed a blood clot which was a normal risk of the surgery and which caused any spinal cord damage. The defendant also contended that the chest would prevent the head from flexing sufficiently to cause such injury. The plaintiff countered that even if such flexion injury had not occurred, it was clear from the incident of fainting that the plaintiff suffered a severe loss of blood pressure which in turn resulted in the loss of blood supply to the cord and additional neurological insult. The plaintiff elicited testimony from the nurse who had advised him to finish breakfast while sitting in a chair that when she saw the patient approximately 1/2 hour before he was found unconscious, he was, in fact, diaphoretic. The plaintiff contended that in view of this concession and the fact that the plaintiff was found unconscious 1/2 hour later, the plaintiff’s position should be accepted and the defense contention that a mere normal risk of the surgery had occurred should be rejected.

The plaintiff contended that when the blood pressure was taken after he was returned to bed, it remained low and argued that it was clear that before he was placed in bed, it was particularly low.

The plaintiff contended that before he had entered the hospital for the subject surgery, he had approximately 70% of his physical functioning. The plaintiff maintained that his prior limitation of the upper extremities were only moderate. The plaintiff contended that he now suffers quadriparesis and is confined to a wheelchair which must be pushed by another individual. The plaintiff maintained that it remains to be seen if he will be able to gather sufficient strength to even use an electric wheelchair by himself.

The defendants asserted that the plaintiff’s condition before he entered the hospital was much worse than claimed and that he was only functioning at an approximate 40% level of normal. The defendant contended that the plaintiff had required a wheelchair at all times. The prior records contained contradictory entries regarding this issue and other questions regarding his overall prior condition. The plaintiff introduced a videotape taken approximately two years earlier in conjunction with treatment which depicted him walking with the cane and using his arms. The defendants contended that the brain damage caused by the earlier overdose had resulted in a progressive deterioration of the plaintiff’s symptoms and that he was in a much worse condition when admitted for the subject hospitalization. The plaintiff denied that this position was accurate and further contended that the any deficits occurring from the overdose would not continue to deteriorate, arguing that he was no worse when admitted for the subject hospitalization than he was on the videotape taken two years earlier.

The plaintiff maintained that he will require 24 hour a day home care because of his inability to ambulate and other anticipated complications. The plaintiff maintained that the costs of such care will approach $________. The plaintiff made no wage claims.

The jury found the non-settling physician 5% negligent and the settling physician 5% culpable. They also found the hospital negligent for failing to follow doctors’ orders, for failing to put him back to bed when requested, and for failing to declare an emergency when the nurse observed that he was diaphoretic while sitting in the chair. They then awarded $________, including $________ for past costs of care, $________ for past pain and suffering, $________ for future costs of care and $________ over 34 years for future pain and suffering.

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