Xxxxxx Xxxxxx v. [HZ] and [IC]
Judge: William J. Garry
Venue: Kings County Supreme Court
Settlement: $1,666,666 for [HZ]; $200,000 for [IC]
Plaintiff Attorney: Eric Turkewitz, Manhattan
Defendant Attorney: Kenneth A. Laub of Kanterman & Laub, P.C., Manhattan, for [HZ] and Bruce M. Brady of Callan, Koster, Brady & Brennan, L.L.P., Manhattan, for [IC]
On 9/2/97, Plaintiff, then a 47-year-old secretary, presented to the offices of Physicians Cosmetic Design (a/k/a Cosmacare and Cosmetic Restoration Marketing, Inc. [let out on summary judgment]) for liposuction surgery. The company owns a medical office in Manhattan, runs radio advertisements, and brings surgeons into its offices to perform surgery. Defendant [HZ] performed an extensive liposuction procedure on Plaintiff’s abdomen, hips, back, and arms. Plaintiff claimed that during the procedure, [HZ] injured the brachial plexus of her right (dominant) arm. Defendant [IC] provided anesthesia. Plaintiff, who was transferred to the recovery area of the office at 10 AM, after the 2-hour procedure, failed to come out of the anesthesia despite the repeated administration of reversal agents at about 10:15 AM, and again at 1:15 PM. [IC] testified that she considered this an emergency, due to the risk of internal hemorrhage, intracerebral event, or coagulopathy, and that Plaintiff needed to be transferred immediately to a hospital. [IC] testified that [HZ] protested that he already had too many patients at Cabrini Hospital, where he had privileges, and that he would make arrangements to have her admitted elsewhere. Plaintiff’s vital signs were stable and she was being administered Ringers Lactate in the recovery room. [HZ], however, never made the arrangements for transfer.
At approximately 3 PM, Plaintiff’s blood pressure dropped significantly and 911 was called. Resuscitative efforts were begun. Plaintiff was intubated by [IC] and she was transferred to New York Hospital, where she was again intubated. Plaintiff underwent an emergency exploratory laparotomy to find the cause of the bleeding. She suffered repeated hypotensive events during surgery, and her aorta was cross-clamped to increase blood pressure to the brain. The surgery did not reveal the source of the bleeding, and the surgeon concluded that Plaintiff was oozing from all parts due to disseminated intravascular coagulation (DIC).
Plaintiff suffered a brain injury due to hypotensive events, leading to hypoxia and a 1-week coma. She was hospitalized for about 1 month at New York Hospital, and for an additional 10 days for rehabilitation at Mount Sinai Hospital. Plaintiff has made a substantial recovery from her brain injury, but continues to suffer some of the effects, including slowness of speech and thought.
Plaintiff claimed that [HZ] committed malpractice by causing injury to the brachial plexus and by causing hemorrhage to the abdomen in his extensive procedure. Plaintiff further contended that [HZ]’s failure to transfer her to the hospital at 1:15 PM led to the eventual destabilization of her vital signs and the ultimate hypotension and hypoxia. Deposition testimony from the medical coordinator who met with Plaintiff upon contacting the facility, indicated that she was actually a saleswoman who was paid a straight commission to sign up surgical cases. She had no formal medical training. It was her responsibility to explain the risks and alternatives of surgery to patients, as per [HZ]’s directives. Plaintiff claimed that paying these commissions constituted professional misconduct as defined by Education Law §6509. [HZ] settled just prior to jury selection for $1,666,666.
The case against [IC] proceeded under the theory that this was an anesthetic emergency and that she was the person best equipped to understand such an emergency. Plaintiff claimed that when no ambulance had arrived by 1:45 PM, [IC] should have called 911 to arrange for immediate transfer. Plaintiff further contended that [IC] did not know how much fluid the patient had been administered, and noted that there were inconsistencies with respect to medications that Plaintiff was given. Additionally, Plaintiff’s medical chart had extensive gaps when vital signs were not recorded. [IC] argued that Plaintiff was [HZ]’s surgical patient, that she had informed him of the problem, and that he had said he would arrange for her transfer. She testified that when she saw the patient, her vital signs were stable, notwithstanding any defects in the charting. [IC] further argued that the delay in transferring Plaintiff was not a cause of injury, and that Plaintiff made a substantial recovery.
The jury was told that [HZ] was negligent as a matter of law, and that they were to decide not only negligence and causation with respect to [IC], but apportionment of liability also. After about 4 hours of deliberations, the jury sent back a note that they were deadlocked on the question of liability as to Conception. The action then settled for $200,000.
Prior to the malpractice, Plaintiff was a secretary earning $24,000 per year at a union job. She had suffered a prior depression within 1 year of the surgery, and was out of work for 5 months. At the time of trial, Plaintiff had just rejoined the workforce, earning approximately $17,000 per year in a non-union job with no benefits or security. She was having difficulty with the job because of her intellectual deficits and the injury to her arm.
Note: On or about 7/7/89, the State of New York censured and reprimanded [HZ] after determining that he had practiced medicine with negligence, practiced medicine fraudulently, willfully filed a false report, and failed to maintain accurate medical records of his treatment of two patients. In addition, [HZ] had been fined and reprimanded by the State of Florida in 1996 for failing to notify the Florida Board of Medicine within 30 days of the action taken against his license by the State of New York.
Other brain injury cases:
- $7M – Medical malpractice and wrongful death brain damaged during childbirth, who subsequently died (2015).
- $3.45M – 76-year-old Brooklyn man (2012) who went to a Manhattan hospital for hip replacement surgery. In the recovery room he had unexplained pain and then lapsed into a coma.
- $1.295M – Bronx Medical Malpractice — Failure To Admit Man With Impending Stroke – brain injury
- $625K – Dutchess Medical Malpractice — Failure To Diagnose Brain Tumor — Brain Damage
Failure to diagnose and treat a slow growing meningioma in the head, in Poughkeepsie.
