New York Personal Injury Attorneys Blog

By Anthony H. Gair;

New York medical malpractice attorney Anthony Gair discusses a medical malpractice case, which was tried in New York Supreme Court, New York County, in which a woman who had since birth a congenital abnormality known as an hemangioma on the left side of the face which is caused by an abnormal distribution of blood vessels. There are different types of hemangiomas such as capillary or cavernous hemangiomas which may actually cause physical impairment. The type of hemangioma the plaintiff had was an intradermal hemangioma often referred to as a port wine stain because of its color which does not cause physical impairment. Since her teenage years, she was able to cover it up with make-up. When she was 40 years old she developed what are known as blood spots or blisters, which are raised areas on the hemangioma which caused difficulty in covering it with make-up.

Being concerned about it, she consulted with the defendant-plastic surgeon. Plaintiff claimed she only went to the physician because of the blood spots. It was claimed she had lived her entire life with the birthmark and only desired treatment for the blood spots.

Plaintiff’s strategy at trial was that the defendant was solely a cosmetic surgeon, not a reconstructive plastic surgeon who dealt with devastating physical disfigurements. The idea was to portray her as highly mercenary, going so far as to advertise extensively for patients who she claimed she could make look better. Plaintiff asserted that she told the defendant she was concerned with the blood spots because she couldn’t cover them with make-up. She testified that the defendant told her not only could she get rid of the blood spots but that she could remove most if not all of the hemangioma. The plaintiff, as would be expected, became very emotional that after all these years the hemangioma could be removed.
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In Parnell v Montefiore Med. Ctr. decided June 23, 2009, The New York Appellate Division, First Department, reinstated the complaint in a Medical Malpractice Case against the defendant hospital which had been dismissed by the New york Supreme Court, Bronx County. While affirming the dismissal of the complaint against the defendant doctor the Court held as to the hospital;

“However, we find that there is an issue of fact as to the hospital’s negligence. It was the hospital’s duty to monitor the patient postoperatively, including monitoring the chest tube and the Pleurovac closed drainage system and all its component parts. The drainage system provided continuous suction to assist in drawing air and fluids out of the pleural space. The assertion of the hospital’s expert that there was no evidence that the chest tube became detached from the suction is contrary to the record. Dr. Lonner testified that he noticed that the chest tube connection, specifically the connection between the patient and the canister attached in turn to the wall suction, was detached, and that he immediately re-attached the connection and proceeded with the resuscitation. Dr. Lonner also testified that if the tube became detached, air could go back into the pleural space and create a pneumothorax. This testimony alone, that an integral part of the drainage system had become detached and increased the risk of a pneumothorax, the very harm that befell the infant plaintiff, raises an issue of fact as to the hospital’s negligence.

Further, plaintiffs’ expert averred that it was good and accepted medical practice to check all the component parts of the chest tube and canister every time the patient was seen, at least once every hour, and that had the tube been properly monitored, it would not have become dislodged and the infant plaintiff would not have suffered a pneumothorax. He took issue with the conclusion of the hospital’s expert that a mucus plug occasioned the infant plaintiff’s respiratory arrest, pointing out that while there was evidence that the tube was dislodged when Dr.Lonner found the infant plaintiff, the medical record contains no evidence of a mucus plug.”

By Anthony H. Gair

The human body contains forty six osteofacial compartments. Within these compartments are muscles, veins, arteries and nerves surrounded by tissue called fascia which is dense and unyielding.

The most common orthopedic setting for compartment syndrome is the closed tibia fracture for which the incidence is 3% to 17% 1. This discussion will be limited to compartment syndrome following tibia fractures.

The foreleg consists of four compartments known as the anterior, lateral, posterior and deep posterior compartments 2. Located within the anterior compartment are the motors for dorsiflexion of the foot and toes; the tibialis anterior, extensor halluces longus and extensor digitorum longus muscles. These muscles are innervated by the deep peroneal nerve which enters the anterior compartment after winding around the outer surface of the neck of the fibula. Located within the posterior compartment are the gastrocnemius, soleus and plantaris muscles which plantar flex the foot and flex the leg. These muscles are invervated by the tibia] nerve. The deep posterior compartment contains the flexor halluces longus, flexor digitorum longus, tibialis posterior and. popliteus muscles. These muscles plantar flex the foot (tibialis posterior), flex the leg and rotate it medially (popliteus), flex the big toe and flex and supinate the foot (flexor halluces longus) and flex the four small toes and plantar flex and supinate the foot (flexor digitorum longus). These muscles are innervated by the tibial nerve. Finally, the lateral compartment contains the peroneus longus muscle and the peroneus brevis muscle which pronate and flex the foot. These muscles are supplied by the superficial peroneal nerve 3.
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Following extensive settlement negotiations, our partner, Jeffrey Bloom, on May 8, 2009, obtained a settlement of $9,260,500 in a medical malpractice case in which it was alleged that the defendant doctors failed to timely diagnose a small bowel obstruction in a 37 year old woman. As a result of the defendant doctors’ negligence, the plaintiff suffered multiorgan failure including renal failure that ultimately required a kidney transplant.

On December 20, 2003, the plaintiff presented at an emergency room complaining of vomiting and abdominal pain, but the defendants failed to do any diagnostic work-up repeatedly giving her pain medications which masked her symptoms. She was sent home with a diagnosis of a virus. She returned to the emergency room three days later with excruciating abdominal pain.

Although the doctors finally diagnosed her small bowel obstruction during this second emergency room visit, her surgery to relieve the obstruction was unnecessarily delayed for 16 hours. As a result of these delays, the plaintiff suffered extensive and severe injuries. She was hospitalized for a full year and then required in-patient rehabilitation for 6 months. She has undergone 16 surgeries and 15 hospitalizations to date.