Silberstein, Awad & Miklos: Amidst the Courtroom’s New Reality, Jury Awards 20.7 Million in Largest Medical Malpractice Verdict in Manhattan Since Civil Trials Resumed

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The Jury verdict’s award in the Silberstein, Awad & Miklos, P.C. case is the largest medical malpractice verdict in the state (20.7 million) since the Covid-19 lockdown of March 2020. It is also the largest sum awarded for pain and suffering for osteomyelitis in the state of New York.

“The ability to adapt to change, utilize technology, and employ tried and true trial strategies in new and creative ways resulted in a well-deserved outcome for our client”, added Awad.

On April 12, 2022, a New York County jury at the Supreme Court of the State of New York County of New York: Civil Term: Part 4, Case number 805366/2016, reported a verdict that neurosurgeon Robert Snow of Weill Cornell and New York Hospital deviated from accepted medical practice by not diagnosing postoperative infection by failing to order repeat blood tests and MRI. The jury verdict for damages was eight million for past pain and suffering (eight years); four million five hundred thousand for future pain and suffering (32 years); six million four hundred thousand for past lost earnings; and future lost earnings of one million eight hundred thousand.

Jury verdict’s award is the largest medical malpractice verdict in the state (20.7 million) since the Covid-19 lockdown of March 2020. It is also the largest sum awarded for pain and suffering for osteomyelitis in the state of New York.

The lasting impact of the Covid-19 pandemic played a role in the plaintiff’s presentation of the case. ‘The top priority was effectively advocating for our client and ensuring a just result.’ To accomplish this goal, plaintiff’s counsel adopted a strategy to navigate pandemic related changes within the court room.

The court’s plan to ensure the health and safety of those in the courtroom included surrounding the space in plexiglass with each attorney, witness, and member of the court’s staff in their own plastic cubicle which, on first viewing, looked like exhibits in a museum display case. To allow for social distancing, jurors were moved from the jury box to the gallery. Everyone in the court room was to wear a mask at all times, with the exception of witnesses while on the witness stand.

Initially there was concern that the barriers meant to hinder the spread of covid would hinder the jury’s ability to hear and assess the credibility of witness testimony.

With the strategic use of courtroom technology, these concerns proved unfounded. "The Administrative Judge’s attention to effective communication became evident and real by the second day of the trial. Witness testimony was communicated with clarity to jurors who were seemingly more attentive to the television screens than experience in the past with open court,” said Plaintiff’s lead counsel Joseph P. Awad.

The use of courtroom technology was central to presenting the plaintiff’s case. Excerpts from medical records shown on the courtroom’s state of the art 86-inch High-Definition screen so jurors could see and read the evidence for themselves, radiology films showing the plaintiff’s permanent injuries were displayed on screen while the plaintiff’s expert neurosurgeon and infectious disease specialist demonstrated the anatomy of the spine and offered opinions as to how the infectious process progressed over time causing permanent damage to Daniel Sullivan’s spine. The jury watched the screen closely and remained attentive throughout the proceedings. “We saw that the jury took on their responsibility with great respect and remained engaged despite the hypothetical concern that jurors may have difficulty hearing the witnesses at times. The experience of the public taking their oath to serve on the jury wholeheartedly was truly humbling,” said Erica Moskowitz co-counsel for the plaintiff.

The effective use of court technology was facilitated by the professionalism and dedication of court staff. A representative from the court’s division of technology and court research was present to assist counsel in familiarizing themselves with courtroom technology prior to opening statements. “We were very impressed by the court reporters who managed to catch virtually every word that was muffled or missed by microphones,” said plaintiff’s counsel, Joseph P. Awad. During the proceedings the Honorable Justice Frank P. Nervo acknowledged, “[…] The transcript in these cases, in this case was kind of magical in many respects because of [occasional] difficulties with being able to hear[…]”

“The ability to adapt to change, utilize technology, and employ tried and true trial strategies in new and creative ways resulted in a well-deserved outcome for our client,” added Awad.

The virtual juror orientation and selection in Manhattan as announced by Chief Administrative Judge Lawrence K. Marks would be potentially efficacious in remedying the backlog in trial ready cases, especially those of short duration. Jurors seem comfortable using and paying attention to virtual technology.

On March 26, 2014, the plaintiff, Daniel Sullivan, underwent right L5-S1 lumbar microdiscectomy, laminotomy, foraminotomy, and right L4-L5 lumbar laminotomy, foraminotomy with exploration of right L4-L5 disk space which was performed by the defendant Dr. Robert B. Snow at New York Presbyterian Weill Cornell Medical Center.

At the time of his surgery, Mr. Sullivan was a successful 37-year-old bond broker.

On April 5, 2014, 10 days postoperatively, Mr. Sullivan experienced the sudden onset of severe back pain prompting him to telephone the office of Dr. Snow who prescribed medication to treat pain and inflammation. One day later, on April 6, 2014, Mr. Sullivan returned to New York Presbyterian Weill Cornell Medical Center. At the hospital, lab work revealed abnormal blood values for inflammation, specifically CRP, ESR, and WBC. An MRI was performed, and the corresponding report included findings of phlegmon and a differential diagnosis of infection, placing spinal infection at the paraspinal muscle and fascia level of the operative site at the top of the differential diagnosis.

At trial, the plaintiff contended that reasonable care in accordance with accepted practice required follow up blood studies and imaging which the defendant Dr. Robert Snow failed to do despite including infection on his differential diagnosis. The plaintiff alleged that the delay in diagnosis of infection at the site of the spinal surgery permitted the infection to invade the disc space and bone causing erosion of bone and tissue, obliteration of the L5-S1 disc, and collapse of the spine at L5-S1.

The plaintiff contended that intermittent pain on a daily basis made it impossible for him to do his job. At trial, a high-level banker from Morgan Stanley testified that he had to fire the plaintiff, even though they had become good friends, due to the plaintiff's poor job performance. Plaintiff has since transitioned to a career as a real estate developer and broker.

The defendant contended that the abnormal blood chemistry, MRI findings, and sudden onset of back pain 10 days post operatively, were consistent with normal spikes in the healing process referred to as granulation. Defendant's infectious disease expert contended that the osteomyelitis and discitis could not and would not have been diagnosed regardless of what the defendant doctor did. Defendant’s expert neurosurgeon contended that the abnormal CRP was normal and typical even when confronted with an article he authored which contradicted his testimony.

At Silberstein, Awad & Miklos, P.C., http://www.ask4sam.net practicing trial law is about more than just winning a client's case. Our firm is committed to the highest standards of professional performance, service and ethics to ensure that our clients' legal matters are managed compassionately and expeditiously. To achieve this ideal, we employ trial lawyers who are devoted to distinguishing themselves in the field of personal injury practice and who are zealously committed to our clients.

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Maggie L Jessup
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