New York Personal Injury Attorneys Blog

By: Anthony H. Gair and Howard S. Hershenhorn Gair Gair Conason Steigman&Mackauf

I. THE STARTING POINT

In order to maximize the eventual recovery on behalf of a plaintiff, a solid foundation supporting the damages claimed must be built. The construction of this foundation begins at the first interview with the plaintiff.

The following areas should be explored during the first interview:

All current treating physicians, hospitals and other health care providers
Complete details concerning plaintiff’s medical history and injuries.
Family medical history in cancer and brain damaged baby cases.
Educational background
Employment history
Collateral source providers
Prior and/or current lawsuits
Criminal record
MEDICAL RECORDS

Obtain complete hospital records not merely abstracts. The urge to save money must not outweigh the fact that if the plaintiff’s attorney does not have complete hospital records he will be at a distinct disadvantage at trial. Nurses notes, for example, provide crucial information regarding a plaintiff’s day to day condition in the hospital and are indispensable in supporting the plaintiff’s claim for pain and suffering. Such notes must be gone through diligently in order to properly prepare the Bill of Particulars so that the defendant is made aware of the magnitude of the injury claimed. They are also essential for questioning of the plaintiff’s physician at trial and to incorporate into plaintiff’s summation.

All pertinent x-rays, ct scans and mri’s must also be promptly obtained. There is nothing more disheartening than attempting to obtain these years later only to learn that they cannot be located by the hospital.

A well known trial attorney once answered, when asked at what point he began preparing his summation "When I first meet the plaintiff". The point is the plaintiff’s attorney must always have his eye on the trial and what evidence will be required to maximize his client’s recovery. As another sage said, "Cases prepared to be settled are tried. Cases prepared to be tried are settled".

DEMONSTRATIVE EVIDENCE

Depending on the injuries sustained by the plaintiff, there are various types of documentary evidence which are crucial to presenting the damages at trial.

PHOTOGRAPHS

In an auto accident case photographs of damage to the vehicles is important to show the violent nature of the crash. In a scarring or traumatic amputation case photographs of the plaintiff are essential. In a products liability case photographs of the product which caused the injury are, of course, necessary to explain to the jury the mechanism of injury. The plaintiff’s attorney must use his imagination and constantly ask how can I best convey what has befallen the plaintiff to a jury.

ANATOMICAL MODELS

Models of every part of the body are available at a minimum cost and are highly effective in conveying to the jury the debilitory effect of the injury to the plaintiff. These models can be obtained from among others, the Anatomical Chart Company, 8221 Kimball Avenue, Skokie, Illinois, 60076-2956. Phone number 847-674-0211.

MEDICAL ILLUSTRATIONS

The best known medical illustrator of our time was the late Frank H. Netter, M.D. whose medical illustrations are contained in his Atlas of Human Anatomy, Noratis, East Hanover, New Jersey. Relevant illustrations should be blown up for use at trial in conjunction with the testimony of the physician testifying on behalf of plaintiff.

MEDICAL ILLUSTRATIONS OF INJURIES

If the severity of the injury justifies the expense, the plaintiff’s attorney should consider retaining a medical illustrator. Working with the physician who will testify as to the injuries, as well as the medical records and x-rays the illustrator can prepare medical illustrations depicting the injuries sustained which emphatically bring home to the jury the devastation wrought upon the plaintiff.

SURGICAL HARDWARE

In a case in which hardware has been utilized to repair fractures, the plaintiff’s attorney should obtain exemplars of the hardware used to show the jury what has been required to be placed in the plaintiff’s body. Photographic reproductions of x-rays should also be made.

BLOW-UPS OF HOSPITAL CHART

Significant pages of the hospital chart, such as the operative report and x-ray reports should be blown-up to be used at trial.

DAY IN THE LIFE VIDEOS

In catastrophic injury cases, day in the life videos are compelling evidence and demonstrate the suffering the plaintiff must endure on a daily basis. The plaintiff’s attorney must work with the videographer to edit these to no more than ten minutes. Obviously the unedited and edited versions must be exchanged with the defendant.

ACCIDENT RECONSTRUCTION ANIMATIONS

Assuming a competent reconstruction and detailed scene and vehicle dimensions survey, a very effective way of presenting your version of an accident scenario is through an animation. For an animation to be effective as well as admissible, it must be based upon a sound factual basis. Infrared cameras can be utilized to perform an accurate scene survey including plotting vehicle crash damage. The reconstructionist must work on the animation together with the animator to lay a proper foundation for admissibility.

III. LEARNING THE MEDICINE

The days in which a plaintiff’s attorney could get up and merely do a collateral attack upon the defendant’s expert physician are long gone. It is essential for the plaintiff’s attorney to have an intimate knowledge of the area of medicine involved. The following are basic textbooks on various areas of medicine:
A. ORTHOPEDICS
1. Campbell’s Operative Orthopedics
Mosby-Year Book, Inc.
11830 Westline Industrial Drive
St. Louis, MO 63146

Rockwood and Green’s Fractures in Adults
Lippincott, Williams & Wilkins
530 Walnut Street
Philadelphia, PA 19106
Depalma’s The Management of Fractures and Dislocations, an Atlas
W.B. Saunder’s Company
West Washington Square
Philadelphia, PA 19105

OBSTETRICS
Williams Obstetrics
McGraw-Hill

Danforth’s Obstetrics and Gynecology
Lippincott, Williams & Wilkins
C. NEUROLOGY
Merritt’s Textbook of Neurology
Lippincott, Williams & Wilkins

D. PSYCHIATRY
DSM-IV-Diagnostic and Statistical Manual of Mental Disorders
American Psychiatric Assoc.
Washington, D.C.
E. OTHER SOURCES
1. The current series published by Appleton & Lang, 800-423-1359 publishes one volume paperback editions in the following areas of medicine:
Medical Diagnosis and Treatment
Pediatric Diagnosis and Treatment
Gastroenterology
Orthopedics
Cardiology
Vascular Surgery
Surgery
Surgery
Obstetrics and Gynecology
Critical Care
Emergency Medicine

2. INTERNET
Pubmed, a service of the National Institute of Medicine provides access to over eleven million Medline Citations.
Online medical dictionary http://www.cancerweb.ncl.ac/
(iii)Food and Drug Administration - http://www.fda.gov/

THE EXPERT
1. TREATING PHYSICIANS
All treating physicians should be contacted in order to determine whether they will testify. It is always preferable to have the treating physician testify as to the plaintiff’s injury. It avoids collateral attack and conversely sets up the collateral attack on the defendant’s hired expert.
2. THE CONSULTANT
If the treating physician or physicians refuse to testify, a consultant must be obtained. It is imperative that the plaintiff see the physician more than once. In a significant injury case the plaintiff should be directed to see the consultant on a regular basis.
3. LIFE CARE PLANNERS & ECONOMISTS
In catastrophic injury cases it is important to retain a life care planner who will determine the annualized costs of medical treatment required by the plaintiff. An economist will then be retained to project these costs into the future. The economist will also project future lost earnings.
4. VOCATIONAL EXPERT
In a significant injury case the plaintiff’s attorney should consider retaining a vocational expert to evaluate the effects of the injuries on the plaintiff’s future vocational capacity, employability and earning capacity.

DIRECT EXAMINATIONS OF PLAINTIFF’S EXPERT PHYSICIAN
1. The great Henry Miller has said "If cross-examination is the art of destruction, then direct is the art of construction. A good direct is a conversation". When the plaintiff’s physician is on the stand, plaintiff’s counsel should step back and allow the expert to speak to the jury, to educate them. The focus should be on the physician, not the attorney. The questions should be such as to allow the expert to fully explain the area of anatomy involved, the injury, the treatment and the effect of the injury upon the plaintiff’s life.
2. BASIC AREAS OF DIRECT

(a) THE EXPERT’S QUALIFICATIONS
Have the expert fully describe his professional background. Never accept a stipulation from the defendant as to the expert’s qualifications. You want the jury to hear the qualifications.
(b) How the physician came to treat the plaintiff. If the physician is a consultant you retained, bring that out on direct. For example, "Pursuant to my request did you on several occasions examine the plaintiff".
(c) Fee for Testimony
Don’t leave this for cross. People expect professionals to be paid. Bring this out and the fact that the physician has had to take time away from his practice to be in Court.
(d) Hospital and Medical Records
Go through these in detail with the physician. Don’t be a minimalist. Remember you are not only trying the case for the jury but making a record for the Appellate Division.
(e) Demonstrative Evidence
This is where the aforementioned medical illustrations, anatomical models, etc. come into play. Use them to have the physician educate the jury as to the parts of the body involved and the effects of the injuries thereon.
(f) Pain and Suffering
The physician must be extensively questioned as to the pain producing nature of the injuries. The nurses notes should also be utilized to confirm the pain suffered by the plaintiff as a result of the injuries.
(g) Proximate Cause and Permanency
Don’t forget these two mandatory questions. For Example:
Causation: Have physician assume facts of accident, then:
"I want you to assume the findings in the hospital record and your treatment as you just testified to, the findings in your office records maintained by you in the course of your professional practice and as testified to. Having all that in mind, Doctor, in your opinion, with a reasonable degree of medical certainty, was the accident of (date of accident), the competent producing cause of the injuries you have testified to?"
Permanency
"Now, Doctor, I want you to assume all of that which I just asked you about; also -- assuming all those facts and also that it’s now some years subsequent to this accident, and based upon your testimony of the treatment you gave to the plaintiff, based on numerous examinations and your office records, Doctor, in your opinion, with a reasonable degree of medical certainty are the conditions, injuries that you have described as being permanent, of a permanent and lasting nature that the plaintiff will suffer from for the rest of his days?"

VI. DIRECT OF THE PLAINTIFF
The goal is for the jury to like your plaintiff and for his/her story to sound credible. Recognize and deal with the particular areas of cross during your direct. Take care of the liability issues before discussing the injury. Ask direct questions regarding pain and suffering. Show the jury scars when appropriate but make sure not to overdo it.

VII. CROSS-EXAMINATION OF DEFENDANT’S EXPERT
(a) COLLATERAL ATTACK
The defendant’s expert will usually be an expert who has testified many times. It is incumbent upon the plaintiff’s attorney to have obtained all available information on the expert. A jury verdict search should be done in which all of the cases in which the expert has testified are obtained. The attorneys in those cases should be contacted in an attempt to obtain transcripts of his prior testimony for use as impeachment.
The following is an example of a basic collateral attack:
Q. Dr., you’re no stranger to the courtroom, are you.
A. That is true.
Q. You have been in the courtroom many times over the years?
A. True.
Q. You have been coming into Court well over 10 years now, true?
A. Yes.
Q. As I understand it, you now testify two to three times a month?
A. Approximately.
Q. Not including testifying, is it fair to say you examine about 25 plaintiffs a week on behalf of defendant’s law firms?
A. I examine about 25 people a week who are being sent to me by the defense for an evaluation.
Q. Now, these plaintiffs that you examine, such as the plaintiff, you don’t render any treatment to them, correct?
A. No.
Q. You examine them, and give defense attorneys a report?
A. True.
Q. Is it correct for these reports you charge $900.00?
A. Yes.
Q. Now, Doctor, is it fair to say you earn approximately $10,000.00 per week examining plaintiffs in lawsuits on behalf of defendant’s attorneys?
A. Yes.
Q. Now, is it fair to say, Doctor, for examining plaintiffs for defendant’s attorneys and also testifying in court, you make about $1,500,000.00 a year?
A. Yes.
Q. Now, Doctor, you mentioned you’re board certified, true?
A. True.
Q. Doctor, a physician goes to take the boards, there are two parts to those boards, yes or no?
A. Yes, there are.
A. There is written part, correct?
A. Yes.
Q. And there is an oral part?
A. Correct.
Q. You failed the board examinations a number of times?
A. Yes.

(b). IMPEACHMENT WITH PRIOR TESTIMONY
Should you be fortunate enough to have obtained prior testimony which is inconsistent with the defendant’s expert on a material issue, the prior testimony should be used to impeach the expert. Do not ask the expert if he recalls testifying in the case, rather ask him as follows:
Q. Doctor, you testified in the case of Jones v. Day, true?
A. I don’t recall.
Q. (Showing transcript) That is you, Dr. Smith, is it not?
A. Yes.
Q. You were retained by the plaintiff’s attorneys in that case, were you?
A. Yes.
Q. You testified at page 5 line 7 as follows, did you?
(Read pertinent questions and answers)
Q. Dr. that was your testimony at that time when you testified for the plaintiff, yes or no?
A. Yes.

(c) CROSS-EXAMINATION ON THE MERITS
If the plaintiff’s attorney has learned the medicine, there is no reason he should not have the confidence to attack the testimony of the defendant’s expert on the merits. The following is an example of a portion of a cross-exam of defendant’s orthopedic surgeon in a trimalleolar fracture case:
Q. Do you agree that a fracture as sustained by the plaintiff is a serious physical injury?
A. Yes.
Q. In fact, not only was the mortise disturbed, which is that pocket of bone made up by the lateral malleolus which is the end of the fibula, but also the medial malleolus, which is the distal end of the tibia, and the posterior malleolus, true?.
A. Yes.
Q. The talus fits into this cup, and that is what give the ankle stability?
A. That’s right.
Q. More than the knee that relies more on ligaments and tendons.
Q. Exactly.
Q. The problem with a trimalleolar fracture is that all those three bones anchoring the ankle are fractured?
A. That’s correct.
Q. As a result of that, the talus, which is that lump of bone that fits into it was dislocated?
A. That’s correct.
Q. The talus articulates or proximates the distal and or the far end of the tibial, is that correct?
A. Yes.
Q. Normally?
A. Yes.
Q. The problem with a dislocation, certainly a posterior dislocation of the talus, as we had here, is that it can have an impact on the articular surface of the tibia.
A. It certainly does.
Q. And the articular surfaces of bone, no matter what part of the body, is that smooth area of bone that allows an easy movement of one bone over the other, is that correct?
A. Yes.
Q. When the articular surface is displaced, we have the precursor of traumatic arthritis.
A. Yo may.
Q. In this case we do.
A. Yes.

VIII. SUMMATION
(a) It is important to speak with the jury about the nature of injury and pain and suffering and the devastating effects upon a person. People naturally do not like to dwell on another’s pain and it is difficult for them to understand how an injury and pain can deeply and permanently effect a person’s life. The plaintiff’s attorney must develop themes for communicating this to a jury. The late Moe Levine was famous for the "Whole-Man" theme which he used to great effect over the years. Whatever the theme chosen, it must feel confortable to the attorney. Once thought out, it may be used over and over again. The following are general themes which we have found useful in assisting a jury to understand the calamity which has befallen the plaintiff:

You know, there is no yardstick. There is no magical formula to measure the pain and suffering of another human being. It’s a fact, I think, well-known that all of us shy away from focusing on the pain of another person. And I think it’s very understandable. It’s almost a defense mechanism. It brings us, when we have to do that, closer with our own mortality and our own fears about this type of pain, ‘cause let’s face it, we all have that. We don’t focus on it. We couldn’t get by each day if we did. It’s difficult.
But in these last few minutes I am going to sit down soon and my role in this case is over. I am going to sit down soon and it will be up to you. Because the plaintiff can never, ever come back to court again. Ever. No matter what happens to him. He can never ever come back. And in these last few moments that are left to us it is our duty, it is your oath to focus on the pain and suffering that the plaintiff has endured and will continue to endure for the rest of his days.
* * *
It’s your decision, and it’s a grave responsibility, for your decision is it for the plaintiff. It’s up to you to make sure that he receives just compensation. What is pain? You know the law says that we can put a person to death. We can put a person to death who legally is convicted of certain crimes, but we cannot cause that person pain because the infliction of pain is cruel and unusual punishment.
* * *
Drug companies, as we know, make billions of dollars a year on pain medication. All you’ve got to do is walk into Duane Reade. We’ve all been there. Row after row after row of pain medications. Advil, Aspirin, Anacin, Motrin, you name it, to give relief for the slightest type of pain. Think about that. Pain is a condition, and pain is a condition of the type the plaintiff had which is not only debilitating, it’s terrifying, and the type of pain he suffered in that hospital is all encompassing. And the pain he will continue to suffer for the rest of his days is debilitating. He is a tough kid. He wants to work and he is. He is doing what he can do, but that pain will always be with him. A pain like this which is unremitting deprives someone of their God-given right to enjoy life. And the plaintiff was robbed, by the negligence of the defendant of his God-given right to the enjoyment of his life. It’s all of our rights. We take pleasure in things. There are certain things all of us do that we really take pleasure in. Recreational type of things. He can’t do them anymore. And he never will be able to do them. It’s taken away from him and it’s only in a courtroom such as this where we would even equate that type of pain with a sum of money. ‘Cause I’ll tell you something right now, the plaintiff would give every nickel he has, his last dime, if he could turn the clock back to prior to this accident. Give everything he had. So it’s only in a courtroom where we can even equate this type of pain with money. It’s been six years – and I am going to wrap it up. It’s been six years since this catastrophe. As I told you before, he can never ever come back into court again. This is it. It’s your responsibility.

(b) The jury should also be reminded at the end of the summation of their commitment to render a verdict based on the evidence and that it is their responsibility to render a just verdict. The following is one of many methods of doing so:

Back when we first met during jury selection – it seems we’ve been together a long time, and you’ll get rid of me soon, but it’s been a pleasure, really. But I asked each of you - and I tell you, I don’t ask questions for no reason - I asked each of you, should the evidence justify – and I told you it’s a tough question at that time, but now you know, now we’re all in the same position. I asked you, should the evidence justify, would you have any hesitancy in returning a substantial verdict for the plaintiff. And I recall all of you telling me, if the evidence justifies it, we can do it. And I submit to you, members of the jury, the evidence justifies nothing less. Verdicts aren’t large and verdicts aren’t small. Verdicts are either just or they are unjust. And a just verdict is a verdict based upon the evidence.
I’ve had the responsibility for this case for a good many years. As you all know -- it’s always hard to sit down – but shortly, his Honor is going to charge you on the law, and you’re going to retire to deliberate, and that responsibility will pass to you to render a verdict. A fair verdict, a just verdict based upon the evidence, a verdict of which you can say when you leave here we have done justice. For your verdict will stand for our time. This is it for the plaintiff. And on behalf of him, I thank you.

(c) Countering the defendant’s plea not to be guided by sympathy:
The defendants have said to you don’t let sympathy guide you, be harsh, be cold. I say to you, be just. Use your common sense, your sound judgment, your understanding and comprehension as to what these defendants have caused and render a just verdict.

An excellent compendium on asking the jury for damages is "Asking the Jury for Money: How and When to Lay the Foundation". Harvey Weitz, Esq., New York State Trial Lawyers Institute, 132 Nassau Street, New York, NY 10038

CONCLUSION
This article is meant to be an outline of important areas in presenting damages on behalf of the plaintiff. To successfully try plaintiff’s cases and effectively present damages, a complete mastery of a file thoroughly prepared is required.

By Anthony H. Gair, Gair Gair Conason Steigman & Mackauf

The popliteal artery is the major source of blood supply to the lower leg. The femoral artery becomes the popliteal artery as it passes through the hiatus of the adductor magnus muscle and enters the popliteal fossa. It generally ends at the inferior border of the popliteus muscle where it divides into the anterior and posterior tibial arteries. It lies directly behind the posterior horn of the lateral meniscus.1 Injuries to the popliteal artery during anterior cruciate ligament reconstruction or arthroscopic meniscectomy are extremely rare.2 The popliteal artery is closely related to the posterior capsule of the knee joint, being separated from it only by a small amount of fat. The artery also kinks forward when the knee is flexed, placing it close to the posterior horn of the medial meniscus. It is thus imperative that surgery in the posterior aspects of the knee is performed under direct visualization. If an arterial injury is suspected following surgery of the knee an opinion from a vascular surgeon should be sought urgently.

As a New York medical malpractice attorney we understand the delayed recognition of a popliteal artery lesion is a major cause of amputation of the affected extremity. Further, true spasm of the popliteal artery is rare. It is thus dangerous to diagnose arterial spasms since in reality thrombosis is usually present. It is further, axiomatic that the absence of pulses in an extremity is due to arterial injury until proven otherwise. Additionally, compartment syndrome may accompany vascular injury secondary to prolonged ischemia, venous injury or partial laceration to the artery with bleeding into the compartments.

The following case involved a young woman who was diagnosed with a tear of the anterior cruciate ligament and of the posterior horn of the medial meniscus of the right knee. Subsequently, the orthopedic surgeon performed arthroscopic assisted surgery for the repair of the ACL and partial medial meniscectomy. On the afternoon following surgery the patient complained of pain behind the knee and decreased sensation in the foot. The foot was noted to be swollen. On post-op day one swelling to the right thigh and foot was noted as persisting. On post-op day two she complained of pain behind the knee and swelling. The leg and foot were edematous, there was no sensation of the toes and an inability to move the toes or foot was noted. The skin was colorless with some mottling at the foot. The surgeon was called and changed her pain medication to percocet. On post-op day three the surgeon was again called and examined the patient. Despite the above symptoms indicative of vascular injury, together with the presence of foot drop, he did not request a vascular consultation. He sent her to the emergency room for an ultrasound to rule out a deep venous thrombosis. The popliteal artery was not studied. The compartment pressures were measured and compartment syndrome ruled out as a cause of the patient’s symptoms, as was deep venous thrombosis. On post-op day four, the patient continued with complaints of severe pain behind her knee. The surgeon was once again called and met the patient at the emergency room. Compartment pressures were measured and were elevated in the anterior compartment only. A fasciotomy was performed at which time the muscles of all compartments were noted to be viable and should have indicated to the surgeon the elevated pressures in the anterior compartment could not have been present for more than eight hours and hence did not explain the patient’s prior symptoms. The post-anesthesia care record noted the right foot to be cold, blanched and mottled at the ball of the foot with decreased movement. A pulse of the right foot was not palpable or obtainable with doppler. Nurses notes for post-op day five noted the toes of the right foot to be cold to touch and non-mobile. No pedal pulses were noted. The knee, calf and foot were edematous. The patient complained of swelling and burning of the leg. A vascular consultation was finally obtained on post-op day six. An angiogram was performed which demonstrated a 2cm pseudoaneurysm of the mid popliteal artery with occlusion just distal to the pseudoaneurysm. Surgery was immediately performed for repair of the artery. However, as a result of prolonged ischemia and resulting necrosis, the patient’s right leg was required to be amputated below the knee.

Plaintiff claimed several departures from proper practice. First was the iatrogenic injury to the popliteal artery at the time of the initial surgery. Secondly, and most glaring, was plaintiff’s claim as to the failure to obtain a vascular consult between the time of the ACL repair and post-op day six despite obvious signs of vascular compromise. It was claimed that had a prompt vascular consult been obtained the arterial injury would have been diagnosed and the leg saved by prompt repair by the vascular surgeon.

It was anticipated, as a result of review of the surgeon’s records, that it would be claimed that this was an unusual presentation, that the symptoms were more likely caused by arterial spasm and/or compartment syndrome and thus the failure to obtain a vascular consult was not negligence. Hence, a good portion of the defendant’s deposition was directed at eliminating these claims as valid defenses.
The surgeon was first questioned as to whether the injury occurred at the time of surgery:

"Q. In your opinion, with a reasonable degree of medical probability, did the patient’s popliteal artery sustain some type of injury during the surgery that you performed?
A. It may have.
Q. Do you believe that the popliteal artery may have been injured prior to your surgery?
A. Not that I am aware of."
* * *
"Q. Doctor, her blood work before surgery was normal, correct?
A. Yes.
Q. Her clotting factors were all normal, and we went over that.
A. Yes.
Q. The MRI, the cuts that showed the popliteal artery, other than the anatomical position that you mentioned, show no abnormality; is that correct?
A. None that I detected.
Q. No vascular compromise?
A. It wasn’t a full vascular study, but, no, it didn’t show any.
Q. And it showed no popliteal cysts; is that correct?
A. Correct."
* * *
Q. Certainly, you did not diagnose such an injury before the surgery you performed?
A. Correct.
The surgeon was thereafter questioned with regard to his examination of the patient on post-op day three at which time she displayed as stated above, obvious signs of vascular compromise.
"Q. With regard to physical examination, it says, physical examination, right leg, and you dictated, there is deformity in terms of soft tissue swelling.
The compartments are full in the leg but they are compressible and not tense. She has no active extension to the toes and ankle, though sensation is intact. When dependent her foot reddens nicely and has nice refill. When she is supine, it starts to blanch and becomes mild and the refill is sluggish.
She is two plus, two plus dorsalis pedis pulses, and then you wrote in, with dependency.
Q. And then you wrote in wound is well healed?
A. Right."
* * *
"Q. When you wrote in this note or when you dictated in this note that there was no active extension to the toes and ankle, you mean she couldn’t move her foot?
A. Yes.
Q. What was the significance of the fact that when the patient was supine her right foot starts to blanch?
A. That the blood was not circulating distally when she was not with gravity.
Q. By blanching, you mean it became whiter or pale?
A. Yes.
Q. In layman’s terms, she wasn’t getting proper blood supply to the foot, true?
A. In that position, the blood supply was compromised.
Q. Under physical examination, the second to last full sentence, where you dictated when she is supine it starts to blanch and becomes mild and the refill is sluggish, what do you mean by mild?
A. I think it was a typo. It is supposed to be mottled and I didn’t check it.
Q. Mottling, under these circumstances, is also an indication of a diminution in the blood supply to the effected area, true?
A. Yes, it can be from that.
Q. So, can we agree that based upon the findings of your physical examination something was causing a compromise of the blood supply to the foot?
A. That is what I was concerned about.
Q. So, the answer is yes, correct?
A. Correct."
* * *
"Q. Would you agree that the findings of swelling of the leg and foot, no active extension of the toes and ankle, blanching of the foot and sluggish capillary refill indicate a vascular injury?
A. It could happen from compartment syndrome also.
Q. So, would you agree that the findings of swelling of the leg and foot, no active extension of the toes and ankle, blanching of the foot and sluggish capillary refill indicate vascular compromise?
A. Yes.
Q. Just so I am clear on this, when we refer to vascular compromise, we are referring to an inadequate blood supply to the effected area?
A. Yes.
Q. Doctor, is it fair to say that you considered some type of vascular problem as a cause of the positive findings you made?
A. I considered as a secondary effect, I thought, and I mention it in here, I thought it was more likely compartment pressure from fluid extravasation causing the problem.
Q. When you say compartment syndrome, it does cause a vascular problem, correct, as a result of increased pressures and ischemia occurs, correct?
A. Yes, as a secondary effect.
* * *
"Q. Doctor, when you asked them to rule out deep venous thrombosis, you were referring to a clot in a vein; yes or no?
A. To rule out a DVT, yes, that is what you are trying to do.
Q. When you told us before that people can develop blood clots following surgery, what you were referring to is a venous blood clot, a blood clot in a vein; yes or no?
A. Yes.
Q. Did you at this point in time consider obtaining a consult with a vascular surgeon?
A. No, I did not.
Q. Why not?
A. My working diagnosis was primarily compartment syndrome or development thereof.
Q. Did you consider ordering an angiogram?
A. At that point, no.
Q. You also note in your plan that you were going to get compartment pressures there and that was because you were concerned about either compartment syndrome or that she was developing compartment syndrome, true?
A. Yes."
The surgeon was next forced to admit, that whatever the cause, the patient was obviously suffering from vascular compromise which was an emergent situation:
"Q. When you wrote that you thought that there was a spasm of the artery, what artery were you referring to?
A. Well, primarily, I was thinking of the popliteal artery."
* * *
"Q. How would spasm of the artery cause a lack of active flexion of the toes and ankle?
A. I feel, if it persisted long enough to interrupt the blood supply to the foot, they would have less ability to function.
Q. So, it must have been present for a while?
A. Yes, I would say it could have been present for a while."
* * *
"Q. So, according to you, it was your opinion or thought process that this was being caused by a spasm of the artery and therefore a compromise to the lower leg and foot?
A. At this point in time I wasn’t 100 percent sure what was causing it. I was worried about a fluid compression causing it, possible vasospasm, compartment syndrome.
Q. Whatever the cause, you knew she wasn’t getting enough blood to the lower leg and foot, true?
A. I knew she was having problem with the blood supply specifically when she was supine, as I say in my exam.
Q. Doctor, the finding that she had no active flexion of the toes and ankle, is that an indication that she was suffering a significant compromise of the blood supply to her lower leg and foot; yes or no?
A. Yes, it does mean that.
Q. And if that blood supply is compromised long enough, ischemia results, correct?
A. Yes.
Q. Eventually, the muscles of the lower leg and the nerves and the muscles of the foot, they are going to die? They are going to necrose, true?
A. They could, yes.
Q. They will if it is unrelieved? It is not that they could --
A. If it is completely unrelieved, if the pressure is completely unrelieved, if it is not successful, yes, they will die.
Q. In point of fact, when one is dealing with compartment syndrome, if elevated compartment pressures are allowed to exist for more than eight hours, the result -- and when I say persist for more than eight hours until decompressive surgery is performed -- the result will be some loss of function, true?
A. Most of the time, yes. I am not saying it is 100 percent, but yes.
Q. So, this was an emergent situation, true?
A. It was clearly an urgent situation.
Q. Something had to be done to relieve this impairment of the blood supply to this young lady’s lower leg and foot, true or not true?
A. I think something had to be done to change her condition, whatever that might be.
Q. And you knew at the time that there was some type of vascular problem here, whether secondary to compartment syndrome or to a vasospasm of the artery, she was having a vascular problem, true?
A. At this point in time she was having a compromise to he blood supply to the leg.
Q. Which is the vascular system?
A. Right."
The physician then admitted that vasospasm absent other arterial injury is rare. He further admitted that prompt diagnosis of an arterial injury is crucial in order to salvage the affected extremity.
"Q. Doctor, would you agree that a true spasm of the popliteal artery without other injury to the artery seldom occurs?
A. It is not a usual finding."
* * *
"Q. Would you agree that delayed recognition of a popliteal artery lesion is known to be a major cause of limb loss?
A. Yes.
Q. Because we agree, do we, that time is of the essence when dealing with an injury to the popliteal artery?
A. Dealing with any arterial injury, yes."
The Doctor was next asked to explain what he thought was causing the patient’s problems since he was able to rule out compartment syndrome and deep venous thrombosis and also why he still did not order a vascular consult:
"Q. You measured the compartment pressures?
A. Yes."
* * *
"Q. Going over these figures, is it fair to say that the pressure in the anterior compartment was normal?
A. Yes.
Q. And the pressure in the lateral compartment was normal?
A. Yes.
Q. And the pressure in the deep posterior compartment was normal?
A. Yes.
Q. And the pressure in the superficial posterior compartment was either normal or slightly elevated?
Q. Yes, it was elevated.
Q. Slightly?
A. Yes.
A. In fact, based upon the recorded pressures, you ruled out compartment syndrome, true?
A. At that point I didn’t feel she had compartment syndrome, though she was fairly swollen.
Q. It says compartment syndrome ruled out. That is your writing?
A. Yes.
Q. So, you ruled it out at that time based upon the pressures you took?
A. Yes.
Q. And you also ruled out deep venous thrombosis?
A. Yes.
Q. There’s a triage note by a nurse that says patient to E.R. by wheelchair with complaint of swollen right leg and discoloration of right foot. It goes on to say, right leg swollen, blanched from ankle to toes?
A. Yes.
Q. And she had leg and foot pain, correct; that is, according to the first page of the record.
A. Yes.
Q. And according to your findings she had no active extension of the toes or ankle, correct?
A. Correct.
Q. And she had diminished capillary refill?
A. Yes.
Q. And you had ruled out deep venous thrombosis, correct?
A. Yes.
Q. And you had ruled out compartment syndrome, true?
A. Yes.
Q. So, what did you think was causing the vascular compromise and these resulting problems?
A. Well, at this point I basically attributed it to spasm from the arteries just within the leg without being overt compartment syndrome because the pressures weren’t high enough. That was my working diagnosis then.
Q. Just so I am clear, you thought that the popliteal artery was in some type of spasm which involuntarily contracted resulting in a diminution of blood supply to the lower leg, true?
A. More or less that is what I was working on."
* * *
"Q. Did you at this point in time, having ruled out compartment syndrome and having ruled out deep venous thrombosis, consider obtaining a vascular consult?
A. I didn’t.
Q. Why not?
A. Basically, for the same reasons I had mentioned before. I was hopeful with edema control the situation would resolve itself."
* * *
"Q. Prior to your discharging the patient from the emergency room, did you consider that the findings of swelling of the right leg, blanching of the leg from ankle to toes, the lack of active extension of the toes or ankle and pain of the leg and foot might be caused by ischemia as a result of injury to the popliteal artery?
A. That was not a primary diagnosis of mine.
Q. I didn’t ask you whether it was a primary diagnosis. I asked you whether you considered it.
A. At that point I wasn’t considering it.
Q. Why was that?
A. Because of the length of time from the surgery, I felt, if she had an arterial injury, it would have presented a lot sooner than 72 hours later, or whatever the time frame was at that point in time, and that was the main reason why.
Q. That was a thought process that went through your mind at that time?
A. Well, piecing everything else together that I knew, yes.
Q. In thinking about that and thinking about in your mind that you would have assumed that an arterial injury would have manifested itself somehow differently at an earlier point in time, did you think, as you were thinking about that, about getting a vascular consult?
A. I did not at that point in time.
Q. Do you think you should have?
A. Knowing what the end result was now?
Q. Yes.
A. Of course."
Finally, the Doctor was confronted with the findings on fasciotomy which unequivocally eliminated compartment syndrome as a cause of the patient’s symptoms and mandated a vascular consult:
"Q. The surgery that you performed according to this was a four compartment fasciotomy of the right leg?
A. Correct."
* * *
"Q. Would you agree that based upon these findings with regard to the muscles in the anterior compartment, the pressures within that compartment had to have been elevated for a period of less than eight hours?
A. It is hard to say, but I was surprised that the muscles looked in good condition at that point in time?
Q. Why?
A. Because my thought process was that this was probably going on since the day before and I didn’t know what the muscles would look like, quite honestly, when I went in there.
Q. The fact is this: If the patient had the elevated compartment pressures within the anterior compartment for a period of more than eight hours, wouldn’t you have expected to find a loss of contractility of the muscles together with at least some discoloration?
A. Yes, you would think that would have happened.
Q. And the findings that you made of good contractility, color and consistency of the muscles indicates that she couldn’t have been suffering from compartment syndrome for over eight hours, true?
A. Basically, I agree with that."
* * *
"Q. Based upon these findings that you made with regard to the muscules within the compartments, is it fair to say that compartment syndrome was not causing the loss of movement of her ankle and foot?
A. The compartment syndrome directly was not the cause of it."
The inexcusable failure of the surgeon to obtain a vascular consult despite his admission that the patient was suffering from a vascular compromise was irrefutable following his deposition. Once again, this demonstrates the detailed knowledge the plaintiff’s attorney must acquire about the area of medicine involved in order to conduct a meaningful deposition of the defendant physician.

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