New York Personal Injury Attorneys Blog

Uninsured Motorist Coverage/Supplemental Underinsured Motorist Coverage

A. When and How It Applies:

1. Uninsured Motorist Coverage (UM) - Insurance Law Section 3420(f)(1) - is mandatory in New York State which makes certain that the minimum bodily insurance coverage mandated by law is available to those involved in an accident with an uninsured vehicle.

2. Under Insured Motorist Coverage (technically called supplementary uninsured/under insured motorist coverage or SUM) - Insurance Law Section 3420(f)(2) - is optional coverage which provides an insured person up to the level of coverage that was purchased over the minimum.

3. Difference between UM and SUM coverage:UM - An "uninsured vehicle" includes a vehicle that is not covered by an insurance policy and it includes vehicles for which neither the owner nor the driver can be identified (including hit and run driver).SUM - An "under insured" vehicle normally means that the amount of insurance on the other vehicle is less than that on the insured’s vehicle. However, it can also mean that, due to payments made under that policy, the amount of coverage remaining is less than the coverage on the insured vehicle or the insurer on the other vehicle denies coverage or becomes insolvent - these are not the typical scenarios.

Rafellini v. State Farm, 9 N.Y.3rd 196 (Ct. App. 2007). The importance of this case cannot be overstated. Originally, in this case, the Second Department held that the No-Fault "serious injury" threshold does not apply to Underinsurance claims (SUM) although it did apply to Uninsured Motorist claims (UM). The Court of Appeals reversed and held that a claimant applying for SUM benefits would be subject to the No-Fault "serious injury" threshold and the defendant insurer could raise this as a defense to a SUM claim. Thus, any claimant applying for UM or SUM coverage must have a "serious injury" within the meaning of the No-Fault law and the legion of case law in that area.

LOSS OF VISION FOLLOWING BLEPHAROPLASTY AS A RESULT OF ORBITAL HEMORRHAGE

Blepharoplasty basically is surgery in which excess tissue is removed from the eyelids. It is the most commonly performed cosmetic surgery of the face. Upper eyelid surgery is usually performed for removal of excess skin, muscle and fat and lower lid surgery for the removal of fat pads, so called baggy eyelids caused by herniation of periorbital fat.

The most serious complication of blepharoplasty is partial or complete loss of vision, most commonly as a result of intra-orbital hemorrhage. A widely accepted theory suggests orbital bleeding increases intraorbital and intraocular pressure, compromises the ocular circulation, and results in ischemic or optic nerve damage. Ischemic optic neuropathy and central artery occulsion are believed to be the most common final events in most cases of blindness after blepharoplasty. (Lowry JC, Bartley GB: Complications of Blepharoplasty. Surv. Ophthalmol 38:327-350, 1994).

To prevail in a civil rights action under 42 USC §1983, plaintiff must establish that defendants deprived decedent of a right secured by the constitution or laws of the United States and that such deprivation was committed by person(s) acting under color of state law (see, Spell v. McDaniel, 591 F.Supp. 1090 [1984]). Officially promulgated ordinances, regulations and departmental directives give rise to municipal liability under section 1983 if such policies and decisions lead to a deprivation of constitutional rights (Id.). Municipalities are liable under section 1983 for de facto policies or practices which engender constitutional deprivation; informal actions, if they reflect general policy, custom, practice or pattern of official conduct which even tacitly encourage conduct depriving individuals of their constitutional rights, satisfies section 1983 standards (Id.).

Legal Standard For Discovery
Federal, and not State law, governs questions of discoverability, confidentiality and privilege in federal civil rights actions (see, King v. Conde, 121 F.R.D. 180 [EDNY 1988]; Fed. R. Civ. P. 26[b][1]). Under Rule 26 (b)(1) of the Federal Rules of Civil Procedure, any information that is not privileged is discoverable if it is relevant to the action or reasonably calculated to lead to the discovery of admissible evidence.

A privilege log in which a defendant simply asserts the privileges of law enforcement, deliberative process, attorney-client and work-product, contarvenes well established law concerning the proper procedure for, and burden of, demonstrating the applicability of the privileges, both generally and specifically. Accordingly, this type of privilege log is insufficient on its face and the indiscriminate claim of privilege may in itself be sufficient reason to deny it (see, e.g., Torres v. Kuzniasz, 936 F.Supp. 1201 [DCNJ 1996]). See also; National Congress for Puerto Rican Rights Case (194 F.R.D. 88 [SDNY 2000].

It is black-letter law in the Second Circuit that the burden is on the party claiming the protection of a privilege to establish those facts that are essential elements of the privileged relationship; this burden requires an evidentiary showing by competent evidence (see, Thompson v. Lynbrook Police Dept., 172 F.R.D. 23 [EDNY 1997]; Thompson v. Keane, 95 Civ. 2442 [SDNY 1996]; Svaigsen v. City of New York, 203 A.D.2d 32, 609 N.Y.S.2d 894 [1st Dept. 1994]; King v. Conde, supra). The party’s showing must detail the reasons for non-disclosure with sufficient particularity; a bald assertion of privilege is insufficient (Id.; see, Svaigsen v. City of New York, supra; King v. Conde, supra; Cornell Univ. v. City of New York Police Dept., 153 A.D.2d 515, 544 N.Y.S.2d 356 [1st Dept. 1989]). Otherwise, the court has no choice but to order disclosure (Thompson v. Lynbrook Police Dept., supra).

In a New York wrongful death action plaintiffs’ have a cognizable action for damages for the loss of enjoyment of life in a cause of action predicated upon 42 U.S.C. §1983 and concomitant Constitutional violations.

Resolution of whether plaintiffs have a viable action pursuant to 42 U.S.C. §1983 turns on whether the applicable state statute is inconsistent with the Constitution and laws of the United States; Robinson v. Wegman, 436 U.S. 584, 98 S. Ct. 1991 (1978) citing 42 U.S.C. §1988.

By way of introduction, it is an undeniable fact that New York’s wrongful death law is a creature of our all too unfair and prejudicial past enacted some fifty years before Branch Rickey permitted, in 1947, a young African-American baseball player to don the uniform of the Brooklyn Dodgers. Sadly, although both Rickey and Robinson are part of our history, New York’s antiquated wrongful death law lives on. This law cannot be allowed to cast its unconstitutional pall on the life and death of a person unjustifiably killed by Law Enforcement Officers in New York since New York's Wrongful Death Law is clearly inconsistent with the purposes of the Federal Civil Rights Laws. Simply put, the usual cry of “there’s no pecuniary loss” is an echo in the darkness in a Civil Rights case and should dutifully be treated as such, since it must be shed in the same manner that the discriminatory “color-barrier” was shed in baseball sixty years ago, and similar antiquated laws have been cast aside by the courts via action predicated upon §1983.

In Jaco v. Bloechle, et. al., 739 F.2d 239 (6th Circ., 1984) the 6th Circuit Court of Appeals followed the reasoning of the Supreme Court in Robertson in reversing the dismissal of plaintiff’s §1983 complaint.

In Jaco plaintiff’s son was shot and instantly killed by police officers. Among the actions brought by plaintiff alleging violation of decedent’s civil rights were claims predicated upon violations of the decedent’s Constitutional rights and 42 U.S.C. §1983. The plaintiff sought compensation under the state wrongful death statute.

The appeal ensued when the District Court held that decedent’s civil rights cause of action did not survive his death and thus granted defendant’s Motion to Dismiss.

In analyzing the laws of the State of Ohio, the 6th Circuit concluded that said laws would preclude decedent’s personal section 1983 claim.

However, that did not end the 6th Circuit’s analysis. The Court then analyzed the mandate of the United States Supreme Court set forth in Robinson which stated “...it identified two policies underlying §1983 which must be analyzed before a Federal Court can, not withstanding abatement under the stricture of state law, declare the necessity for a survival of a civil rights claim thus, effectively creating a ‘Federal common law survival of actions rule. Specifically, Courts are instructed to gauge the impact of abatement upon the goal of compensating those injured’ and ‘§1983's role in preventing and deterring official illegality’.”

Then the 6th Circuit Court of Appeals held:

" [I]n the case at bar strict adherence to the relevant state law eviscerates the civil rights claim. Under Ohio’s survival statute, this decedent’s civil rights cause of action would have survived if his death had not been instantaneous; in light of the sweeping language of the enactment, to suggest that the Congress had intended that a civil rights infringement be cognizable only when the victim encounters pain and suffering before his demise, is absurd. The §1983 objective of protecting individual civil liberties by providing compensation to the victim for an illegal deprivation of Constitutional entitlements by state officers cannot be advanced, and is only undermined by deferring to a state law which decrees abatement under circumstances where, as here, asserted Constitutional infringements resulting from action taken under color of state law caused instant death. Surely, §1983's further purpose to discourage official Constitutional infringement would be threatened if Jaco were not permitted to champion her deceased son’s civil rights. Ohio’s survivorship law is then hostile to ‘the Constitution and laws of the United States’. To afford effect to the expressions and directions of the Supreme court in Robertson v. Wegman, where, as here, the survival statute of the forum state are hostile to promoting deterrence, protection and vindication against §1983 civil rights infringements, perpetrated under color of law, the Federal Court must implant the Congressional intent by allowing survival”.

Thereafter, following numerous other cases, the Court in Banks v. Yokemick, 177 F. Supp.2d 239 (Southern District of New York, 2001), in a well-reasoned opinion by Hon. Victor Marrero, held:

“Based on the reasoning and precedent of the authorities, the Court finds that insofar as New York’s survivorship of claims statute would bar recovery of the damages that the jury awarded for Bank’s loss of enjoyment of life, the state law fails to take into account policies analogous to the goals expressed in §1983. See Burnett, 468 U.S. at 68. Weighing the state statute against Federal Rules fashioned by the Courts in assessing comparable §1983 claims, this Court is persuaded that the Federal Rules better serve the policies expressed in §1983. See Robertson, 436 U.S. at 590; Moor, 411 U.S. at 703. On this basis, the Court concludes that §1988 does not compel application of state law in the instant case. See Burnett, 468 U.S. at 47-48. Accordingly, the Court denies Yokemick’s motion for judgment as a matter of law in this regard and sustains the jury’s corresponding verdict awarding Banks damages for loss of enjoyment of life.”

In reaching its Decision the Court made the most telling of statements:

“The case law affirms the obvious. A result that would recognize damages for infliction of severe pain and suffering short of death but extinguish the cause of action at the moment the victim expires is inherently illogical and incompatible with the deterrent purposes of §1983. In essence, it would import into §1983 a peculiar form of economics with a macabre cost-benefit analysis. In an odd way, this calculus would discourage half-measures, enabling violators of life to draw a bounty from the saving grace of death. A defendant would be rendered liable to the injured person who suffers a punch or a slap, but not for the victim’s instant death, a mere maiming would be fully recompensed, but not a slaying. Thus, the rule would tell offenders that, having already dealt grievous blows, it pays to dispatch the victim with a self-serving act of homicide in order to realize economics on their potential civil liability.”

Other Courts throughout the country have similarly echoed such a pronouncement. See also: Berry v. City of Muskogee, 900 F.2d 1489 (10th Circ. 1990) “We are satisfied that Congress intended significant recompense when a Constitutional violation caused the death of a victim. The general legislative history of the 1871 act makes clear that death was among the civil rights violations that congress intended to remedy.” The Court held the Oklahoma survival action to be deficient in both its remedy and deterrent effect.; Bass v. Wallenstein, et. al., 769 S.2d 1173 (7th Circ. 1985). “The proper approach at this point is not to transform the Section 1983 Action on behalf of Bass into a wrongful death action on behalf of those who survived him, but to determine whether state law is inconsistent with the compensatory and deterrent policies underlying Section 1983. This Court recently performed this analysis in Bell with results that pertain here. We held that where the Constitutional deprivation sought to be remedied has caused death, state law that precludes recovery on behalf of the victims estate for the loss of life is inconsistent with the deterrent policy of Section 1983.”; Bell v. City of Milwaukee, et. al., (7th Circ. 1984). (“In sum, we hold that Wis. Stat. §§895.01 and 895.04, along with Wisconsin Decisions construing those provisions, which would preclude recovery to Daniel Bell’s estate for loss of life, are inconsistent with the policy of Section 1983 (at 42). The Wisconsin law therefore cannot be applied to preclude the $100,000.00 damages recovered by Daniel Bell’s estate for loss of life.)” Roman v. City of Richmond, et. al., 570 F. Supp 1554 (North. Dist. Calif. 1983) (rejecting state law because it did not provide damages for deterrence where a deprivation of life has occurred, deterrence being an essential purpose of §1983 and thus implicitly supporting a charge for damages for loss of enjoyment of life.)

It is thus clear that a jury should be permitted to award damages pursuant to 42 U.S.C. §1983 for the loss of life and concomitant deprivation of a decedent's constitutional rights irrespective of New York’s limited wrongful death law.

In an injury or death resulting from the defective design of a product, the claim is that the product functioned as it was designed but the design was negligent. That is a reasonable manufacturer should have known that the design of the product was defective, that it was foreseeable that the design could cause injury or death to the user of the product. Once a hazard, which is a condition that may cause injury or death, is identified in a product, the design engineer must follow an accepted design priority recognized by all design engineers in reducing the possibility of the dangerous condition of the product causing injury or death.

1. The dangerous condition must be designed out of the product if such can be done without destroying the utility of the product. If this can't be done then:

2. The dangerous condition of the product must be guarded against. If the dangerous condition of the product can't be guarded against then:

3. A warning must be given that the dangerous condition of the product can cause injury or death.

In the United States, the claims most commonly associated with product liability are negligence, strict liability, breach of warranty, and various consumer protection claims. The majority of product liability laws are determined at the state level and vary widely from state to state. Each type of product liability claim requires different elements to be proven to present a successful claim.

The New York Product Liability Lawyers at Gair, Gair, Conason, Steigman & Mackauf have more than 40 years of experience representing victims injured or killed by the defective design of a product.

From amnewyork By David Freedlander;

Twenty of the city's high-rise crane returned to operation last week, but many of them are on construction sites that have received dozens of complaints and violations for unsafe working conditions.

The complaints range from the mundane to the alarming, but in the light of two deadly crane collapses this spring, both of which occurred on construction sites with a history of violations, some say any infraction raises red flags.

"Any site that is operating a high-rise crane with too many violations should be shut down and the individuals hauled off to jail," said Councilman Tony Avella, (D-Bayside). "How stupid are we that we allow this to go on?" Read More

The New York Construction Accident Lawyers at Gair, Gair, Conason, Steigman and Mackauf have years of experience representing victims of crane accidents and construction accidents in New York.

Our Senior Partner Robert Conason and our Partner Rhonda Kay are contributing authors of Warren's Negligence in the New York Courts, Second Edition.

Warren’s Negligence in the New York Courts has been a trusted authority for negligence attorneys practicing in New York for more than 60 years. It is one of the most thorough New York-specific treatises covering the key legal aspects of New York negligence law and important procedural matters for both plaintiff and defense attorneys.

FAILURE TO PROPERLY TREAT EXTRAVASATION OF DOXORUBICIN (Adriamycin)
By: Anthony H. Gair;

The extravasation of intravenously administered chemotherapeutic agents into the subcutaneous tissue of cancer patients undergoing chemotherapy is a known risk of treatment. The potential gravity of injury caused by extravasation is dependent upon the type of drug which extravasates. The most destructive extravasation injuries are those caused by anti-tumor drugs which bind to deoxyribonucleic acid (DNA), such as Doxorubicin, (Adriamycin) which has been a primary part of chemotherapeutic regimes since the late 1960's. Extravasation of chemotherapeutic agents which bind to nucleic acids can lead to a prolonged course of injury. The most clinical experience has been derived from the extravasation of Doxorubicin. Rudolph, R, Larson, D. Etiology and Treatment of Chemotherapeutic Agent Extravasation Injuries: A Review. J. Clin. Oncol, 1987; 5:1116-1126. Doxorubicin causes severe progressive tissue necrosis that may involve muscles and tendons. Since no specific antidote has been developed, the recommended treatment of Doxorubicin extravasation is early excission of all infiltrated tissue. Dahlstrom, KK, Chenoufi, HL, Daujard, S. Fluorescene microscopic demonstration and demarcation of Doxorubicin extravasation. Experimental and Clinical studies. Cancer, 1990 Apr. 15; 65(8): 1722-1726.

It has been postulated that infiltration of Hyaluronidase, which may serve to dilute the extravasated Doxorubicin, will decrease the amount of ulceration caused by the extravasation. Disa JJ, Chang RR, Mucci JJ, Goldberg N.H., Prevention of Adriamycin-induced full-thickness skin loss using hyaluronidase infiltration. Plast. Reconstr. Surg. 1998 Feb., 101(2):370-374. In this regard the injection of saline solution at the site of extravasation of a vesicant (blistering) chemo-therapeutic agent in order to reduce the concentration of the extravasated drug has been reported to have been effective. Scuderini, Onesti MG, Anti-tumor agents: Extravasation, Management and Surgical Treatment. Am. Plast. Surg. 1994 Jan; 32(1):39-44. However, other authors have emphatically stated not to inject saline, sodium bicarbonate or hyaluronidase into the extravasation area as to do so may increase the diffusion of the extravasated agent into surrounding tissue. Hankin FM, Louis DS, Extravasation of Chemotherapeutic Agents. Am. Fam. Phys. 1985 March; 31(3)147-150.

For some time the injection of steroids into the subcutaneous tissue at the site of Doxorubicin extravasation was recommended on the theory that steroids would reduce inflammation. However, it has been demonstrated that inflammatory cells are uncommon in tissue damaged by Doxorubicin extravasation. Rudolph R, Stein RS, Patillo R: Skin Ulcers Due to Adriamycin. Cancer 38:1087-1094, 1976; Larson DL: What is the appropriate treatment of tissue extravasation by anti-tumor agents? Plast Reconstr Surg 75:397-405, 1985. In 1996 the package insert for Adriamycin was changed. Prior thereto, the injection of steroids was recommended in the event of extravasation. In 1996 it was stated that the benefit of local administration of drugs has not been clearly established. Close observation and plastic surgery consultation were recommended. The immediate treatment of DNA-binding chemotherapy extravasation should include elevation of the effected extremity and intermittent cold. There does not seem to be any agent that, injected locally, can alter the final result from extravasation of any binding chemotherapeutic agent. Persistent swelling, erythema and pain are indications for surgical consultation, even if ulceration is not yet apparent. Such consultation is mandatory when blistering and ulceration are first seen. Rudolph and Larson, supra. Snyderman RK, Krasna MJ, Adriamycin extravasation injuries. Plast Reconstr Surg 1986 Apr; 77(4):683-684.

The following case involved a patient being treated for Non-Hodgkins Lymphoma with, among other chemotherapeutic agents, Doxorubicin. During his second round of chemotherapy, the treating oncologist administered 60mg of Doxorubicin by I.V. push via a free flowing intravenous line. The infusion site was the right upper anterior arm just above the elbow. Fifteen minutes following the infusion the "chemo line" was noted to be red and swollen. Ninety minutes later, pursuant to order of the oncologist, Hydrocortisone, 100mgs was instilled subcutaneously. Hydrocortisone ointment was also topically applied. Two days thereafter, swelling and redness of the right arm was noted to be increased. The patient complained of increased swelling and redness in the right arm. The oncologist ordered topical application of Hydrocortisone cream four times a day. The patient was discharged from the hospital five days post extravasation with the right arm still swollen and hard, to be followed on an out-patient basis by his oncologist. The patient was, 3 ½ weeks later, noted to have a still swollen right arm with a necrotic area. Two weeks thereafter, he was admitted to the hospital with a fever of 103E, a swollen and erythematous right arm with a large necrotic area with dry eschars. The patient thereafter required numerous surgical debridements of the right arm as well as a fasciotomy, repair of a pseudoaneurism of the brachial artery and extensive skin grafting. The patient was left with significant atrophy of the right arm, a 90E extension contracture at the right elbow and significant restriction of motion of the wrist, hand and fingers.

The plaintiff alleged that the oncologist failed to recognize the significance of the extravasation injury, failed to understand how to treat it, failed to seek proper consultation and failed to understand the pathology of the extravasation injury. It was alleged that, given the signs and symptoms documented in the hospital record, a consult with a surgeon experienced in treating extravasation injuries was mandated and would have avoided the extensive and permanent injuries suffered by the patient.

The following is excerpted from the deposition of the oncologist:

Q. You have had training, have you, in the administration of chemotherapeutic agents such as doxorubicin?
A. Yes.
Q. Adriamycin is doxorubicin; correct?
A. Yes.
Q. Doxorubicin is a chemo-therapeutic agent which binds to nucleic acid, correct?
A. Yes.
Q. Binds to DNA, true?
A. Correct.
Q. In fact, that’s the mechanism by which it fights cancer cells, true?
A. Correct.
Q. What is the significance of the fact that doxorubicin binds to nucleic acid with regard to the progression of injury which may be caused by extravasation of doxorubicin into subcutaneous tissue?
A. It makes the damage irreversible.
Q. During the patient’s admission to the hospital did he suffer an extravasation of intravenously administered chemotherapeutic agents?
A. The answer is yes.
Q. Doctor, by extravasation we mean the escape of intravenous fluids into subcutaneous tissues, correct?
A. Correct.
Q. Do you recall what you did then?
A. I went straight back to the patient to see what happened.
Q. What did you observe or what did you find out?
A. I noticed that there was redness in the upper arm, a streak, along the long vein.
Q. Do you recall what you did next?
A. I took insulin syringes and first I aspirated around. Then I injected decadron a corticosteroid.
Q. Why did you do that?
A. To minimize the inflammatory process.
Q. Why did you want to do that?
A. This is a chemical irritant and to reduce the impact, the inflammatory impact.
Q. What is a chemical irritant?
A. Adriamycin.
Q. Adriamycin is not an irritant, it is a vesicant, isn’t it?
A. It’s a vesicant.
Q. A vesicant agent by definition is a blistering agent; is that right?
A. Correct.
Q. Doctor, I believe you stated that you administered the steroids to combat the inflammation, if you will; is that right?
A. To limit.
Q. Would you agree that severe local tissue necrosis may occur following doxorubicin extravasation?
A. Correct.
Q. Would you agree that the necrosis is progressive following extravasation?
A. Correct.
Q. And would you agree that the extravasation of a DNA binding vesicant agent leads to a more prolonged course of injury than a non-binding agent?
A. Correct.
Q. That’s because the pathogenesis of injury with a DNA binding agent is that, in this case, when the agent extravasates, it starts being up taken by healthy cells?
A. Correct.
Q. And it progresses and progresses as a result of that?
A. Right.
Q. Doctor, the cause of injury as a result of doxorubicin extravasation is not an inflammatory process; is it?
A. Inflammation follows.
Q. See if you can answer this question: We are talking about an agent, a vesicant agent that binds to nucleic acid. The injury caused by the extravasation of such agent is not caused by an inflammatory process; is it?
A. The initial injury is not an inflammatory – inflammation follows.
Q. I would like an answer to this question: In the face of extravasation of a vesicant chemo-therapeutic agent such as doxorubicin, which is a nucleic acid binding agent, it binds to DNA, how would the injection of steroids prevent the process of injury?
A. As I said before, the secondary process – I cannot remove the Adriamycin which is already bound to the nucleic acid. But the secondary process is the inflammation and I can do everything to limit that.
Q. But the progress of the injury I think we agree, is caused by the doxorubicin being up taken by healthy cells?
A. Yes.
Q. It progresses and progresses, correct?
A. Yes.
Q. Would you agree that doxorubicin, when extravasated into subcutaneous tissue, produces a permanent loss of that tissue’s ability to heal itself?
A. I don’t think it’s permanent to heal itself. It is a lasting damage. But I don’t think it’s permanent to heal itself.
Q. You think eventually it could heal itself?
A. Yes.
Q. Doctor, would you agree that there is no agent, that when injected locally, can alter the final result from extravasation of doxorubicin?
A. I believe so.
Q. You believe there is no agent or your believe there is an agent?
A. There is no agent that has been proven to reverse the damage produced by Adriamycin.
Q. Given the fact that you had no experience in treating a patient who had sustained an extravasation of doxorubicin, do you think it would have been a good idea for you to have talked to a physician who had experience in treating such patients; "yes" of "no"?
A. As I have stated before, I have discussed it with some colleagues and the conclusion was it’s not severe enough. Just monitor it carefully.
Q. Those are the people you don’t remember who they were, right?
A. Correct.
Q. The ones you made no note of, correct?
A. Correct.
Q. Would you agree that the only effective remedy for doxorubicin extravasation is the complete excision of the tissue containing the doxorubicin?
A. Yes.
Q. Well, if that’s so, why didn’t you obtain a surgical consult?
A. I thought it was improving. The arm was improving.
Q. As far as this patient’s arm was concerned and the effect of the possibility of extravasated chemo-therapeutic agents, that was your responsibility, correct, that was your expertise as an oncologist; wasn’t it?
A. I believe we all were involved, had this responsibility.
Q. But you were the attending oncologist, true?
A. Yes.
Q. That was in your particular area of expertise, correct?
A. Yes.
Q. Certainly when you are an oncologist and you are using chemotherapeutic agents such as doxorubicin, you should be aware of the effects of extravasation of such a drug, correct?
A. Correct.
Q. You should be aware of how to treat it, correct?
A. Correct.
Q. That is within your responsibility as the oncologist administering those drugs, true?
A. True.
Q. Is it the responsibility of the oncologist to determine when surgery should be performed in a given patient?
A. It is usually a team approach between the oncologist and vascular surgeon.
Q. Or a plastic reconstructive surgeon?
A. Plastic reconstructive surgeon.
Q. And a plastic reconstructive surgeon should be part of the team?
A. Yes.
Q. Doctor, you never ordered a plastic surgical, vascular surgical or any type of surgical consult for the patient at any time during your treatment of this man, true or not true?
A. I have not ordered the initial consult.

The deposition of the treating oncologist demonstrated a complete failure to understand the significance of the extravasation. Further, it was apparent that the physician did not understand how to treat the extravasation injury either acutely or long term. The deposition left no doubt that the physician had no understanding regarding the pathology of an extravasation injury caused by doxorubicin, had no training in treating same and had no knowledge as to the indications for injecting steroids into an extravasation.

Based on the total lack of knowledge of this physician, undeniably confirmed by the deposition testimony, the case settled for a substantial sum prior to trial. Further, it demonstrates that the plaintiff’s attorney must, prior to the deposition of the defendant physician in a malpractice case, be fully versed in the area of medicine involved as would be the case at trial.