"With respect to falling objects, Labor Law § 240 (1) applies where the falling of an object is related to "a significant risk inherent in … the relative elevation … at which materials or loads must be positioned or secured" ( Rocovich v Consolidated Edison Co., supra, 78 NY2d, at 514). Thus, for section 240 (1) to apply, a plaintiff must show more than simply that an object fell causing injury to a worker. A plaintiff must show that the object fell, while being hoisted or secured, because of the absence or inadequacy of a safety device of the kind enumerated in the statute..."
What followed was a rash of dismissed "falling object" cases. Then in 2005 The Court in Outar v City of New York, 5 NY3d 731, 731, 832 N.E.2d 1186, 799 N.Y.S.2d 770 affirmed summary judgment for the plaintiff who had been injured when struck by a falling Dolly holding "The elevation differential between the dolly and plaintiff was sufficient to trigger Labor Law § 240 (1)'s protection, and the dolly was an object that required securing for the purposes of the undertaking..."
Narducci went silently into the night with The Court's holding in, Quattrocchi v F.J. Sciame Constr. Corp., 11 NY3d 757, 758, 896 N.E.2d 75, 866 N.Y.S.2d 592 wherein The Court held; "As our holding in Outar v City of New York indicates, "falling object" liability under Labor Law § 240 (1) is not limited to cases in which the falling object is in the process of being hoisted or secured..."
On March 2, 2010 The New York Appellate Division,1st. Dept. decided Harris v. 170 E. End Ave., LLC, 2010 NY Slip Op 01691. The facts as set forth by The Court were;
"Plaintiff, a steel worker, was injured during the construction of a 19-story condominium building. At the time of the accident, plaintiff was standing on the eighth floor of the structure. He was assisting in landing steel reinforcing bars on that floor, which were being lowered from the twelfth to the eighth floor by a crane. During the descent, the crane's cable struck a bundle of several hundred 4-inch by 4-inch by 16-foot wooden beams known as stringers or reshore. The bundle was situated on the tenth floor. The crane cable dislodged the bundle from its perch, causing the bundle to fall to the eighth floor, striking plaintiff and his co-worker. The co-worker died from his injuries.
Plaintiff moved for summary judgment under Labor Law § 240(1). He claimed that the statute applied because the accident was caused by the operation of gravity, insofar as the bundle of stringers was above him, and fell because of the absence of an adequate safety device. Defendants cross-moved for summary judgment to dismiss the entire complaint, which also alleged violations of Labor Law sections 200 and 241(6). With respect to the section 240(1) claim, they argued that there was no violation because the bundle of stringers which struck plaintiff was properly secured. To support this contention, they submitted the affidavit of an expert who opined that defendants utilized the standard practice and procedure for storing stringers." In affirming summary judgment for the plaintiff The Court held;
"Even assuming, without deciding, that defendants established that the bundle of stringers was secured in accordance with industry practice, summary judgment was properly granted to plaintiff on his claim pursuant to Labor Law § 240(1). That section "evinces a clear legislative intent to provide exceptional protection' for workers against the special hazards' that arise when the work site either is itself elevated or is positioned below the level where materials or load [are] hoisted or secured'" (Ross v Curtis-Palmer Hydro-Elec. Co., 81 NY2d 494, 500-501 [1993], quoting Rocovich v Consolidated Edison Co., 78 NY2d 509, 514 [1991]). The statute is one of strict liability. Therefore, it is irrelevant that a safety device was provided if an accident that the device was intended to prevent still befalls the plaintiff. Here, the bundle of stringers fell as a result of a foreseeable construction-related accident, not an act of God or other calamity which defendants could not have anticipated. Thus, section 240(1) was violated, notwithstanding that the bundle may have been chocked in accordance with industry protocol."
Given recent New York Court of Appeals decisions in construction accident cases involving Section 240(1), see, Runner v New York Stock Exchange, Inc., NY3d, 2009 WL 4840213, 2009 NY Slip Op 09310, 2009, it is submitted that the pendulum has swung back, i.e. an object at a construction site falls from a height plaintiff wins.
The owner of the city's largest construction crane company ( New York Crane and Equipment Company) is expected to be indicted for manslaughter in the death of two workers killed in an upper East Side disaster nearly two years ago.
For more information on New York Crane Accidents contact our New York Construction Accident Lawyers.
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The program will focus on various aspects of litigating medical malpractice cases, with attention to pitfalls of practice and other insights, all as viewed from the perspective of an experienced trial judge and two seasoned practitioners. The distinguished panel will consist of The Honorable Douglas E. McKeon, J.S.C. and two members of the medical malpractice bar, Ben B. Rubinowitz, Esq., Gair, Gair, Conason, Steigman, Mackauf, Bloom & Rubinowitz, and Glenn W. Dopf, Esq., Kopff, Nardelli & Dopf, LLP. Justice McKeon will serve as speaker and moderator.
To register click here.
For Transcript Click here http://amfix.blogs.cnn.com/2009/11/25/hotel-mogul-starts-own-health-care-system/
]]>Friday, November 20, 2009 Buffalo- http://www.nysba.org/AM/Template.cfm?Section=Events1&Template=/Conference/ConferenceDescByRegClass.cfm&ConferenceID=3584
Friday, December 4, 2009 Latham- http://www.nysba.org/AM/Template.cfm?Section=Events1&Template=/Conference/ConferenceDescByRegClass.cfm&ConferenceID=3585
Friday, December 4, 2009 Hauppauge - http://www.nysba.org/AM/Template.cfm?Section=Events1&Template=/Conference/ConferenceDescByRegClass.cfm&ConferenceID=3588
Friday, December 11, 2009 New York City - http://www.nysba.org/AM/Template.cfm?Section=Events1&Template=/Conference/ConferenceDescByRegClass.cfm&ConferenceID=3586
Friday, December 11, 2009 Syracuse - http://www.nysba.org/AM/Template.cfm?Section=Events1&Template=/Conference/ConferenceDescByRegClass.cfm&ConferenceID=3587
]]>Mr. Bloom said that the administration proposed giving doctors a 6 to 7 percent reduction in premiums, establishing new patient safety provisions, helping the handful of malpractice insurers take excess liability off their books, and re-establishing an assessment so all the state's property and casualty companies would support the malpractice high-risk pool, not just those few writing malpractice insurance.
However, with the collapse of the financial market and troubles at insurance giant AIG, the program bill was put on hold.
Blepharoplasty basically is surgery in which excess tissue is removed from the eyelids. It is the most commonly performed cosmetic surgery on 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).
It is thus essential, prior to surgery, for the physician to carefully assess the patient’s risk factors for bleeding. Aspirin, aspirin-containing products, other antiplatelet agents and anticoagulants should be discontinued prior to surgery. (Id. at p. 331). In this regard, the physician should obviously be aware of all medications used by the patient.
Acute orbital hemorrhage constitutes a medical and surgical emergency. Severe permanent visual impairment is likely if vascular compromise exists for more than 90 minutes. Prompt recognition and management are essential. (Id. at 332).
The following is an excerpt of a deposition of a plastic surgeon in a New York Medical Malpractice case in which the patient suffered a post-operative hemorrhage following blepharoplasty resulting in a complete loss of vision of the affected eye.
Q. Doctor is blepharoplasty basically a surgical procedure in which redundant tissues are excised from the eyelids?
A. It is an operation on the eye.
Q. What is the purpose of it?
A. To improve the cosmetic appearance.
Q. How does blepharoplasty improve the cosmetic appearance?
A. If somebody has redundant upper lid skin, that’s removed. If somebody has periorbital fat in the lower lids, that is removed.
Q. Is orbital hemorrhage a known complication or risk of blepharoplasty?
A. Yes.
Q. Would you agree that orbital hemorrhage following blepharoplasty constitutes a medical and surgical emergency?
A. Yes.
Q. Why?
A. Because it can interfere with circulation in the eye.
Q. What is the danger of the interference of circulation within the eye?
A. It can put pressure on the optic nerve.
Q. Why is that an emergency situation?
A. Because it can cause blindness.
Q. Would you agree that before blepharoplasty it is important to assess the patient’s risk factors for bleeding?
A. Yes.
Q. Why?
A. Bleeding can occur.
Q. And can result in hemorrhaging?
A. It could.
Q. Are these the preoperative instructions that you or your office give to a patient prior to a blepharoplasty?
A. Yes.
Q. They state, among other things: “Do not take aspirin or products containing aspirin for two weeks prior to surgery.”
A. Yes.
Q. Does aspirin inhibit platelet aggregation?
A. It has some effect on it.
Q. Is it correct that the reason patients are told not to take aspirin is that aspirin is a platelet aggregation inhibitor?
A. To a variable degree.
Q. The patient wrote down various medications, right?
A. Yes.
Q. Among those medications that he wrote down was a medication called Ticlid, is that right?
A. Yes.
Q. Is Ticlid ticlopidine hydrochloride?
A. Right.
Q. Ticlid is a platelet aggregation inhibitor, true?
A. Yes.
Q. Would you agree, Doctor, that Ticlid may cause a prolongation of bleeding time?
A. Possibly.
Q. Would you agree that if it is desired to eliminate the antiplatelet effects of Ticlid prior to elective surgery it should be discontinued 10 to 14 days prior to surgery?
A. If desired to remove it before surgery, it should be discontinued 10 to 14 days, yes.
Q. You advised him to not take aspirin prior to the surgery, true?
A. Correct.
Q. For two weeks prior?
A. Correct.
Q. One of the reasons is that aspirin is a platelet aggregation inhibitor, true?
A. To a degree, yes.
Q. Ticlid is also a platelet aggregation inhibitor, true?
A. To a degree.
Q. Doctor, you sent the patient for an activated partial thromboplastin time and a prothrombin time test, is that right?
A. Yes.
Q. A partial thromboplastin time test is known as PTT, correct?
A. Yes.
Q. A prothrombin time test is known as PT test, true?
A. Yes.
Q. How would either of those, the PTT or PT, measure in any way platelet function?
A. It doesn’t.
Q. And it doesn’t measure bleeding time, does it?
A. No.
(The activated partial thromboplastin time test evaluates all of the clotting factors of blood except platelets. The prothrombin time test measures how long it takes for a fibrin clot to form.)
Q. Would a patient taking aspirin at the time of the surgery be at greater risk for postoperative hemorrhaging?
A. Depending on the dosage.
Q. Is there a certain dosage at which a patient taking aspirin would be at greater risk for postoperative hemorrhaging at sometime during the postoperative period?
A. I believe if they were taking multiple aspirins per day, yes.
Q. How many milligrams?
A. I can’t tell you that exactly.
Q. That is because aspirin is a platelet aggregation inhibitor, correct?
A. Depending upon the strength.
Q. Well, just so I understand it, since Ticlid is also a platelet aggregation inhibitor, why wouldn’t a patient taking Ticlid be at greater risk for postoperative hemorrhaging at sometime during the postoperative period?
A. Ticlid is – does not cause bleeding. It’s purpose is to decrease to a certain degree platelet aggregation but not to cause bleeding.
Q. Ticlid prolongs bleeding time, does it?
A. It does not cause bleeding.
Q. Does it prolong bleeding time?
A. It may.
Q. Doctor, if a patient is on a medication and you know about that medication prior to the time you perform surgery, does good and accepted medical practice require that you know the effects of that medication prior to performing elective surgery?
A. Yes.
Q. Doctor, would you agree that postoperative hemorrhaging following blepharoplasty is the most feared complication of the procedure?
A. It’s a feared complication.
Q. Did you tell the patient that postoperative hemorrhage could result in loss of vision, yes or no?
A. I would not routinely tell a patient that he might go blind from the surgery.
Q. In fact, this patient did have intraorbital hemorrhaging, correct?
A. He had bulging of the eye, and the diagnosis ultimately was intraorbital hemorrhage.
Q. With compression of the optic nerve, true?
A. That was their diagnosis, yes.
Q. You don’t disagree with that, do you?
A. I don’t disagree with that.
This case obviously represents a glaring departure from accepted medical practice by the physician in failing to properly assess the patient’s risk factors for bleeding prior to performing elective cosmetic surgery. Poor surgical technique has also been ascribed as a cause of hemorrhage including aggressive manipulation of intraorbital fat with inadequate ligation and cautery of the fat pad vasculature. (Id. at 331)
Blepharoplasty is a procedure performed not only by plastic surgeons but by ophthalmologists, dermatologists and otolaryngologists. Further cosmetic surgery is an area of medicine that is highly advertised and competitive. The patient has a right to know not only the risks of the procedure but the training and experience of the physician.
In addition to the article cited above, excellent discussions of Blepharoplasty are: Castanares MS, Complications in Blepharoplasty. Clinics in Plastic Surgery, Vol. 5 No. 1 1978; ALT TH, Blepharoplasty. Dermatol Clin, Vol. 13 No. 2 1995. Lyon DB, Raphtis CS, Management of Complications of Blepharoplasty Int Ophtalmol Clin Vol. 37 No. 3 1997.
For more information on New York Medical Malpractice contact the New York Medical Malpractice Lawyers at Gair,Gair,Conason, Steigman,Mackauf,Bloom and Rubinowitz.
]]>In products liability cases involving allegedly defective machines such as printing presses, plastic molding machinery, power saws, power presses and innumerable others, the defense will invariably argue that it was the plaintiff’s culpable conduct which caused the accident and resulting injury. In other words, the defendant will argue that it was the plaintiff’s failure to use the product properly or to follow warnings which caused the plaintiff’s injury. In New York the plaintiff’s culpable conduct is a defense in a Products Liability case. The problem confronting the plaintiff’s attorney is that plaintiff will often not have used the machine properly. Given this fact, the jury must be taught that such misuses were reasonably foreseeable and that the manufacturer knew or should have known that users of products are people and that people can make mistakes which must be guarded and warned against.
The deposition of the defendant’s design engineer in a products liability case is crucial in New York. Defendants will often produce a risk manager on behalf of the manufacturer for deposition. This is totally unacceptable. The plaintiff’s attorney must insist that a design engineer with knowledge of the product be produced in order, among other things, to deal effectively with the affirmative defense of culpable conduct. Indeed, the deposition notice should be specific in this regard.
In order to effectively depose defendant’s design engineer with regard to the defense that the plaintiff’s negligence caused the accident, the plaintiff’s attorney must understand the concept of ergonomics as it relates to product design engineering. An understanding of hazard analysis is also required. Ergonomics as it relates to machine design involves the consideration of human factors and characteristics in designing safety features into machines. The basic precept is that people make mistakes. Since this is foreseeable to the design engineer, it must be taken into consideration when designing a product. A machine must be designed so as to reduce, as much as technologically feasible, without destroying the utility of the machine, foreseeable actions by the operator resulting in injury. In order to design a machine so as to reduce the potential of injury resulting from human error, hazard analysis must include a collection of accident and injury information. Product design is not a stagnant event, but an ever evolving process, which requires constant review of injury data, so that modifications to the machine design may be made to eliminate predictable human behavior resulting in injury. A hazard is a condition that may cause injury. Once a hazard has been identified, the risk of injury as a result of the hazard must be reduced as much as possible while preserving the utility of the machine. A machine is dangerous when the risk of being injured by the identified hazard is unacceptable.
Once a hazard is identified, it is the responsibility of the design engineer to design the machine so as to eliminate, or at least, reduce the possibility of injury resulting from that hazard. There is an accepted priority in the field of product design engineering with regard to the prevention of injury from an identified hazard. The first goal of the design engineer is to eliminate or design out the hazard if this can be done without destroying the functional utility of the product. Obviously, this often cannot be done. The second option is to guard against the hazard causing injury. If the hazard cannot be guarded against the final option is to warn about the potential of injury resulting from the known hazard.
In many cases involving injury caused by allegedly defective machines, the machine will have had a warning on it as to the very action by the plaintiff which precipitated his injury. This must, of course, be dealt with at the deposition of the defendant’s design engineer. Most design engineers will admit that written warnings are the least effective method of protecting someone from a known hazard and should be used only as a last resort or in combination with proper guarding.
]]> The following is an edited portion of the deposition of defendant’s design engineer in a case in which the plaintiff suffered severe injuries to his hand when it was drawn into the plates of a printing press. The guard on the press in the area of the plate cylinder had been removed subsequent to manufacture. It was plaintiff’s position that defendant knew the guards were often removed and that they should have been interlocked to prevent operation of the press without the guard in place. The plaintiff at the time of his injury was attempting to remove impurities (hickeys) from the moving plate cylinder. Although this was a dangerous and improper manner in which to remove hickeys, it was plaintiff’s position that it was a common practice in the printing industry and thus foreseeable.The first goal was to have the design engineer concede that this was a foreseeable action by a press operator:
Q. Are you familiar with the term hickey?
A. Yes.
Q. Hickeys are part of the printing process; is that right?
A. Yes.
Q. Would you agree that a hickey is some type of imperfection on a plate or cylinder which results in an imperfection of the product?
A. Yes.
Q. And hickeys can be caused, among other things, by specs of dirt on the plate cylinder?
A. Yes.
Q. They can be caused by lint on the plate cylinder; is that correct?
A. Yes.
Q. They can be caused by dry ink on the plate cylinder; is that correct?
A. Yes.
Q. Among other things; those are some of the things that can cause hickeys, correct?
A. Yes.
Q. Do you agree that hickeys must be removed from the plate cylinder or imperfections will appear on the product being printed?
A. Yes.
Q. Is it fair to say that hickeys are recurring problems on printing presses?
A. Yes.
Q. And they are certainly not unusual?
A. No, they are not unusual.
Q. Is it fair to say that pressmen who are operating offset presses have to be aware of hickeys?
A. Yes.
Q. And if hickeys develop on a plate cylinder, the pressman must remove them; is that correct?
A. Yes.
Q. Are you familiar with the term chasing hickeys?
A. Yes.
(Chasing hickeys is attempting to remove them from the plate cylinder with the press in operation.)
Q. Are you aware of pressmen attempting to remove hickeys with their fingers or hands from the plate cylinder of offset presses while the press is in operation?
A. Yes.
Q. You are aware, aren’t you, of pressmen being injured when using their hands or fingers to remove hickeys from the plate cylinder with the press in operation; is that right?
A. Yes.
Having conceded that there was a recognized hazard as a result of a foreseeable action by a press operator, the witness was next questioned with regard to designing the machine so as to prevent injuries resulting from that hazard, and specifically with regard to the priority, the design engineer is obligated by professional standards to follow in reducing the risk of injury from a known hazard.
Q. Would you agree as a design engineer that once a hazardous condition is identified in a machine the first goal of the design engineer is to design out that hazard?
A. Yes.
Q. Would you agree as a design engineer that if an identified hazard cannot be designed out of a machine without destroying its utility, the next goal is to guard it?
A. Yes.
Q. Is it fair to say that the last alternative is, if you cannot design out the hazard and you can’t guard against it, then you warn about it?
A. Yes.
Q. And that is a priority, isn’t it?
A. Yes.
The witness was then questioned as to the consideration of foreseeable human behavior with regard to the design of the machine; and the fact, known to design engineers and to be considered by them, that people make mistakes.
Q. As a design engineer, are you familiar with the concept of ergonomics?
A. Yes.
Q. In layman’s terms, that is what is known as human factors; is that correct?
A. Yes.
Q. Included in the field of ergonomics is human error; is that correct?
A. Yes.
Q. In designing a machine, does a design engineer take into consideration that the machine is going to be used by people?
A. Yes.
Q. When this printing press was designed, you knew it was going to be used by people of varying intelligence; is that correct?
A. Yes.
Q. And you knew that it was going to be used by people with varying degrees of education, correct?
A. Yes.
Q. And you knew that it was going to be used by people with varying degrees of experience with printing presses, correct?
A. Yes.
Q. As a design engineer, you knew that people make mistakes; is that correct?
A. Yes.
Q. And in designing a machine, a design engineer who was incorporating safety devices into the machine takes into consideration the fact that humans make mistakes; is that correct?
A. That is not the only reason.
Q. It is one of the reasons, though, isn’t it.
A. Yes.
Q. Because if we were all perfect, you wouldn’t need guards, any guards on any machines, would you?
A. Correct.
Q. The reason guards are put on machines are to prevent injury as a result of foreseeable actions by operators of the machines; is that correct?
A. Accidents are normally not foreseeable. That is the problem that we have.
Q. Wouldn’t you agree that the reason the guard was incorporated into the design of this press was to prevent injury to operators by foreseeable actions of the operators?
A. Possibly, but there were also other reasons.
Q. But that was one of the reasons?
A. Yes.
Q. And specifically it was to prevent operators from picking hickeys off the plate roller with the machine fully operational and in the printing mode; is that correct?
A. It was the rules and regulations of operating the machine to stop the machine in order to remove the hickeys from the machine.
Q. That really wasn’t the question, but I will try to move along.
If press operators never picked hickeys with the press in operation, you wouldn’t need the guard, would you?
A. Yes.
Q. Yes, that is a true statement?
A. Yes, that is a true statement.
Q. Is it then fair to say that the guard was utilized on this press to prevent certain actions by operators of the press which are foreseeable to you as a design engineer?
A. Foreseeable and unforeseeable actions were the reasons for it.
Q. Among those foreseeable actions were operators using their hands or a rag to remove hickeys from the plate cylinder with the press in operation, true?
A. Yes, but that was not correct. That was not a proper way of operating the machine.
Q. But the answer is yes?
A. Yes.
Q. Is it fair to say that from a design engineering standpoint part of design engineering is anticipating operator behavior and taking that into account in the design of a machine and its safety devices?
A. Partly, yes.
The witness was next questioned with regard to the known danger of operating the press with the guard removed;
Q. By risk, we mean the probability of being injured by identifiable hazards, correct?
A. Yes.
Q. Would you agree that with regards to machine design danger means an unacceptable combination of risk and hazard?
A. Yes.
Q. Would you agree that it was dangerous to operate this printing press with the guard removed?
A. More dangerous.
Q. This press as designed could be operated with the guard removed, true?
A. Yes.
The witness was then questioned as to whether it was technologically feasible to incorporate the safety device plaintiff asserted should have been included in the design of the machine at the time of manufacture;
Q. You would want to make a printing press as safe as technologically possible without destroying the utility of that press, correct?
A. It has to be as safe as possible but still functional.
Q. So, the answer is yes, I take it?
A. Yes.
Q. Anything that you could do which was technologically feasible which could prevent injury to the operator without destroying the utility of the machine you would want to do, true?
A. Yes.
Q. Was it technologically feasible prior to the date of manufacture to have incorporated an interlock into the guard design so that when the guard was removed from the press power to the press would be cut?
A. Yes.
This type of questioning of the defendant’s design engineer will enable the plaintiff’s attorney at trial to meet head on, from opening through summation, the defendant’s argument that the plaintiff must bear responsibility for the accident since he operated the machine improperly. His actions were foreseeable, it will be argued, and the injury could have been prevented by the defendant manufacturer by incorporating proper safety devices into the design of the machine. Thus, instead of allowing the manufacturer to shift the responsibility for the injury to the injured plaintiff, who did not use the machine properly, the jury may be reasonably asked to place responsibility for the injury where it belongs, on the manufacturer who was aware of the foreseeable operator behavior, which caused the injury and failed to take adequate measures to prevent injury from that foreseeable behavior.
For more information on injuries caused by defective products contact the New York Product Liability Lawyers at Gair,Gair,Conason,Steigman,Mackauf,Bloom&Rubinowitz.
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For more information on New York construction accidents contact the New York Construction Accident Lawyers at Gair, Gair, Conason, Steigman, Mackauf, Bloom & Rubinowitz.
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This discussion involves 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.
]]> The defendant told her she could remove the hamangioma by surgery known as tissue expansion. It was plaintiff’s claim that tissue expansion was reconstructive, not cosmetic surgery, and as it was developing at the time was being used not for cosmetic but for reconstructive procedures such as breast reconstruction following a radical mastectomy, or for such disfiguring injuries as gunshot wounds and severe burn injuries. It was claimed that when it was used on an hemangioma it was on the types that impaired one physically. In other words, the claim was it was used where any scarring it caused would still be an improvement over the condition being corrected.Tissue expansion is a two stage procedure. In the first phase a surgical incision is made in the area of the hemangioma and a tissue expander, which is a balloon-type of inflatable device is inserted under the skin with a filler port extruding. Thereafter during a period of many weeks the expander is filled with saline thus expanding it as a mechanical means of stretching the skin to create a flap which will be used to cover the defective area, in this case the port wine stain. The proof was that the defendant had never performed tissue expansion on a hemangioma.
It was plaintiff’s primary claim that at the second stage of the surgery when the flap was to be used to cover the defect, there were obvious signs of infection and a compromise of the blood supply which would doom the surgery to failure, result in significant scarring and cause necrosis of the flap. Plaintiff claimed that defendant should then have cancelled the surgery and simply removed the expander excising the stretched skin. Instead she went through with the surgery, the flap necrosed and horrendous scarring resulted which required two further surgeries by a well known reconstructive surgeon to correct what the defendant had caused. The plaintiff was of course left with the hemangioma and additional scarring.
The defendant claimed this was merely a complication of the surgery the risks of which had all been explained to the plaintiff, who was an educated woman, and the surgery was a proper procedure for this patient. Finally the defendant argued that the defendant exercised her judgment in going through with the second stage of the surgery.
The plaintiff was faced with the difficult situation in which a patient undergoes elective cosmetic surgery and then the defense is she is simply unhappy with the result. Hence, in cross examining the defendant, plaintiff sought to demonstrate the defendant’s lack of experience, her mercenary bent, her ignoring signs of infection and her cavalier attitude toward the patient and the end result. Further plaintiff felt it crucial to portray the defendant as a cosmetic surgeon, not a skilled reconstructive surgeon, who created a worse condition than the plaintiff had when she first came to her. What follows are excerpts of the cross examination of the defendant which sought to accomplish these goals.
The plaintiff first sought to show that defendant was a cosmetic surgeon, not a reconstructive surgeon and had no training or experience in tissue expansion.
Q. Is it correct the first time you saw the plaintiff was in January?
A. Yes it was
Q. And at some point is it correct you performed tissue expansion surgery on her?
A. Yes, it is.
Q. And and now, during your residency in general surgery, doctor, did you
receive any type of training in tissue expansion surgery?
A. No I did not.
Q. Is it correct that you are known as a cosmetic surgeon? That is what you are?
A. I am a plastic and reconstructive surgeon. That is my board certification and that is what I do everyday.
Q. Doctor, did you author this book, Dr. Doe’s cosmetic surgery for women?
A. Yes.
Q. This wasn’t written for physicians?
A. Laymen.
Q. Lay people, correct?
A. Yes.
The fact that defendant advertised herself as a cosmetic surgeon was then established.
Q. Let me show you this advertisement doctor. Is this an advertisement that you had published in the newspaper.
A. Yes
Q. That states the Doe Medical Center for cosmetic surgery?
A. Yes.
Q. This ad holds you out as a cosmetic surgeon, correct?
A. That ad shows I do cosmetic surgery.
Q. You don’t say anything in this ad about come see me if you are in a car accident and you have serious physical trauma.
A. No.
Q. The purpose of those advertisements, doctor, that you had published was to get business?
A. I call it practice builder, than to get business.
Q. Practice builder, you are getting patients to come in and see you who want to look better.
A. Yes.
Q. That is why they were put in?.
A. Yes.
Q. Now, doctor you had at one time in your office an individual whose job it was to publicize you, correct?
A. Yes.
Q. That was Jane Doe?
Q. means to get business, correct.
A. Practice builder.
Q. What is a practice builder, to get people into see you, right?
A. A way to bring people in so they can learn about what is available and if they are so inclined, to proceed with surgery.
Q. Doctor, I want to refer to your book again. Do you agree with this statement – I’m reading from page 7: “Beware of doctors who advertise heavily”?
A. Yes.
Q. Doctor, you agree with that statement and yet you advertise, is that right?
A. Correct, yes.
The defendant, who was the first witness, was then asked questions which would later serve to confirm the testimony of the plaintiff with regard to her first visit with the defendant.
Q. And did Miss Smith advise you that she was concerned about blood spots or raised areas of the birthmark?
A. Yes.
Q. And did she tell you she wanted to know if there was anything that you could do about those?
A. Yes.
Q. Did she tell you the blood spots were increasing in size?
A. Yes.
Q. And she was troubled about that, correct?
A. Yes.
Q. Did you tell her at some point that you could remove most, if not all, of the birth mark?
A. I told her there were operations available to her.
Q. Doctor, at some point you told her did you not that by the process of tissue expansion surgery you could make her look better?
A. Yes.
Q. You wouldn’t have done this surgery if there wasn’t a great probability that you couldn’t have made her look better, correct?
A. Correct.
Q. You told her that’s what you could do with tissue expansion surgery?
A. Yes.
Next the total lack of experience of the defendant in the area of tissue expansion surgery was established.
Q. Now, prior to this patient’s surgery had you ever performed tissue expansion surgery on a hemangioma.
A. No.
Q. Had you every done tissue expansion surgery on a facial area as large as this patient’s?
A. No.
Q. Did you ever tell her that you had never done this tissue expansion on a hemangioma.
A. I did not.
Q. Don’t you think she had a right to know, Doctor?
A. No, I don’t think it is important.
Q. Doctor, had you ever been in the operating room and observed tissue expansion surgery performed on a hemangioma prior to your seeing this patient?
A. No.
Q. Had you ever been in the operating room prior to performing it on her and observed it being done on a facial area as large as hers?
A. No.
The defendant was then confronted with evidence of a high complication rate with this type of surgery and that she failed to advise plaintiff of this.
Q. There was medical opinion out there in 1985, was there not, that stated when you do tissue expansion, you get alarming complication rates, correct?
A. Depends on what articles you read or what experts you talked to.
Q. Doctor, had you read, and I assume you had, based on your testimony, had you read some of these medical articles that did state that with tissue expansion there was large complication rates?
A. I don’t remember the word alarming. It is not something usually used in medical literature, but I did read articles that said there were significant complications associated with tissue expansion.
Q. As much as over fifty percent of the time, correct, in some of these medical articles?
A. I don’t recall over fifty percent.
Q. Forty five percent?
A, I don’t remember the percentage, But it was significant.
Q. Significant?
A. Yes.
Q. Did you tell her that there was a significant complication rate with this procedure?
A. No.
Q. Don’t you think she had a right to know?
A. I don’t think it was pertinent.
The defendant was then forced to concede that the hemangioma caused no physical impairment and the only reason to perform surgery was if aesthetically her appearance could be improved.
Q. You recommended this surgery, didn’t you?
A. I did.
Q. And that was because you told her it would make her look better, that was the purpose of the surgery, correct?
A. Yes.
Q. Doctor, this hemangioma, this birthmark that she had, was a type of hemangioma that in no way impaired physical function; isn’t that correct?
A. Yes, that’s right.
Q. And doctor, would you agree with this type of birthmark or lesion, if you will, that it doesn’t impair physical function, that it should only be removed if there is great probability of aesthetic improvement.
A. Yes.
Q. And, in your opinion doctor, if there wasn’t a great probability of aesthetic improvement with this non-physically impairing lesion, would it be a departure from accepted surgical practices to remove it?
A. Yes.
Q. Now. This is elective surgery, correct?
A. Yes.
Q. There was no physical impairment, we are in agreement on that?
A. Yes.
Q. There was no risks involved if the surgery wasn’t done, was there?
A. Right.
Q. So, there was no reason to do this surgery, if it wasn’t going to improve her appearance, correct?
A. Correct.
Q. And there were certainly risks and complications that if they occurred would doom the surgery to failure, correct?
A. Yes.
The defendant was then questioned with regard to the second stage of the surgery. The plaintiff’s point was that the defendant should have halted the procedure and thus would have avoided the injuries which ultimately befell plaintiff. It was conceded by the defendant that the plaintiff had signs of a compromised blood supply which could result in infection and necrosis of the flap.
Q. In August, you performed surgery, correct?
A. Yes I did
Q. And that was under what is known as general anesthesia?
A. Yes it was.
Q. And the patient was asleep.
A. Yes.
Q. And that surgery was for removal of the expander, correct?
A. Correct.
And for excision of the portion of the hemangioma, correct.
A. Correct.
Q. And for advancement of the flap?
A. Yes
Q. And when I say advancement, over the area to be covered, correct?
A. Yes.
Q. Now, after you removed the expander, did you observe or become aware of a problem with the blood supply to the expanded skin for the flap?
A. Yes I did.
Q. Your operative report for this surgery states: Duskiness of the flap appears, correct?
A. Correct.
Q. That dusky color indicates, does it not, a problem with the blood supply?
A. Yes it does.
Q. Is it correct you first observed that duskiness after you removed the expander?
A. Yes.
Q. Is it correct that you noticed the duskiness before you made the total and complete incision necessary for the flap advancement.
A. The incision?
Q. Yes the total, the completed excision.
A. Yes
Q. And when you observed the duskiness you ordered a fluorescein test?
A. Yes.
Q. A fluorescein test measures or tests the circulation of the blood, correct?
A. It is a reflection of the circulation.
Q. And your operative report states poor fluorescence is noted, is that correct?
A. That’s correct.
Q. And thats indicative, is it not, of a compromise or impairment of blood supply?
A. Yes it is.
Q. Now is it correct that the effect of a compromise or impairment of the blood supply to the flap is that the skin could necrose and die?
A. It depends on the degree of compromise.
Q. That can happen is that right?
A. Yes, it can.
Q. And the result of that could be extensive scarring correct?
A. Correct.
Q. And not only extensive scarring, but it would doom the operation to failure, is that right?
A. It has the potential, the possibility.
Q. And that’s because the expanded skin would be useless, it loses its blood supply, it dies?
A. If the whole thing was cyanotic.
Q. If it gets to the point where there is a compromise to the blood supply, correct?
A. Potentially.
Q. Well, doctor, in fact, the flap expanded skin did lose its blood supply correct?
A. It eventually lost its blood supply.
Q. And a scar was created, is that correct?
A. That is correct.
Q. And that scar was created by yourself by the surgery you did?
A. Yes it was.
Q. It wasn’t there before?
A. That is correct.
Q. Now, doctor, you could have stopped this surgery, could you not, at the point you realized there was an impairment of blood supply to the expanded skin?
A. Yes I could.
Q. And you didn’t, is that right?
A. That’s absolutely right.
Q. You went ahead with it. Now, doctor, you also knew, did you not, that a compromise or impairment of the blood supply increases the risk of infection.
A. Yes, I know that.
The defendant was next questioned regarding her failure to order intraoperative antibiotics to reduce the possibility of infection.
Q. Was any Ancef given to this patient intraoperatively?
A. I don’t see in the record that it was given.
Q. Was any antibiotic given intraoperatively?
A. There is no evidence that there was.
Q. In fact, in your opinion, would it not be a departure from proper and accepted surgical practices and procedures to have failed to give antibiotics with this surgery.
A. Yes.
Q. Doctor, did the patient develop an infection and lose the flap?
A. She developed an infection and a loss of the flap.
Q. And the infection with the resulting loss of the flap was caused, was it not, by compromise of the blood supply to the flap?
A. It could have been a contributing factor.
Q. Well it led, the compromise of the blood supply, led to the infection is that right?
A. Yes.
Q. So it caused it.
A. Yes, it was a contributing factor. There were other contributing factors probably.
Q. But the main thing that caused the infection was the lack of blood supply?
A. Yes.
Q. Now doctor, on the day after surgery, a complete blood count was taken, wasn’t it?
Yes, it was.
Q. And, in fact, her white blood count was 17.8, wasn’t it?
A. Yes.
Q. That is the white blood count, correct?
A. Yes.
Q. That is 17.8?
Yes.
Q. Highly elevated, isn’t it?
A. Yes.
Q. And that is consistent with an infectious process.
A. In surgery.
Q. But – but it is consistent, that is a very high blood count?
A. Yes.
Q. And it is indicative of an infectious process?
A. Yes.
The defendant was then forced to concede that she did not even know what the patient’s white blood count was on the day prior to surgery.
Q. But she did, in fact, develop an infection did she not?
A. Yes she did.
Q. And you were treating this as an infection?
A. I was treating it as a potential infection.
Q. Which developed?
A. Yes.
Q. And which destroyed the flap, correct?
A. A portion of the flap.
Q. Destroyed enough of it so she was left with scarring, correct?
A. Correct
Q. Now, a complete blood count was taken the day before surgery correct?
A. Yes.
Q. And as we discussed before, that is important, includes the white blood count and important because you want to know if there is any type of infectious process going on, correct?
A. Yes sir.
Q. And, it is important to know what the numbers are, whether it is elevated or not; is that right?
A. Yes.
Q. And is there a lab slip in the record?
A. Yes there is.
Q. And what does that indicate her white blood count was?
A. Indicates 8.9.
Q. Doctor, that is not her lab slip, is it.
A. No, it isn’t.
Q. That is some other patient’s lab slip?
A. Yes.
Q. You didn’t know what her white blood count was, did you?
A. Well this is on her chart. I assumed it to be hers.
Q. But it wasn’t, was it?
A. That is the one we got from the hospital.
Q. So, the lab slip you looked at before surgery to determine whether this patient had an elevated white blood count was some other patients?
A. According to this, yes sir.
Q. So you had no idea what the plaintiff’s white blood count was did you?
A. Not if this is a true record
Q. For all you knew she could have had a white blood count of 17.8 before surgery; is that right?
A. Yes, she could have.
Q. And it would be, would it not, contraindicated to perform this surgery if she had such an elevated white blood count?
A. Contrary, you would have to get the implant out and proceed with the surgery. Just the opposite.
Q. Doctor, you would have to administer antibiotics, wouldn’t you.
A. She got antibiotics.
Q. White blood count is meaningless.
A. Significant
Q. Significant, something a doctor should know before surgery?
A. Yes.
Q. You didn’t know it?
A. Yes
Q. In your opinion, departure from proper and accepted medical practice and procedure to have performed this surgery on the plaintiff not knowing her preoperative white blood count.
A. Absolutely not. No matter what the white count was, the same exact thing would have been done.
Q. We are in agreement, you didn’t know what it was correct?
A. According to this record, the wrong slip is on the chart.
The defendant was then confronted with the injuries she caused
Q. Doctor, this surgery was a total failure wasn’t it?
A. No.
Q. Wasn’t successful?
A. Partially successful.
Q. Doctor, we agree the flap lost its blood supply?
A. A portion of the flap lost its blood supply.
Q. And resulted in scarring.
A. Yes
Q. And that was scarring you created, correct?
A. Correct.
Q. And it was a result of the surgery you performed?
A. Yes
Q. You could have stopped that surgery, correct?
A. Yes
Q. You didn’t know what the plaintiff’s white blood count was before the surgery?
A. That’s correct
Q. Now, following this surgery the plaintiff still had the hemangioma as well?
A. A portion of it
Q. Now she also had extensive scarring?
A. Yes
Q. She had a disfiguring fold of skin in the area of her mouth?
A. Yes.
The defendant was then questioned about the further surgeries performed by a well known plastic reconstructive surgeon which plaintiff claimed were necessitated by defendant’s negligence and were required to correct the injuries she caused
Q. Now this surgery that he did, the operation, left oral commissureplasty, revision of left facial scar, that was done to correct, to attempt to correct what you created, correct?
A. Yes.
Q. Now, let me direct your attention to the record of the second subsequent surgery.
A. Yes, the operation.
Q. Yes, and this was again by the reconstructive surgeon?
A. Yes
Q. Some two years after the first surgery that you did, correct?
Yes sir.
Q. And at this time is it correct there was a left oral commissureplasty, and that was to correct the problem with the mouth, right?
A. Yes
Q. And there was a Z-plasty, is that correct?
A. Yes
Q. That’s for the scarring?
A. Yes
Q. And there was a vermillion advancement of the left upper lip?
A. Yes
Q. And again we are working in the area of the mouth, correct?
A. Upper lip.
Q. Yes. In the area of the lip or, the mouth?
A. Yes.
Q. And there was a defatting of the flap, correct?
A. Yes.
Q. Now, looking at the operative report, in your opinion, was this surgery also done to correct the condition created by your surgery?
A. Yes
Q. So, both these subsequent surgeries were done to correct what you had created.
A. Yes they were.
Q. And doctor, we are in agreement, are we not, that the surgery, the two surgeries performed by Doctor B were caused by your surgery.
A. Yes sir.
Finally, on redirect the plaintiff strived to hit home to the jury that the defendant was less than candid in anticipation of the Falsus In Uno charge which would be given
Q. Now, you also testified, doctor, that laser surgery has many risks and complications, correct?
A. That’s correct
Q. Often is not successful?
A. Yes, correct
Q. Doctor, I want to read to you from your book on cosmetic surgery, all right?
A. Yes
Q. From page 84. Just tell me whether you agree with this statement that you wrote, all right?
A. Yes
Q. Under birthmarks – “sometimes unwarranted growths are with us from birth. Capillary hemangiomas, which include port wine stains actually are a form of benign tumors. They are flat birthmarks that look like flat wine colored patches on the skin. These are distressing when they occur on the face. And until recently little could be done about them. However, laser treatments are creating great hope in this area. The treatments are not widely available as yet. So long waiting lists are not uncommon. Ask your physician about the possibility of laser treatment in your own area”.
Do you agree with that statement?
A. No
Q. Doctor, this book was put out to educate people, correct?
A. Yes
Q. Now, I am not making this up, I am reading from it?
A. Yes
Q. “Capillary hemangiomas which include port wine stains actually are a form of benign tumors.” That is what you wrote, that wasn’t true, was it?
A. Well
Q. Not True?
A. It was a variance of the truth.
Q. Variance of the truth?
A. Yes
Q. Variance of the truth?
A. Yes
Q. Doctor, this book under – gives your credentials, one reading it would think, would rely on it, would they not?
A. I wonder how much they rely on it. I hope that they take it and weight it for its face value. Certainly not to substitute for the surgeon, and I tell that to people. Don’t take my book, don’t take literature, don’t take anything as an authority. You want an informed an interview, you want to make an informed decision, I am your authority. It is not my book, it is not what you read in the newspaper, it is not what you see in pamphlets.
Q. Doctor, they certainly would have no reason to think, would they, that what you wrote was a variance of the truth, would they yes or no?
A. I don’t know.
The trial continued until on the morning of summation the defendant offered to settle the case for a substantial sum which the plaintiff accepted. The jurors later explained that based on the defendant’s testimony they felt that she was in fact not qualified to perform the surgery, that it was not indicated and most importantly that she was not a credible witness.