Defense Verdict in New York County
Marc Hyman obtained a defense verdict in New York County in a medical malpractice case on behalf of a pain management specialist.
The 57-year-old, married, self-employed fashion model developed a severe infection in her shoulder and upper back following two anti-inflammatory and analgesic injections – the first injection in the postero-lateral shoulder for bursitis and a follow-up trigger point injection in the trapezius for spasm. Plaintiff claimed that non-sterile technique was employed for the first injection and that the defendant physician missed signs of infection before negligently giving the second injection and a short course of moderate dose oral cortico-steroids. It was further alleged that the defendant failed to timely work-up and diagnose the infection, and that the steroids injected and the oral steroids prescribed at the second injection masked the infection thereafter. Plaintiff also claimed that the physician and his office were generally inattentive to her care, allowing the infection to spread and become life-threatening.
Plaintiff continued her care with other physicians. By the time a definitive diagnosis and plan of treatment was undertaken, an extensive surgical evacuation of multiple subcutaneous abscesses was required with indwelling drainage and an indwelling catheter for local antibiotic administration over the course of a one-week hospitalization. Following discharge, she remained on ambulatory intravenous antibiotics for six weeks and required extensive physical therapy for her shoulder for several months. Plaintiff later underwent an arthroscopy and arthroplasty of her shoulder that plaintiff claimed was necessitated by damage from the infection. Residual pain, weakness and sensory impairment in the left shoulder, arm and hand were claimed.
Mr. Hyman represented the defendant pain management specialist throughout discovery and at trial. Plaintiff’s expert was her treating surgeon who evacuated the infection and followed her thereafter. Defense experts included a pain management specialist, an infectious disease specialist and an orthopedic surgeon. The defendant physician and the plaintiff and her husband also testified. The defense argued that plaintiff was not in position during the injections to know whether sterile technique had been employed and the defendant testified in detail that proper technique was used. The pain management expert testified that the injection technique described by the defendant was proper, that plaintiff’s increased pain following the first injection was a typical response to treatment and not reasonably suggestive of infection, that there were no clinical contraindications to the second injection and oral steroid prescription, and that follow-up thereafter, which included MRI imaging of the shoulder, was proper and timely. The infectious disease expert testified that infections can occur despite proper injection technique and that the steroids injected during the second injection and the short course of modest dose oral steroids prescribed would not have masked the infection. The orthopedist testified that the locus of the infection was at the site of the subsequent trigger point injection in the trapezious, which was remote from the first lateral bursal injection. He testified that the first injection therefore did not seed the infection, and thus there was no failure to diagnose infection at the time of the second injection. This expert also testified that the infection never entered the joint and was not the cause of any of the pathology necessitating the subsequent arthroscopy and arthroplasty. The expert testified that the pathology found in the shoulder represented the same chronic changes causing the original bursitis. With respect to the claim that there was a lack of attention paid to plaintiff’s care, it was demonstrated that the defendant physician and/or his office interacted with the patient on 9 of the 13 days from her first presentation to her final contact with the office.
On February 21, 2012, the jury returned a defense verdict on behalf of our client.