Premises Liability
Defense: Surgery was necessary; accident wasn't
| Defense | |
| Negligent Repair and/or Maintenance, Premises Liability - Dangerous Condition, Medical Malpractice - Unnecessary Procedure, Medical Malpractice - Informed Consent, Medical Malpractice - Post-Operative Care, Medical Malpractice - Orthopedist, Medical Malpractice - Orthopedic Surgeon, Medical Malpractice - Orthopedic Surgery | |
| Michael Weremecki v. Broadway Continental Corp Jeffrey Goldstein, M.D. and Joint Effort Medical P.C. d/b/a Seaport Orthopaedic Associates, No. 24939/08 | |
| Queens Supreme, NY | |
| Kevin J. Kerrigan |
|
| 11-07-2012 |
- Ronald M. Yudin; Yudin & Yudin, PLLC; New York, NY, for Michael Weremecki, Angelique Weremecki
- Les Seplaki Ph.D; Economic Analysis; Fort Lee, NJ called by: Ronald Yudin
- Michael Murphy M.D.; Orthopedics; New Haven, CT called by: Ronald Yudin
- Vinoo Thomas M.D.; Anesthesiology; New York, NY called by: Ronald Yudin
- Bruce M. BradyM.D.; Callan, Koster, Brady & Brennan LLP; New York, NY, for Jeffrey Goldstein, Joint Effort Medical P.C.
- Peter E. Vairo; Law Offices of Charles J. Siegel; New York, NY, for Broadway Continental Corp.
- Mark Weidenbaum M.D.; Orthopedic Surgery; New York, NY called by: Bruce Brady
- CNA for Broadway Continental
- Physicians' Reciprocal Insurers for Goldstein and Joint Effort Medical
On June 9, 2006, plaintiff Michael Weremecki, 34, a warehouse's manager, worked at a building that was located at 78 Crosby St., in Manhattan. During the course of the day, Weremecki attempted to transport three heavy boxes to the building's second floor. The building's freight elevator was not operational, so Weremecki utilized a stairway. He claimed that the strenuous task caused an injury of his back.
On Sept. 6, 2006, Weremecki presented to an orthopedist, Dr. Jeffrey Goldstein. Weremecki reported that his back remained painful. Goldstein opined that Weremecki was suffering a protrusion of his L5-S1 intervertebral disc.
On Oct. 10, 2006, Weremecki underwent surgery that included a microdiscectomy, which involved the excision of a portion of his damaged disc, and a laminotomy, which involved the excision of a portion of a vertebra's arch. The procedure was performed by Goldstein.
Weremecki claimed that Goldstein's surgery did not resolve his pain. He also claimed that he sustained residual damage of a nerve.
Weremecki sued Goldstein; Goldstein's practice, Joint Effort Medical P.C.; and the owner of 78 Crosby St., Broadway Continental Corp. Weremecki alleged that Goldstein failed to properly treat his original injury, that Goldstein failed to obtain informed consent to the surgery that he performed, that Goldstein's failures constituted malpractice and that Joint Effort Medical was vicariously liable for Goldstein's actions. Weremecki also alleged that Broadway Continental was negligent in its maintenance of 78 Crosby St. He further alleged that Broadway Continental's negligence created a dangerous condition that caused his original injury.
Weremecki claimed that Broadway Continental's freight elevator had been out of service during the six months that preceded June 9, 2006. He contended that the elevator's unavailability necessitated his manual transportation of three boxes whose individual weights approximated 90 pounds.
Weremecki's expert orthopedist opined that Weremecki's injury did not require surgery. He contended that MRI scans indicated that Weremecki was suffering a bulging disc, and he opined that physical therapy and painkilling injections should have been the first course of treatment. Weremecki claimed that Goldstein advised that surgery was the only option and that the procedure did not involve much risk. Thus, Weremecki's counsel contended that Goldstein did not obtain informed consent to the procedure. Weremecki's counsel also contended that Goldstein did not perform a timely follow-up examination.
Goldstein contended that MRI scans demonstrated that Weremecki was suffering a protrusion of his L5-S1 disc, and he claimed that the disc was causing compression of the root of a spinal nerve. He also contended that Weremecki had reported that he was suffering severe pain that extended to his legs, and he claimed that Weremecki had also developed residual foot drop: weakness or paralysis of the muscles that control the front part of a foot. Goldstein claimed that surgery was an acceptable method of addressing Weremecki's injury and its residual effects, though he also claimed that he originally suggested a nonsurgical course of treatment. He contended that Weremecki preferred surgery. Goldstein further claimed that he fully explained the nature of the surgery that he intended to perform, the procedure's associated risks and the procedure's anticipated results.
Goldstein also contended that he scheduled prompt postsurgical evaluations. He claimed that a follow-up MRI scan was scheduled to have been performed within five weeks of the surgery, but that the procedure was delayed by several months because Weremecki failed to satisfy his insurer's request to submit to a physical examination.
Broadway Continental's counsel contended that its premises' freight elevator was disabled because of improper use by Weremecki's co-workers, and he claimed that Weremecki could have utilized the premises' passenger elevator. He also noted that Weremecki could not produce a witness to corroborate his account of the accident.
Weremecki claimed that the underlying accident caused a bulge of his L5-S1 disc. He contended that the disc caused impingement of the root of a spinal nerve, and he claimed that he suffered severe pain that radiated to his legs. He also claimed that his left foot developed foot drop.
On Oct. 10, 2006, Weremecki underwent surgery that included a microdiscectomy and a laminotomy. He contended that the procedure caused damage of a nerve, and he claimed that the damage caused excruciating pain. He contended that he developed impotence and urinary incontinence, and he also contended that he could not fully extend his left leg.
Weremecki underwent pain management that included his use of narcotic painkillers, but he claimed that the treatment did not resolve his pain. A surgeon has recommended fusion of the L5-S1 level of Weremecki's spine. Another doctor recommended the implantation of a device that would stimulate Weremecki's spine.
Weremecki claimed that his residual pain prevents his resumption of work. He has not worked since March 2007. He also claimed that his impotence persists. He sought recovery of $60,000 for future medical expenses, $190,000 for past lost earnings, $1.3 million for future lost earnings, $650,000 for past pain and suffering, and $1.2 million for future pain and suffering. His wife sought recovery of a total of $500,000 for loss of services and society.
Defense counsel contended that Mr. Weremecki does not suffer impotence. They also contended that Weremecki did not seek immediate treatment of his original injury and that he did not immediately report postsurgical disabilities.
Weremecki and Broadway Continental negotiated a high/low stipulation: Broadway Continental's liability could not exceed $1 million, but it had to equal or exceed $250,000.
The jury rendered a defense verdict. It found that Goldstein did not depart from an accepted standard of care, and it further found that Broadway Continental was not negligent in the maintenance of its premises. Weremecki recovered the stipulated damages: $250,000.
This report is based on information that was provided by defense counsel. Plaintiffs' counsel did not respond to the reporter's phone calls.
