Facts

On March 6, 2001, plaintiff, Louis Ramirez, suffered a lower back injury in the course of his employment as a beer salesman. Despite treatment by a number of different orthopedic surgeons, physical rehabilitation therapists and a urologist over the course of 18 months, the plaintiff continued to suffer from intractable lower back pain, coupled with radicular symptomatology.

In June 2002, plaintiff was referred for an Agreed Medical Examination by his workers' compensation company to defendant, Dr. Stephen Wertheimer. After reviewing all prior treaters' records regarding treatment modalities that had been provided to plaintiff, as well as all prior testing and work-ups performed on the plaintiff, including but not limited to, an MRI of the lumbar spine that was interpreted as being normal, Dr. Wertheimer concluded the patient was suffering from piriformis syndrome. Dr. Wertheimer recommended the patient undergo piriformis tendon release procedure during the course of his AME examination on the plaintiff, dated June 26, 2002.

Thereafter, in January 2003, plaintiff presented to Dr. Wertheimer and requested the previously recommended a piriformis release procedure be undertaken by Dr. Wertheimer. Conflicting percipient and expert testimony was provided during the trial as to the efficacy of the initial piriformis release procedure that was performed on the patient's right piriformis tendon on Jan. 17, 2003.

The plaintiff alleged at trial that he only obtained transient relief in connection with the right piriformis release procedure, but that since he had ongoing and intractable pain bilaterally, he nonetheless sought out and underwent a second piriformis release procedure by Dr. Wertheimer on the left side. This second piriformis release procedure was performed by Dr. Wertheimer on July 26, 2003.

The plaintiff complained of ongoing and intractable pain following the performance of the second piriformis release procedure. Approximately one year later, on July 28, 2004, Dr. Wertheimer performed a wedge resection to the operative scar on plaintiff's left buttock secondary to a diagnosis of a potential neuroma. Preoperative labs performed before the wedge resection procedure indicated the plaintiff was experiencing abnormal clotting factors. Dr. Wertheimer nonetheless proceeded with the wedge resection procedure and a neuroma was identified in the pathology conducted in conjunction with this surgery.

Unfortunately the plaintiff experienced prolonged postoperative bleeding following this wedge resection procedure. He also continued to complain of severe and ongoing pain in the left lower extremity. One month after this procedure was undertaken, plaintiff alleged he experienced a sharp pain at the surgical site resulting in a fall that resulted in the patient suffering a crush injury to his right foot.

The plaintiff alleged he suffered two subsequent falls, dating to July 2005 and July 2006, which collectively resulted in bilateral trimaleolar fractures to both lower extremities.

The plaintiff's expert, Dr. Michal Schiffman, was the subsequent treating orthopedic surgeon that initially saw the plaintiff in February 2005. Dr. Schiffman opined that Dr. Wertheimer's diagnosis of bilateral piriformis syndrome was an outdated and obsolete diagnosis, was not appropriate and the surgeries performed by Dr. Wertheimer were contraindicated. According to Dr. Schiffman, the patient should have appropriately been diagnosed with an intervertebral disk injury. Further, according to Dr. Schiffman, epidural injections and perhaps lumbar back surgery would have been the appropriate treatment modalities. Dr. Schiffman also testified that Dr. Wertheimer should not have performed the July 28, 2004 wedge resection procedure given the abnormal preoperative labs on the patient and that all of Dr. Wertheimer's surgeries were a substantial factor in causing plaintiff's subsequent multiple falls and injuries, as Dr. Wertheimer had allegedly destabilized the patient's hip region secondary to performance of the piriformis release procedures and also nicked the patient's sciatic nerve in connection with the performance of the left piriformis release procedure.

The defense contended the diagnosis and treatments rendered by Dr. Wertheimer were within the applicable standard of care. The defense further pointed out that all total hip replacement surgeries are performed such that the piriformis tendon is released in order to gain access to the greater trochanter. The defense further pointed out that total hip replacement surgeries frequently result in the surgeon opting not to re-attach the piriformis tendon, as both the tendon and piriformis muscle play a very minor role and have no impact on a patient's gait or stability. The defense further provided evidence, through pathology reports, negative EMG studies and like testing modalities, which collectively and irrefutably indicated the patient's sciatic nerve had not been injured in any way by Dr. Wertheimer's surgeries or treatment.

PLAINTIFF'S CONTENTIONS:
The plaintiff contended Dr. Wertheimer breached the standard of care in diagnosing bilateral piriformis syndrome, a diagnosis the defense conceded at trial was an extremely rare diagnosis. The plaintiff argued the diagnosis of one-sided piriformis syndrome was extremely rare, and a diagnosis of bilateral piriformis syndrome was "off the charts."

The plaintiff also contended that all three surgeries by Dr. Wertheimer were conducted in a manner causing destabilization of the plaintiff's bilateral hip regions and gait, and that the performance of the surgeries by Dr. Wertheimer were contraindicated and resulted in injury to the patient's sciatic nerve, all of which allegedly played a substantial factor in causing the patient to suffer multiple post-operative falls resulting in a crush injury to the right foot, as well as bilateral trimaleolar fractures.

The plaintiff further contended that had Dr. Schiffman seen the patient in April or May 2001, shortly after the patient's original industrial injury, the treatment modalities recommended by Dr. Schiffman would have resulted in the patient going back to work effective January 2003.

DEFENDANT'S CONTENTIONS:
The defendant contended the diagnostic work-up and impressions of Dr. Wertheimer were within the standard of care and appropriate, especially given the patient's ongoing complaints of intractable pain and sciatic-like symptomatology, notwithstanding the fact the patient had normal lumbar MRI's and EMG studies performed shortly after the original March 6, 2001 industrial injury. The defendant also contended that the surgeries performed by Dr. Wertheimer were performed appropriately and in no way contributed to the destabilization or impairment of the patient's gait, nor did the surgeries result in any injury to the patient's sciatic nerve.

The defendant further developed through expert testimony a theory that the patient's repeated falls were the result of the patient being pre-diabetic and hence suffering problems with his sense of feel in his bilateral lower extremities, thus leading to the patient inadvertently stumbling and falling on multiple occasions.

Settlement Discussions

The plaintiff originally demanded $399,000 in settlement, which was lowered to $150,000 immediately prior to commencement of trial. The defendant made no offer.

Specials in Evidence

$122,000

Injuries

The plaintiff alleged suffering a crush injury to his right foot, as well as bilateral trimaleolar fractures to both lower extremities.

Result

Defense verdict.

Other Information

During the course of discovery, the plaintiff was diagnosed as suffering from multiple myeloma. The defense therefore retained an oncololgy expert, Dr. Okun, who opined at trial that there was nothing encountered during Dr. Wertheimer's treatment that would have indicated the need to refer the patient for work-up as to his diagnosis of multiple myeloma. Dr. Okun further testified that multiple myeloma was not present during the time frame Dr. Wertheimer was treating the patient. The plaintiff offered no contrary evidence at trial to these allegations. Because of the multiple myeloma and multiple falls, plaintiff presented throughout trial in a wheelchair in a very weakened condition. FILING DATE: Oct. 11, 2005.

Deliberation

half hour

Poll

10-2 (defense)

Length

eight days