Case Study #7


Late Attempt to Switch Medical Theories is Blocked

Client:  A world-renowned orthopedic surgeon and a prestigious hospital.

Type of Case:  Alleged negligent performance of left total hip replacement surgery. 

Background:  The plaintiff underwent a cemented left total hip replacement, after which she developed permanent paralysis of the left foot.  The plaintiff claimed the defendant orthopedic surgeon utilized excess cement during the procedure, thereby causing the cement to protrude from the hip socket and damage the sciatic nerve.

Suit Filed:  The case was brought by the plaintiff in New York State Supreme Court, New York County.

Action Strategy:  Aaronson Rappaport was able to defeat the plaintiff’s claims by doing the following:

1) The firm retained several experts who were prepared to testify that the medical records and radiographic evidence proved there was, in fact, no excess cement used during the surgery, and all aspects of the surgery were performed properly.

2) After the case was on the court’s trial calendar, the plaintiff attempted to amend her theory of liability and instead argue that the defendants failed to diagnose a hematoma that impinged on the sciatic nerve.  Aaronson Rappaport successfully moved to preclude the plaintiff from presenting any such evidence at trial, as the claim was untimely asserted and not medically substantiated.  Despite the court ruling, the plaintiff attempted to reintroduce the hematoma claim by including reference to it within her expert witness disclosure.  Aaronson Rappaport returned to court and successfully moved to preclude the expert testimony, leaving the plaintiff without a meritorious theory of liability and causation. 

Result:  Left without a viable medical theory to argue at trial, the plaintiff was unable to proceed to trial and the court dismissed the case.