James Roseingrave v. Massapequa General Hospital; Morton Rothstein, D.O.; Judith and John Mark, D.O.; Robert Mashioff, D.O.; Leonard Berlin, D.O.; Lester J. Van Ess, M.D.

/ / Case Verdicts

Case Name

James Roseingrave v. Massapequa General Hospital; Morton Rothstein, D.O.; Judith and John Mark, D.O.; Robert Mashioff, D.O.; Leonard Berlin, D.O.; Lester J. Van Ess, M.D.

Type of Injury

LACERATED URETER DURING LAPAROTOMY

Occupation

patient care assistant at Nassau County Medical Center

Location

Suffolk, NY

Verdict

$100,000 v. Van Ess. Breakdown: $50,000 for past pain and suffering; $50,000 for future pain and suffering; $0 for pecuniary damages. Defense verdict for Mashioff and Massapequa General (6/0 ).

Verdict Amount

$$100,000 v. Van Ess. Breakdown: $50,000 for past pain and suffering; $50,000 for future pain and suffering; $0 for pecuniary damages. Defense verdict for Mashioff and Massapequa General (6/0 ).

Case Details

XVII/17-13 MEDICAL MALPRACTICE LACERATED URETER DURING LAPAROTOMY CLAIM THAT BOWEL RESECTIONS AND NEPHRECTOMY WERE UNNECESSARY JURY FINDS EXCESSIVE AMOUNT OF BOWEL WAS REMOVED

James Roseingrave v. Massapequa General Hospital; Morton Rothstein, D.O.; Judith and John Mark, D.O.; Robert Mashioff, D.O.; Leonard Berlin, D.O.; Lester J. Van Ess, M.D. 20548/93 32-day trial Verdict 8/9/99 Suffolk Supreme

Judge: Lester Gerard

Verdict: $100,000 v. Van Ess. Breakdown: $50,000 for past pain and suffering; $50,000 for future pain and suffering; $0 for pecuniary damages.

Defense verdict for Mashioff and Massapequa General (6/0 ). The claims against Rothstein, Mark, Mark, and Berlin were dismissed. Jury: 1 male, 5 female. A post-trial motion is pending.

Pltf. Atty: Henry M. Grubel, Freeport

Deft. Atty: Stephen B. Geisler of Schiavetti, Geisler, Corgan, Soscia, DeVito, Gabriele & Nicholson, Garden City, for Van Ess

Frederick C. Johs of Lewis, Johs, Avallone & Bruno, Melville, for John and Judith Mark

Theodore F. Goralski of Rivkin, Radler & Kremer, Uniondale, for Rothstein

Brian R. Davey of Mulholland, Minion & Roe, Williston Park, for Massapequa General

Robert Devine of Ivone, Devine & Jensen, Lake Success, for Mashioff

Anthony Vardaro of Vardaro & Helwig, Smithtown, for Berlin

Facts: On 1/9/92, Pltf., a 42-year-old patient care assistant at Nassau County Medical Center, presented to Deft. Hospital s emergency room with chest and abdominal pain. A myocardial infarction was ruled out. On 1/16/92, he underwent an exploratory laparotomy for an alleged small bowel obstruction, with extensive intestinal resections. Deft. Van Ess performed the procedure and Deft. John Mark assisted. Pltf. developed adhesions, requiring a second exploratory laparotomy on 1/31/92, in which portions of his intestines were subjected to resections. Deft. Van Ess performed the procedure; Berlin was the attending internist; and Deft. Rothstein was the assistant surgeon. Pltf. claimed, and Defts. denied, that the large bowel was resected, particularly the cecum, ileocecal valve, and portions of the ascending colon. He contended that Defts. unnecessarily removed good tissue that did not have signs of perforations or necrosis. On 2/18/92, Pltf. was diagnosed, via a CAT scan, with an internal extravasation of urine from his right ureter, which Pltf. claimed was lacerated during the second laparotomy procedure. Pltf. refused a retrograde ureteroscopy. A nephrostomy tube was placed on 3/3/92. Defts. contended that surgery on 3/28/92 indicated that the ureter could not be repaired, and Pltf. underwent a right nephrectomy, although his kidney was still functioning. He was discharged on 5/8/92. Pltf. claimed that Deft. Mashioff should not have performed the nephrectomy, but should have repaired the urinary leak. Pltf. claimed that Deft. urologist delayed drainage of the kidney, leading to infection and the ultimate loss of the kidney. He also contended that Deft. was negligent for failing to diagnose the leakage sooner. Pltf. presented X-rays that showed a normal large bowel before 1/16/92 and no preoperative small bowel obstruction, as a possible partial small bowel obstruction had previously been relieved. Pltf. s expert testified that a barium enema performed at Brunswick Hospital on 2/3/93 revealed the absence of Pltf. s cecum, ileocecal valve, and most of his ascending colon. Pltf. s subsequent treating surgeon noted that 50% of Pltf. s small bowel had been removed. He presented hospital charts, which, he claimed, showed that the three operative reports were dictated 4-12 months after the procedures were performed. Pltf. claimed that he suffers from short bowel syndrome, post-operative malabsorption, chronic diarrhea, abdominal pain, and depression. He also claimed that the short bowel caused non- or malabsorption of his anti-seizure medication, contributing to his seizure disorder. Pltf. has not worked since the accident, and he has been hospitalized approximately 40 times since 5/92.

Defts. claimed that the first surgery was indicated and that Pltf. had a high grade obstruction. They contended that Pltf. did not have a short bowel as only 4 to 5 feet of the bowel was removed, that they had to remove Pltf. s kidney because the ureter could not be repaired, and that he was subsequently diagnosed with Munchausen Syndrome. Pltf., however, contested Munchausen Syndrome diagnosis, which is the subject of a pending action against the urologist who made this psychiatric diagnosis. Defts. argued that Pltf. had pseudo-seizures, which were confirmed by a 24-hour video EEG, and that Pltf. was not disabled from working. The jury found Dr. Van Ess negligent only for the removal of too much bowel during the second surgery. They did not find any negligence regarding the first surgery, that the kidney removal was improper, or that Pltf. was disabled from working. Demonstrative evidence: X-rays; CT scans; medical illustrations; video of Pltf. in hospital having a pseudo-seizure; pathology slides. Specials: $475,182 for past medical expenses; $265,000 for past lost earnings; $1,415,978 for future lost earnings. Jury deliberation: 2 days. Carriers: MLMIC; PRI.

Pltf. Experts: Dr. Gregory Fried, surgeon, Manhattan; Dr. Bernard Strauss, urologist, New Jersey; Dr. Charles Blatt, radiologist, White Plains; Edmond Provder, vocational rehabilitation, Manhattan.

Deft. Experts: Dr. Evan Dillon, radiologist, Manhattan; Dr. Richard Rubenstein, surgeon; East Patchogue; Dr. Arnold Melman, urologist, Bronx; Dr. Soonja Sabet, treating pathologist, Massapequa General Hospital; Dr. Gershon Ney, treating neurologist, Flushing; Dr. James Naidich, radiologist, Manhasset; Morris Ehrenreich, Ph.D., vocational rehabilitation, Manhattan.