how to effectively use a neurosurgeon in the courtroom
TRANSCRIPT
The New York City Chapter of the American Board of Trial Advocates (ABOTA) & The Defense Association of New York Proudly Co-Sponsor:
Program:• Moderator: Sean Dugan, Esq.
Martin Clearwater & Bell LLP
Distinguished Panel Members:
• Dr. Christopher Allyn Lycette Board Certified by the American Board of Neurological Surgery
• Christopher Donadio, Esq. Gair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman & Mackauf — Plaintiff’s Perspective
• Jennine Gerrard, Esq. Lewis Brisbois Bisgaard & Smith LLP — Defense Perspective
This program is suitable for both newly admitted and experienced attorneys.
Date and Time:
November 12, 2020 5:00 – 7:00 p.m.Via Zoom:CLICK HERE TO REGISTERhttps://us02web.zoom.us/webinar/register/WN_XgQbl7hMTqirDEk_SwPjEw
Free CLE – 2 Credits• Fulfills 2 CLE Skills Credits
• Outside NY, accreditation will be arranged by National ABOTA Office.
For NY Admitted Attorneys: The Defense Association of New York has been granted CLE accreditation by the New York Office of Court Administration. 2.0 CLE credits will be granted in Skills and is appropriate for both experienced and newly admitted attorneys.
Attendance Verification Codes & Attorney Affirmation For New York CLE attendance verification purposes, any course codes announced during the program must be recorded on the affirmation form available on the CLE Board website at: http://ww2.nycourts.gov/attorneys/cle/affirmation_sample.pdf
CLE sponsored by
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How to Effectively use a Neurosurgeon in the Courtroom
HOW TO EFFECTIVELY USE A NEUROSURGEON IN THE COURTROOM
CLE Materials - Table of Contents
Materials, of Christopher Allyn Lycette, M.D. -------------------------------------- pages 3 - 9 Slides, of Christopher Allyn Lycette, M.D. ------------------------------------------- pages 10 - 19 Materials, of Christopher J. Donadio, Esq. ----------------------------------------- pages 20 - 27 Materials, of Jennine A. Gerrard, Esq. ----------------------------------------------- pages 28 - 34 Curriculum Vitae: Sean F.X. Dugan, Esq. ----------------------------------------- page 35 Curriculum Vitae: Christopher Allyn Lycette, M.D. ---------------------------- pages 36 - 39 Curriculum Vitae: Christopher J. Donadio, Esq. -------------------------------- pages 40 - 41 Curriculum Vitae: Jennine A. Gerrard, Esq. ------------------------------------- pages 42 - 43 Background - Expert Institute -------------------------------------------------------- pages 44 - 46 Background - Lexitas ------------------------------------------------------------------- page 47 Background - PM Legal ---------------------------------------------------------------- page 48
Continuing Legal Education Seminar 11.12.20
Distinguishing Neurosurgical Risks from Negligence
PREPARED FOR MEMBERS OF
The American Board of Trial Advocates (ABOTA)
The Defense Association of New York (DANY)
PREPARED BY
Chris Lycette, M.D.
Interim Chief, Division of Neurological Surgery, Lehigh Valley Health Network
IN COLLABORATION WITH
Expert Institute
888.858.9511 | [email protected] | expertinstitute.com
DISTINGUISHING NEUROSURGICAL RISKS FROM NEGLIGENCE | 1
STATEMENT OF QUALIFICATIONS
Chris A. Lycette, M.D.
Interim Chief, Division of Neurological Surgery,
Lehigh Valley Health Network
M.D., Columbia University
Board Certified: Neurological Surgery
Residency, Neurosurgery, UCLA
Fellowship, Complex and Minimally-Invasive Spinal Surgery, Cedars-Sinai Medical Center
Member, American Association of Neurological Surgeons
Member, North American Spine Society
Member, Joint Section on Spine and Peripheral Nerves
Former, Medical Researcher, Harvard University School of Medicine, Brigham & Women’s Hospital
______________________________________________________________________________________________
Conditions treated: Acoustic Neuroma, Back and Neck Pain, Cerebrospinal Fluid Leak (CSF
Leak), Cervical Disk Disease, Degenerative Disk Disease, Fractures, Herniated Disk,
Intervertebral Disc Disease, Intracerebral Hemorrhage (Hemorrhagic Stroke), Myelopathy,
Osteoarthritis of Spine, Radiculopathy, Schwannoma, Sciatica, Scoliosis, Secondary
Malignancies, Spinal Cord Disorders and Injuries, Spinal Deformities, Spinal Fractures,
Spinal Stenosis, Spondylolisthesis, Stroke, Traumatic Brain Injury
© 2020 EXPERT INSTITUTE | EXPERTINSTITUTE.COM | 888.858.9511
DISTINGUISHING NEUROSURGICAL RISKS FROM NEGLIGENCE | 2
Neurosurgery Subspecialties
Neuro vs. Orthopedic Spine Specialists
Neuro Spine Specialists
● Highly-proficient in spine surgeries
● Do spine through their 7 year residency
● Fellowship trained spinal neurosurgeons handle advanced and complicated cases
Orthopedic Spine Specialists
● Handle more scoliosis cases
● Must do a Fellowship after 5-year residency to be competent spine surgeons
● Not trained to do spinal cord or spinal tumor surgeries
© 2020 EXPERT INSTITUTE | EXPERTINSTITUTE.COM | 888.858.9511
Specialty Conditions Treated
Spinal Surgery Spinal decompression, discectomy, spinal fusion
Pediatric Neurosurgery Facial anomalies, tumors, congenital spine defects
Neuro-Oncology Brain and spinal tumors
Skull-Base Surgery Skull-base disorders and tumors
Movement Disorder Neurosurgery Cerebral palsy, Parkinsons
Vascular Neurosurgery Cerebral aneurysms, narrowed blood vessels
Seizure Disorder Neurosurgery Epilepsy management
Traumatology Head injuries
DISTINGUISHING NEUROSURGICAL RISKS FROM NEGLIGENCE | 3
Case Studies
01 | Cerebrospinal Fluid Leak
What It Is:
● Cerebrospinal fluid (CSF) escapes through a tear in the dura mater
● Can occur in the brain or along the spinal column
● Resulting effects include: intracranial hypotension (pressure within the skull),
headache, vision changes, sensitivity to light and sound, trouble with balance, etc.
Why It’s Challenging to Prove Negligence:
● Procedure risk — occurs in up to 10% of cases
● Difficult to get documented malpractice evidence
● Poor preoperative neurological exams make for difficult postoperative comparisons
How to Build the Strongest Case:
● Look out for delayed CSF leak recognition or failure to treat upon discovery
● Solid neurological exams are critical to case success
© 2020 EXPERT INSTITUTE | EXPERTINSTITUTE.COM | 888.858.9511
DISTINGUISHING NEUROSURGICAL RISKS FROM NEGLIGENCE | 4
02 | Foot Drop
What It Is:
● Malfunction of the L5 nerve
● Resulting effects include: inability to raise foot, limp foot, numbness, muscle
weakness, difficulty walking
Why It’s Challenging to Prove Negligence:
● Nerves are sensitive and unpredictable
● Could occur following successful surgery
● Could occur following removal of pressure
What to Look For:
● Level of nerve damage:
○ Complete foot drop — very disabling, stronger case
○ Partial foot drop — patient could retain up to 90% nerve function with
weakness, weaker case
© 2020 EXPERT INSTITUTE | EXPERTINSTITUTE.COM | 888.858.9511
DISTINGUISHING NEUROSURGICAL RISKS FROM NEGLIGENCE | 5
03 | Cauda Equina Syndrome
What It Is:
● Sudden numbness of the perirectal area — sometimes called “saddle anesthesia”
● Resulting effects include: numbness of genitals, rectum, and buttocks, urinary
retention, loss of rectal tone, fecal incontinence, and leg weakness
Why It’s Challenging to Prove Negligence:
● Only occurs one out of every 100 times the diagnosis is suggested
● Need the full range of symptoms to make a strong case
What to Look For:
● Full constellation of symptoms (not just one or two)
● Age of patient — CAS is more common in younger patients (30s and 40s)
● Timing of onset — quicker presentation more likely true CAS
● Tends to be associated with sudden herniated discs in the lumbar spine
© 2020 EXPERT INSTITUTE | EXPERTINSTITUTE.COM | 888.858.9511
DISTINGUISHING NEUROSURGICAL RISKS FROM NEGLIGENCE | 6
Tips for Working Up
Neurosurgery Cases ● Hire the right neurosurgery subspecialist
● Consult a neurosurgeon before deciding how to proceed on the case
● Look out for errors made out of haste
© 2020 EXPERT INSTITUTE | EXPERTINSTITUTE.COM | 888.858.9511
Distinguishing Neurosurgical Risks From Negligence
CLE SEMINAR 11.12.20
Chris A. Lycette, M.D.INTERIM CHIEF, DIVISION OF NEUROLOGICAL SURGERY, LEHIGH VALLEY HEALTH NETWORK
PRESENTED BY
Expert Institute888.858.9511 | [email protected]
PREPARED IN COLLABORATION WITH
Chris A. Lycette, M.D.
Interim Chief, Division of Neurological SurgeryLEHIGH VALLEY HEALTH NETWORK
● M.D., Columbia University
● Board Certified: Neurological Surgery
● Residency, Neurosurgery, UCLA
● Fellowship, Complex and Minimally -Invasive Spinal
Surgery, Cedars -Sinai Medical Center
● Member, American Association of Neurological Surgeons
● Member, North American Spine Society
● Member, Joint Section on Spine and Peripheral Nerves
● Former, Medical Researcher, Harvard University School
of Medicine, Brigham & Women’s Hospital
Pediatric neurosurgeryFacial anomalies, tumors, congenital spine defects
Spinal surgerySpinal decompression, discectomy, spinal fusion
Range of Neurosurgery Subspecialties
Neuro -oncologyBrain and spinal tumors
Movement disordersCerebral palsy, Parkinsons
VascularneurosurgeryCerebral aneurysms, narrowed blood vessels
Skull -base surgery Skull-base disorders and tumors
Seizure disordersEpilepsy management
TraumatologyneurosurgeryHead injury treatment
Neuro Spine Specialists vs.Orthopedic Spine Specialists
● Handle more scoliosis cases
● Must do a Fellowship after 5 -year residency to be competent spine surgeons
● Not trained to do surgeries on:
○ Spinal cord
○ Spinal tumors
● Highly-proficient in spine surgeries
● Do spine through their 7 year residency
● Fellowship trained spinal neurosurgeons handle advanced and complicated cases
Neuro Spine Specialists Orthopedic Spine Specialists
Procedure Risk or Surgeon Negligence?Let’s review a few cases
Cerebrospinal Fluid Leak
● CSF escapes through a tear in the dura mater
● Procedure risk — occurs in up to 10% of cases
● Difficult to get documented malpractice evidence
● Look out for delayed CSF leak recognition or failure
to treat upon discovery
● Solid neurological exams critical to case success
DIAGNOSIS
Foot Drop
● L5 nerve injury
● Could occur following successful surgery
● Look at level of nerve damage:
○ Complete foot drop — very disabling
○ Partial foot drop — can retain up to 90%
nerve function with weakness
DIAGNOSIS
Cauda Equina Syndrome
DIAGNOSIS
● Constellation of symptoms:
○ Numbness of genitals, rectum, and buttocks
○ Urinary retention
○ Loss of rectal tone
○ Fecal incontinence
○ Leg weakness
● Age of presentation is critical
Tips for Working Up Neurosurgery Cases
● Hire the right neurosurgery subspecialist
● Consult a neurosurgeon before deciding
how to proceed on the case
● Look out for errors made out of haste
USING A NEUROSURGERY EXPERT – PLAINTIFF’S PERSPECTIVE Christopher J. Donadio Gair, Gair, Conason, et al. 80 Pine Street, 34th Floor New York, NY 10005 (212) 943-1090 [email protected]
I. Introduction
“It’s just a disc bulge.” “The plaintiff only tweaked her back, we all know someone who
had sone that, it’s not a big deal.” “The plaintiff has back pain…who doesn’t?” We have all
heard statements like this from defense attorneys. Whether at mediations, pre-trial conferences,
or at trial, defense attorneys do a wonderful job of minimizing, belittling and trivializing our
client’s injuries and pain. Unfortunately, all too often, plaintiff’s attorneys do not have adequate
responses to such statements. Even worse, sometimes, plaintiff’s attorneys find themselves
thinking, “hmmm, maybe the injury isn’t so bad.”
The problem is not that plaintiffs’ attorneys do not understand their client’s injuries. After
having litigated a case for several years, a plaintiff’s attorney will have spent a great deal of time
with their injured client, they will have reviewed their client’s medical records, and they will
have (or should have) had the opportunity to spend some time with their client in their daily life
to fully understand how the injuries have affected them. A plaintiffs’ attorney will indeed
understand the injury. The problem is, however, they are not able to convey the injuries to the
jury.
Fortunately, the injuries themselves, provide a means for a plaintiffs’ attorney to convey
to the jury their client’s significant harm. By thoroughly discussing the relevant anatomy and
medicine related to the client’s injuries, a plaintiffs’ lawyer can show the jury something they
have never seen before, and help the jury understand the severity of the damages. One of the best
ways to do this, is through an expert…such as a neurosurgeon.
II. Give Them Something They Have Never Seen Before In order for the jury to understand our client’s injuries, we must provide specific detail of
the injuries in a creative way. By wowing the jury, giving them something they have never seen
before, we can shut down their internal monologues and help them understand our client’s
injuries.
All human beings have internal monologues. Sometimes these monologues are extremely
active, moving from subject to subject, thinking about various aspects of our days, weeks,
months or lives. Sometimes, however, our monologues are very quiet, or not active at all. If you
think about it, the moments when our internal monologues are at their most quiet, or not active at
all are when we are fully engrossed in something, whether it be a book, a movie, or a
conversation. When we are fully engrossed with the subject in front of us, our internal
monologues go silent.
Now jurors, are of course human beings. And just like all human beings, they too have
internal monologues. When you consider this, it is rather intimidating. The jurors who hold our
client’s lives in their hands, may allow their internal monologues to run wild while we are going
through the most important aspects of our cases. Their internal monologues may be a million
miles away at the moment that we are delving into the severity and complexity of our client’s
injuries. However, there is a way to turn off that monologue. How? By wowing our jurors. By
giving them something that they’ve never seen before.
Let’s imagine for a moment we are on a jury, listening to the case of Mrs. Smith, a
woman who suffered a fractured femur. Mrs. Smith’s lawyer is giving his opening statement to
you and is about to get to the portion of the opening where you are going to learn about Mrs.
Smith’s injury for the first time. You as the jury are very interested to hear what injury has
brought this all about, what could have happened to poor Mrs. Smith? As the moment of truth
arrives, while you are fully alert waiting to be wowed, Mrs. Smith’s lawyer looks you in the eye
and says, “…and as a result of the defendant’s failures, Mrs. Smith has suffered a fractured leg,
which required surgery and physical therapy. She still suffers from pain to this day.” The lawyer
then says “thank you” and sits down. Oh, we think to ourselves, a fractured leg? That’s why
we’re here? Huh, my brother fractured his leg once, he was just fine, in fact a few weeks later he
was back running marathons. Hmm? Marathons, I wish I was running right now. It’s beautiful
outside and I’m stuck in here. Maybe I’ll be able to squeeze a run in if this lawyer speeds this up
and doesn’t keep me here all day.
I think you get the point. The juror’s mind is now miles away from the courtroom, not
listening to a word you are saying. Unfortunately, “a fractured leg” is not something that is going
to wow the jury, in fact, it is most likely to bring them to a time in their life when they knew
someone who broke their leg, likely someone whose life was barely affected by the injury. This
is a huge problem. You may be able to win that jury back throughout the trial with great
testimony from your doctor or a great cross of the defense expert doctor, but it will definitely be
an uphill climb.
If you take that same scenario, except this time Mrs. Smith’s lawyer goes in to specific
detail of the injury, with demonstrative exhibits and language that grabs the jurors, i.e. “Mrs.
Smith couldn’t see when the doctors added weights to the rod through her knee to yank her
shattered leg back in to place…but she could feel it, and even worse…she could hear it”. When a
jury is wowed, engaged, interested, that internal monologue shuts off. Now they are not thinking
about their brother’s broken leg that kept him out of marathons for four weeks, but are listening
to you, thinking about your poor client and what they went through. When you give great detail
and wow the jury, they will be seeing something that they have never seen before. Their internal
monologues will search their brains’ memory banks but they will not find any memory of
hearing about a broken leg like your clients. That is the goal. Give them something that they
cannot equate to anything they have dealt with in their lives before.
Remember, give the jury something they have never seen before, otherwise, the internal
monologue wins and your client loses. So how do you wow the jury? How do you give them
something they haven’t seen before? First, you must begin with the anatomy.
II. Anatomy
In order for the jury to fully appreciate the extent of your client’s harm, it is necessary to
give them a complete (and interesting!) anatomy discussion. The use of an expert, such as a
neurosurgeon, can help you provide the jury the information of the anatomy they need. However,
as a plaintiff it is critical that you simply do not ask the expert standard direct questions and have
them lecture to the jury. Jurors do not want to be lectured. As a trial attorney you must engage
your neurosurgical expert in a way that entertains and informs. Although there are many ways to
do this, these materials are going to focus on two concepts: (1) looping; and (2) demonstrative
aids.
A. Looping
Although expert witnesses may be extremely well qualified and know the medical subject
material better than anyone in the courtroom, it does not mean they will be the best at conveying
the subject material to the jury. Unfortunately, many times, experts sound too professorial and
lose the attention of the jurors. One way that a trial lawyer can stop this from happening is by
utilizing “looping.” Looping involves using what a witness just said to frame the beginning of a
direct question. As such, it is not an objectionable question, and allows the trial lawyer to convey
information to a jury that they may have missed due to a dry witness. It also allows the trial
lawyer to decipher medical jargon for the jury.
Consider this question and answer:
Q: Doctor, what is a tubular microdisectomy?
A: Well counsel it is one approach to performing a microdisectomy, which is
the removal of some or all of a disc within the patient’s spine. Tubular means the surgeons are
using a tubular retractor, which gives them a limited diameter operative field. They then use the
tubular retractor to gain visualization of the operative field and the subject material of the
miscrodisectomy.
It is likely that much of this flew over the jurors’ heads. Yes, a trial lawyer must go back
and have the doctor clarify each portion of their answer, but by simply asking “What is a tubular
retractor?”, the jurors may have forgotten the context of “tubular retractor.” In addition, they
may not have understood what a tubular retractor even does. A better way to do it, is to “loop”
the question:
Q: Doctor, when you say that a tubular microdisectomy uses a tubular
retractor to see inside the patient, how do it do that?
Looping allows you to give context to the clarification question you are asking and also
allows you an opportunity to put medical jargon into simply language the jurors can understand.
Notice how the looped question already gives the jurors an understanding that the tubular
retractor allows the surgeon to see inside the patient. This is something that may have gone over
their heads when they heard the doctor’s original explanation, where he/she said a tubular
retractor is used to “gain visualization of the operative field.”
It also allows jurors to rehear what the witness just said, this time by the trial lawyer
using the testimony to frame the next question. This is always helpful, in that you want the jury
to hear positive testimony for your client a second time, but it can also assist the juror’s in
hearing exactly what was said, especially if you have an expert who is testifying in a quiet and/or
dry manner.
By looping your questions, a trial lawyer can keep a jury focused by giving them clear
direction as to where the questions are coming from and also assist in putting complex terms and
concepts into layman’s terms.
III. Demonstrative Aids
It is critical to use demonstrative aids to discuss your client’s injuries and treatments.
Jurors are wowed and excited by things they can see…so give them what they want! If you are
permitted by the judge, you should use demonstrative aids during your opening statement. If that
is not permitted, you must use them when you are questioning witnesses about the injuries. There
are several different type of demonstrative aids that are useful in helping to explain your client’s
injuries. One of the best ways to utilize these aids is to use them with your expert neurosurgeon.
A neurosurgeon’s skill set, specially the ability to read radiological studies and perform surgery,
makes a neurosurgeon a great witness to utilize virtually any medically related demonstrative
aid.
The first type of demonstrative aids that are helpful are models of your client’s injuries. A
model of a femur, spine, foot, neck, etc., are extremely useful in allowing the jury to see exactly
what you are talking about when you are explaining the injury. Even when describing an injury
step by step, it is easy for a person to get lost and not completely understand the injury. Having a
physical model of the injured body part allows the jury to better understand what you are
describing.
The next type of demonstrative aids are radiographic studies, whether x-rays, MRIs, or
CT scans. Not every single radiographic study should be used, in fact, the only studies that
should be used are ones that a lay person can look at and say “Wow look at that broken leg!”
without any guidance from a lawyer or a doctor. Not every case is going to have this kind of
study, but if you do have one, for instance an x-ray that shows your client’s broken femur resting
parallel to each other, or your client’s broken dislocated shoulder resting in their rib cage,
enlarge the study on to a giant foam board and let the jury see it.
The use of 3D animations can also be useful in demonstrating your client’s injuries.
There are a variety of companies that can take your clients radiographic studies, and put them
into a 3D format that allow the jurors to see your client’s injury from all different angles. These
type of animations can be extremely useful in cases involving injuries to body parts that can not
fully be appreciated in 2D, such as fractures to the pelvis.
Finally, one of the best, if not the best demonstrative aid you can use to help a jury
understand your client’s injuries, are medical illustrations of your client’s injuries. Although
there are many generic illustrations out there, which are useful, if possible, it is best to have a
medical illustrator take your client’s radiographic studies, operative reports and other important
medical records, and create illustrations that show your client’s specific anatomy and how their
specific anatomy has been disrupted by their injuries. These illustrations can also be used to
show step by step the surgeries that were performed to treat your client’s injuries.
V. Conclusion “Win the crowd and you win your freedom.” “I will win the crowd, I will give them
something they’ve never seen before.” Great words to remember, provided to us by the
characters of the Best Picture winner “Gladiator”. By giving our jurors something they have
never seen before when discussing damages, you will win their attention and in turn you will
obtain justice for your client. By using the specific details of your client’s injuries, and
conveying them in a way that wows the jury, you will turn off the internal monologue that is
inside each of your jurors, and gain their full attention. One of the best ways to do this is by the
use of an expert physician such as a neurosurgeon. Good luck!
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HOW TO EFFECTIVELY USE A NEUROSURGEON IN THE COURTROOM ON BEHALF OF THE DEFENSE
SPONSORED BY ABOTA AND DANY NOVEMBER 12, 2020
JENNINE A. GERRARD, ESQ. TRIAL PARTNER, LEWIS BRISBOIS BISGAARD & SMITH
1. OVERCOME THE INTIMIDATION FACTOR OF YOUR JURY BY USING YOUR EXPERT TO BE THE TEACHER. Start in voir dire-
When jurors come wandering into the jury selection room, they frequently feel
overwhelmed, especially if this is their first time sitting as jurors on a case, which plaintiff’s counsel will tell them right away is worth a “substantial amount of damages.” This fear can be greater if they hear that this is a case about brain surgery or spinal surgery and that a neurosurgical expert or two are coming in to testify. I have had jurors pull counsel out into the hall and express their fears that they are somehow not qualified or knowledgeable enough to make such a difficult decision. Smile. Act like a normal person. Understand their trepidation and help them feel comfortable. Acknowledge their fears and tell them that almost every juror feels intimidated by the process. Your job as a trial attorney is to immediately put them at ease, by telling them that you will be bringing in medical experts, such as a neurosurgeon, who will explain the medicine to them in layperson’s terms, so that by the end of the case, they will be more than equipped to understand the medicine and to reach a verdict based on the facts presented. You can ask them questions that will make them realize that maybe they do know more about the medical issues that will be discussed at trial. Ask them whether they have had anyone in their family who has suffered from a herniated disc, or a bulging disc, or a child who suffered a concussion playing sports. Ask whether they know anyone who has been treated with surgery to any part of their brain or spine, or a peripheral nerve issue that they took medication or injections for. You may discover that many jurors have experience with neurosurgeons, but they did not realize that until just now.
Find out who is on your jury that can help your case. Maybe you have a juror sitting in your room who has had a herniated disc, or had a discectomy who has recovered completely. That juror may be knocked off in a challenge by your adversary, depending on what the rest of your panel looks like, but if they are selected, that juror will wonder why they can sit for eight hours without pain and will look skeptically at a plaintiff who claims that they cannot work at any job because it involves sitting or standing. Maybe the things that the plaintiff says he cannot do are things that your juror does with their condition every day and will do during the whole trial. Conversely, you do not want a juror who has had an injury or has a family member or friend who has had an injury similar to the one in the case. Ask questions until you are satisfied that they have no bias or may lean towards your client a bit. Find out if they brought a lawsuit
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for those injuries. Were they satisfied with the result? Did that person have surgery? Are they fully functional now? They may not be sympathetic to plaintiff’s claims of constant debilitating pain if they have gone back to work or can exercise and perform daily activities. Use your Neurosurgical expert to teach them in the Courtroom-
Next, you must use your neurosurgical expert as the teacher in the Courtroom. It is important to spend some time on in person with your expert, to see if they are able to speak about the issues in your case in layperson’s language. You want an expert with good credentials who is personable and can clearly explain the human body parts involved, the process by which the plaintiff claims that he was injured, and the reasons why his/her injury was not caused by the accident claimed. Make sure that your expert regularly performs the same surgery that is at issue in the case. You do not want to watch your expert on the stand admit that while he watched a couple of spinal fusions during his internship, his practice and his publications focus on another medical issue entirely, and they are not qualified to rebut the claims of plaintiff’s expert or treating physician that they are calling as an expert.
Have your expert get off the witness stand, so that they are at the same level as your jury. Use visual aids such as models, medical illustrations, films, videos, surveillance footage, to allow your expert to “teach” your jury about the anatomy and why this plaintiff did not injure their spine, etc., based on the MRI which shows degenerative changes, or why they do not have a neurological injury, based on their normal walking and bending pattern on surveillance.
MAKE SURE that you always provide your expert with all of the file materials including
pleadings, depositions, all medical records (related or not), surveillance video, videotape of the incident, Worker’s Comp and pharmacy records, PT, EMG’s, and studies or examinations of the plaintiff. Plaintiff’s firms frequently send only hand-picked parts of records to their experts. When conducting your cross-examination of plaintiff’s expert, ask him if he reviewed all of the above. If he did not, make him look foolish and one-sided by asking him how he can come to Court and swear before the Court and jury that he is giving an opinion when he did not bother to read the records from plaintiff’s prior motor vehicle accident, or the deposition testimony by the plaintiff, or whatever he/she missed.
Spend time with your expert running through his/her presentation, and make sure that
you have questions that you can insert into your direct examination to keep the show going, in case plaintiff’s counsel objects to a “narrative” by your expert as he demonstrates what is important. Jurors learn well and enjoy being shown visual aids. This will make them feel as if you are bringing them the tools they need to understand the medicine. Making a jury feel as if they have learned some difficult medicine makes them feel smart, which in turn makes them feel good about themselves, and if it was you who made them feel good, they will like you and trust you and your expert.
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2. WHAT KINDS OF CASES ARE YOU USING A NEUROSURGEON FOR?
Many, if not most of our cases, whether they are motor vehicle accidents, slip and falls, construction cases, involve a claim of a spinal or nerve root injury. If they do, you can be fairly sure that they were “referred to a surgeon by a friend” (after they retained counsel) and underwent a spinal fusion surgery. While many of plaintiffs’ experts who treat these types of injuries are orthopedic surgeons, neurosurgeons can be retained who also perform spinal surgeries. Retaining a neurosurgeon in a spinal injury case is powerful, because they do the same types of surgeries, they read their own films, (although you may want a radiology expert in addition, depending on what plaintiff has), and they understand the entire nervous system from head to toe.
Neurosurgeons can also be used for cases involving head trauma, TBI, subdural hematomas, strokes, or any type of neurological injury. A neurosurgeon has a certain gravitas lacking in an orthopedic surgeon. Their practice focuses on the nerves, while an orthopedic surgeon does not. When you call a neurosurgical expert to oppose plaintiff’s spinal surgery expert, your direct examination of your expert can be used to make him look as if he has more overall knowledge of the neurological system than an orthopedist. Their examination of the plaintiff is going to contain a more comprehensive evaluation of neurological signs than an orthopedist. You can also use that on cross-examination of plaintiff’s orthopedic spinal expert to get them to admit that they are not Board Certified in Neurology or Neurosurgery, which you can argue makes their opinion less valuable than that of your neurosurgeon.
3. USE TREATING PHYSICIANS AS YOUR “EXPERTS.”
The best possible person to put on the stand if their opinion or records support your
defense is a treating physician of the plaintiff. They have no interest in the outcome, and may come into court without getting paid, or by getting paid a small stipend for their time away from their practice, which allows you to argue that they are unbiased and are simply giving their observations. A treating physician does not mean the physician who performed an IME, as they are not “treating physicians,” but it does mean a physician who was treating a patient for an underlying condition which may have affected them or gives an alternative cause for their claimed injuries, either before or after the date of incident. For example, you should consider using an endocrinologist who has treated or is treating the plaintiff for uncontrolled diabetes if your defense is that they have diabetic neuropathy instead of a neurological injury. You can then allow your neurosurgical expert to read his records and deposition transcript in order to prepare them for their testimony and have them comment on that doctor’s findings.
Arons authorizations are an extremely powerful tool for the defense that are under-
utilized. How do you use this tool? Before HIPAA, you were allowed to directly contact any physician post Note of Issue who had treated plaintiff and discuss their care with them if they were willing. Now, you need an Arons authorization, pursuant to the case of Arons v. Jutkowitz, 9 N.Y.3d 393, 850 N.Y.S.2d 345 (Court of Appeals 2007), which allows you to speak to any of the
4
plaintiff’s physicians if you have the proper authorization. A sample Arons authorization is attached.
In a recent case that I handled, plaintiff claimed that she sustained a severe injury
including TBI and an intracranial bleed which required evacuation after she allegedly hit her head on a door due to a loose door saddle. Her primary care physician’s records documented that she had presented to their office on the date of incident, never mentioned a head trauma, but did tell her doctor that she had premonitory signs of a stroke including a numb arm for several weeks. This physician was served with a special authorization to discuss her treatment of the plaintiff which suggested that she had an ongoing neurological condition, including a history of falls since childhood, and also provided another cause for her intracranial bleed, which was a stroke. This was very helpful in obtaining a successful resolution of the case.
Obviously, plaintiff’s counsel has an advantage, as their client can give them permission
to speak to any treating physician without a special authorization. You, as defense counsel, need to make sure that you demand plaintiff’s primary care physician’s records, as well as anyone who may have provided treatment that could help your defense. This could include the EMT’s that transported the plaintiff to the hospital, the Triage Nurse or Attending physicians in the Emergency Room, or any doctors that the plaintiff saw before he/she retained counsel and was routed to a surgeon who is probably testifying as plaintiff’s expert. You cannot demand or use an Arons authorization that is made out to a medical facility or a practice group. It must be made out for a specific physician. Look at the records early on, and see what treating physicians may provide you with helpful information for the defense. Do not accept authorizations that begin on the date of incident. Try and obtain authorizations that pre-date the incident claimed to see whether the plaintiff has a history that is relevant to your defense.
In medical malpractice cases, Arons authorizations are routinely used, but this needs to
be done more in general negligence, Labor Law and other types of cases. AN ARONS AUTHORIZATION IS COMPLETELY DIFFERENT FROM A TRIAL AUTHORIZATION. DEMANDS FOR ARONS AUTHORIZATIONS SHOULD BE SERVED EARLY-ON IN LITIGATION AND ONCE RECEIVED, ATTEMPTS SHOULD BE MADE BY TELEPHONE BY THE HANDLING ATTORNEY TO REQUEST 5-10 MINUTES TO DISCUSS THE PLAINTIFF’S CARE. (It is never only 5-10 minutes once you get there). If the treating physician talks to you and says something that is helpful to the defense, such as an alternate cause for the injury, you should consider locking down their testimony in a deposition before discovery is completed.
USE ARONS AUTHORIZATIONS EARLY AND OFTEN, and ask the physician if he has any additional records, patient history forms filled out by the plaintiff, films or videos, as they frequently have things that are not contained in the records that you received through a regular authorization.
If you find something in a treating doctor’s records that clearly helps your defense, and you can either not obtain an Arons authorization or they will not agree to speak to you, subpoena them pre-Note of Issue for a non-party deposition. That way, you can read the
5
transcript at trial, or subpoena them to testify for you at trial. If you speak to a physician through the use of an Arons authorization, depose them before the Note of Issue is filed. Plaintiff will be successful in blocking you from taking a deposition of anyone after the Note of Issue. You need that testimony locked down in admissible form as soon as possible for potential mediation, settlement negotiations or to preserve it for trial in case the doctor will not come to court, moves away, or is otherwise unavailable. An affidavit cannot come in at trial without a witness, so obtaining an affidavit from a treating physician is useless.
4. PHARMACY RECORDS OR MEDICATIONS PRESCRIBED PRIOR TO DATE OF INCIDENT
When reviewing medical records, especially from prior treating physicians or even the Emergency Room records which list all medications that the plaintiff was taking prior to the incident, LOOK THEM UP, and look up all potential side effects. Many medications have side-effects which cause dizziness, vertigo, or other conditions which may be relevant to how the plaintiff was initially injured. Do not just list them in a medical chronology that will be buried in your file. Discuss these medications with your expert, and see whether they can opine as to the potential effects of the drug on the plaintiff’s accident.
5. CROSS-EXAMINATION OF PLAINTIFF’S EXPERT
Plaintiff’s experts are more expensive than defendants’ experts. They frequently do not review or are not even provided with the complete medical file of the plaintiff before they testify. Use that on cross-examination to discredit them. They are rarely advised of prior injuries of the plaintiff, including old motor vehicle accidents, law suits, or Workers Comp claims. This is great fodder for cross-examination, again showing how the plaintiff’s own expert did not review all of the relevant records and can therefore not be relied upon to give a thorough and accurate opinion.
If you know that plaintiff is calling a neurosurgeon as an expert, ask your expert about him/her. It is a small community. You may find out things about them that you can use on cross-examination. Find out who trained plaintiff’s expert during their residency. Retain that doctor as your expert if possible. There is nothing more fun than asking plaintiff’s expert if he trained under Dr. X, and isn’t it true that everything he knows, he learned from the expert that is coming in for you. This is especially effective in medical malpractice cases.
6. DO YOUR INVESTIGATION
Make sure that you do a CIB (Central Index Bureau) search of the plaintiff and search for prior lawsuits that they have been involved in. Get a copy of the pleadings, xerox the Court envelope with the index number, search in e-law for prior lawsuits and if possible, get the entire court file, contact prior defense counsel, ask them for old depositions. Get all of this information and provide it to your expert so that she can comment on it at trial.
6
7. USE YOUR NEUROSURGICAL EXPERT TO ATTACK THE ISSUE OF PROXIMATE CAUSE
Finally, be aware that plaintiffs’ attorneys want their experts to talk about the enormity
of their surgeries (a fusion takes about 45 minutes) and permanent and debilitating damages. Their job is to put on an expert who will create a picture of damages that should be met with a large verdict. You should also discuss the alleged damages through your expert, but before you get to damages, even in a strict liability case, plaintiff also has to prove proximate cause. This is where the CIB search, the search for other lawsuits or accidents, and the interviews of plaintiff’s other physicians as described above become crucial. If you can show that the plaintiff had a prior injury of the same body part, that the complaints he made at his IME do not match the levels of the spinal injury that he is claiming, or that their head trauma could not have been caused by the incident claimed, then the jury may never get to damages. This is where your expert’s “demonstration” can be very effective.
Good luck!
UCS-575 (2/08)
AUTHORIZATION TO PERMIT INTERVIEW OF TREATING PHYSICIAN BY DEFENSE COUNSEL
TO: Physician’s name and address
You are hereby authorized to discuss certain medical condition(s) involving: with
Patient’s name who is an attorney
Defense Attorney’s Name and Address
representing in a Defendant’s name Type of Lawsuit
brought by against Plaintiff(s) Name Defendant(s)
The lawsuit is currently pending and is at Stage of Proceeding
YOU ARE PERMITTED TO DISCUSS ONLY THE FOLLOWING MEDICAL CONDITIONS WHICH ARE THESUBJECT MATTER OF THE AFOREMENTIONED LAWSUIT:
1. NOTHING CONTAINED HEREIN AUTHORIZES YOU TO DISCUSS ANYTHING ABOUT THIS PATIENT OTHERTHAN THE ABOVE-STATED MEDICAL CONDITIONS.
2. THE PURPOSE OF THIS INTERVIEW IS TO ASSIST THE DEFENDANT(S) IN THE DEFENSE OF THISLAWSUIT BROUGHT BY THIS PATIENT. THIS AUTHORIZATION IS NOT AT THE REQUEST OF YOURPATIENT.
3. YOUR WILLINGNESS TO PARTICIPATE IN THIS INTERVIEW IS ENTIRELY VOLUNTARY. YOU ARE FREETO DECLINE THE REQUEST FOR SAID INTERVIEW.
4. You are permitted to disclose information relating to ALCOHOL and DRUG ABUSE, MENTAL HEALTH TREATMENT, exceptpsychotherapy notes, and CONFIDENTIAL HIV RELATED INFORMATION only if specifically initialed below: (Indicate by Initialing): Alcohol/Drug Treatment; Mental Health Information; HIV-Related Information
5. If I am authorizing the release of HIV-related, alcohol or drug treatment, or mental health treatment information, the recipientis prohibited from redisclosing such information without my authorization unless permitted to do so under federal or state law. Iunderstand that I have the right to request a list of people who may receive or use my HIV-related information without authorization.If I experience discrimination because of the release or disclosure of HIV-related information, I may contact the New York StateDivision of Human Rights at (212) 480-2493 or the New York City Commission of Human Rights at (212) 306-7450. Theseagencies are responsible for protecting my rights.
6. I have the right to revoke this authorization at any time by writing to the health care provider listed. I understand that I mayrevoke this authorization except to the extent that action has already been taken based on this authorization.
7. I understand that signing this authorization is voluntary. My treatment, payment, enrollment in a health plan, or eligibility forbenefits will not be conditioned upon my authorization of this disclosure.
8. Information disclosed under this authorization might be redisclosed by the recipient (except as noted in Item 5 above), and thisredisclosure may no longer be protected by federal or state law.
9. If not the patient, name of person signing form:
10. Authority to sign on behalf of patient:
11.Date this authorization will expire:
Signature Date
Sean F.X. Dugan Sean F.X. Dugan is a Senior Partner at Martin Clearwater & Bell, LLP in New York. Mr. Dugan’s 42+ years of civil trial experience include representing individual physicians, large and small medical and physician groups, and various health care professionals and institutions in all aspects of medical malpractice, professional liability, and product liability claims. He is a member and past President of the N.Y.C. chapter of the American Board of Trial Advocates, and a member of the Association for Healthcare Risk Management of New York. He is certified as a Civil Trial Advocate by the National Board of Trial Advocacy and as a Charter Fellow by the Litigation Counsel of America. Mr. Dugan received his law degree from Brooklyn Law School and his LL.M. in Environmental Law from Pace University.
CURRICULUM VITAE
Christopher Allyn Lycette (October 2020)
Date of Birth: October 21, 1968 Licensure: Medical Board of Pennsylvania Employment: Lehigh Valley Physicians Group/ Lehigh Valley Hospital (since 9/2004) Title: Neurosurgeon and Trauma Surgeon Co-chief Spine Division Lehigh Valley Hospital Office Address: Neurosurgical Associates Center for Advanced Health Care Neuroscience Center 1250 South Cedar Crest Blvd, Suite 400 Allentown, PA 18103 Training: Complex and minimally-invasive spinal surgery fellowship, Cedars-Sinai Medical Center, Los Angeles 11/03-7/04 Intra-residency spine fellowship at UCLA, 7/01-12/01.
UCLA Neurosurgical Residency, 7/98-10/03; UCLA Internship in General Surgery, 6/97-6/98 Education: Columbia University School of Physicians & Surgeons M.D., attended 1992-1997 Harvard University School of Medicine, Brigham & Women’s Hospital Medical researcher 1990-1992, bone cell biology University of Massachusetts B.S., Zoology major, attended 1986-1990 St. John’s Preparatory School Danvers, MA 1982-1986 Certification: American Board of Neurological Surgery, oral boards Passed on first attempt 5/09 American Board of Neurological Surgery, written exam Passed on first attempt 2002
USMLE , Parts I, II, III – completed 1998 Societies: American Association of Neurological Surgeons Congress of Neurological Surgeons Joint Section on Spine and Peripheral Nerves, AANS/CNS Joint Section of Neurological Trauma, AANS/CNS North American Spine Society
Honors: Neurosurgery Resident Leadership Program Award, Munich, Germany 2002
National Neurosurgery Resident Research Award, Congress of Neurological Surgery 2000 NIH Senior Research Fellowship, 1995-1996 Arthritis Foundation Prize for Medical Student Summer Research, 1993 Research Experience: 1. New spinal device utilization one screw per vertebra for spinal fusion, 2006-Present, Lehigh Valley Hospital Principal Investigator 2. Cervical artificial disc study, 2 levels, 2006-Present, Lehigh Valley Hospital Principal Investigator 3. Neurosurgery using intraoperative MRI, 1998- 2003, UCLA, Division of Neurosurgery, Los Angeles
4. Brain tumor treatment using retroviral immunotherapy, 1995-7. Columbia P&S, Neurosurgical Dept., New York City
5. Investigation of failed hip replacements focusing on osteoclast activation, summer of 1993. Hospital for Special Surgery, Dept. of Orthopedic Surgery, New York City
6. Study of demineralized bone and its potential clinical applications, 1990-2. Brigham & Women’s Hospital, Dept of Orthopedic Surgery, Boston
Presentations: Lycette C, “New spinal device using one screw per vertebra.” AANS/CNS spine section, Phoenix, AZ 3/2007 (Oral
Presentation) Lycette C, “C2 fractures in the elderly treated with odontoid screw.” AANS/CNS spine section, Orlando, FL 3/2006 (Poster Presentation)
Lycette C, “The cost of neurosurgical care for gunshot wounds at a level one hospital in Los Angeles.” Congress of Neurological Surgeons, Denver, CO 10/2003 (Oral presentation)
Lycette C, “Intraoperative MRI at UCLA.” Conference on functional and image-guided surgery, Los Angeles, CA 10/2002 (Oral presentation)
Lycette C, Rubino G, et al. “Quantitative comparison of tumor resection and survival for iMR vs. frameless neuronavigation.” Congress of
Neurological Surgeons. Philadelphia, PA 9/2002. (Oral presentation)
Rubino G, Lycette C, et al. “Assessment of new rotating surgical table and head holder used for iMR-guided neurosurgery.” Congress of Neurological Surgeons. San Antonio, TX 9/2000. (Poster) Lycette C, Rubino G, et al. “Extent of high-grade glioma resection for iMR-guided surgery vs. frameless neuronavigation.” Congress of Neurological Surgeons. San Antonio, TX. 9/2000. (Poster)
Lycette C, Rubino G, et al. “Comparison of hospital costs for iMR- guided neurosurgery vs. frameless neuronavigation.” Congress of Neurological Surgeons. San Antonio, TX. 9/2000 (Oral presentation and award)
Lycette C, Rubino G, et al. “Comparison of hospital charges for iMR guided surgery vs. frameless neuronavigation.” International Society for Magnetic Resonance in Medicine. Denver, CO. 4/2000 (Oral presentation)
Lycette C, Rubino G, et al. “Spread of contrast enhancement observed in high grade gliomas in a non-operative setting.” International Society for Magnetic Resonance in Medicine. Denver, CO. 4/2000 (Poster presentation)
Rubino G, Lycette C, et al. “Quantitative analysis of brain shift during iMR-guided removal of brain tumors.” American Association of
Neurological Surgeons. San Francisco, CA. 4/2000 (Poster presentation)
Rubino G, Lycette C, et al. “Spread of contrast enhancement on MRI Observed in high-grade gliomas in a non-operative setting.” American Association of Neurological Surgeons. San Francisco, CA. 4/2000 (Poster presentation) Birch B, Lycette C, et al. “ICP monitoring and infusate distribution in intratumoral microinfusion in the rat.” Congress of Neurological Surgeons. 9/1996 (Poster presentation) Mizuno S, Lycette C, et al. “In vitro analysis of chondroinduction using a collagen/dbp sponge system.” Am. Society of Cell Biology. 1991 (Oral presentation) Publications: Lycette C, Liau L, et al. “Immunotherapy of brain tumors.” In Wilkins RH, Rengachary SS, (eds) Neurosurgery, fourth edition; New York, McGraw-Hill; 2002, in press. Lycette C, McBride DQ, et al. “Neurosurgical critical care.” In Bongard F, and Sue DY, (eds) Current Critical Care Diagnosis and Treatment, second edition; New York, McGraw-Hill; 2002, in press.
Rubino G, Lycette C, et al. “Interventional magnetic resonance imaging guided neurosurgery - the UCLA experience with the first 100 cases.” Electromedica 68: 37- 46, 2001
Birch BD, Lycette C, et al. “Frequent type 2 neurofibromatosis gene Transcript mutations in sporadic intramedullary spinal cord Ependymomas.” Neurosurgery 39: 135-140, 1996. Duong H, Lycette C, et al. “Gugliemi detachable coil treatment of a superior MCA aneurysm.” Journal of Neurovascular Disease 1: 33-39, 1996. Schwartz T, Lycette C, et al. “A case of midbrain lacunar infarction associated with anti-cardiolipin antibodies.” British Journal of Neurology, Neurosurgery & Psychiatry 59: 338, 1995.
Glowacki J, Lycette C, et al. “Osteoclast precursors and interleukin-6 production by human bone marrow: modulation by estrogen and age.” J. Bone Min. Res. 7: S316, 1992. Mizuno S, Lycette C, et al. “A collagen/dbp system for in vitro analysis of chondroinduction.” Materials Research Society 252: 133-140, 1991. Glowacki J, Lycette C, et al. “Models to investigate anti-osteogenic and anti-resorptive effects of bisphosphonates.” J. of Bone and Min. Res. 7: 5316, 1992.
CURRICULUM VITAE
CHRISTOPHER J. DONADIO
Gair, Gair, Conason, et al. 80 Pine Street, 34th Floor
New York, NY 10005 (212) 943-1090
[email protected] Education B.A., Boston College, 2004 J.D., Duke Law School, 2007 Professional Employment Gair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman & Mackauf Partner, 2015-present Burns & Harris Associate, 2009-2015 Wolff & Samson Associate, 2007-2009 Bar Admissions New York, 2008 New Jersey, 2007 U.S. District Court of New Jersey, 2007 U.S. District Court Southern District of New York, 2008 U.S. District Court Eastern District of New York, 2009 U.S. Court of Appeals, Second Circuit, 2013 Professional Memberships New York State Trial Lawyers’ Association American Association for Justice American Board of Trial Advocates The National Trial Lawyers: Top 40 Under 40 New Jersey Association for Justice
Awards/Honors New York Metro SuperLawyers Rising Star, 2013-present Best Lawyers in America, 2018-present Top 40 Under 40 Trial Lawyers of New York, 2017 Lectures “What Every Judge Needs to Know About Issues in Medical Malpractice and Personal Injury Cases” – New York State Judicial Summer Seminars, 2019 “Should Dystocia: Examining the Latest Claims and Management of Key Risk Factors” – ACI’s Obstetric Malpractice Claims Conference, 2019 “From Voir Dire to Verdict: Trying a Personal Injury Case” – New York County Lawyers Association, 2019 “Helping the Jury Understand Damages” – New Jersey Association for Justice, Boardwalk Seminar, 2018 “Biomechanical Expert Frye Hearings: A Plaintiff’s Perspective” – DANY-ABOTA Frye Seminar, 2018 “Decisions in Trial Practice, 2018” – New York State Trial Lawyers’ Association, Decision Seminar, 2018 “Getting Around the Qualified Immunity Defense” – American Association for Justice, Winter Convention, 2017
JENNINE A. GERRARD, ESQ. Summary:
• Trial attorney who in a 25-year career has tried cases in all 5 boroughs of New York as well as Rockland, Orange, Nassau, Suffolk and Westchester counties. Experience includes defending high exposure cases in medical and dental malpractice, nursing home defense, general litigation, labor law, products liability, motor vehicle accidents, and large loss property damage cases.
• Appellate representation and oral argument in New York State.
Admissions: New York State; Federal Court admission to the Southern & Eastern Districts of New York. Current Employment: Trial Partner for Lewis Brisbois Bisgaard & Smith Trial Counsel in varied civil practice in general liability, medical malpractice, labor law, automobile accident litigation, wrongful death cases, bus vs. pedestrian cases, products liability and various insurance defense matters. Career Highlights: Litigation in high exposure cases in New York State and Federal courts. Jury trials, bench trials, depositions, motion practice and appeals. Accomplishments include successful trials, appeals, summary judgment and mediation outcomes. Ms. Gerrard’s extensive litigation experience involves representing doctors, dentists, hospitals, PA’s, nurses and nursing homes, HMOs, both large and small corporations, property owners, construction companies and contractors in matters involving all types of personal injury, malpractice, wrongful death, insurance defense, motor vehicle, labor law, products liability and large loss property damage cases. Ms. Gerrard has successfully resolved numerous matters through negotiation, motion practice, mediation, trial and appeal.
Ms. Gerrard has extensive experience representing physicians at disciplinary proceedings with the Office of Professional Medical Conduct in addition to representing nurses and other health care professionals in disciplinary hearings within the New York State Professional Misconduct System.
Most Satisfying Result: Obtained a 9 out of 10 juror defense “win” in an eight figure exposure, two month long medical malpractice case (Nassau County, New York) defending a neurologist in a catastrophic injury case involving a rare intracranial vascular disease. While the carrier settled the case just before summations, the Judge charged the jury anyway and polled them
2
for their decisions. They were prepared to hand down a defense verdict. The star witness was a subsequent treating neurosurgeon. AUTHORSHIPS:
• “JUMP- The Benefits of Taking the Plunge for Women Attorneys” DRI, The Voice of the Defense Bar, Women in the Law, Volume 3, Issue 2.
MEMBERSHIPS:
Diplomate of the American Board of Trial Advocates (ABOTA) Member of the New York Medical Malpractice Defense Bar Association
PRE ADMISSION LEGAL EXPERIENCE: New York City Law Department, SLAMM Unit Student Legal Specialist in Special Litigation and Medical Malpractice Unit throughout law school. Defended City Hospitals in Bronx County and EMS in complex medical malpractice cases from inception to trial. Conducted 50-h hearings, depositions, wrote motions and appellate briefs. Was the second-chair attorney in a two-month long trial regarding catastrophic injuries to a child that resulted in the largest verdict against the City of New York at the time, wrote post-trial motion to set aside the verdict which was granted and upheld by the Second Department. Wrote, argued and won motion to bar infant plaintiff from the Courthouse during liability portion of trial as his appearance would have been too prejudicial and he could not participate in the prosecution of case due to traumatic brain injury. EDUCATION: Vassar College, B.A. in Classical Studies, 1987 Stanford Intercollegiate Center for Classical Studies in Rome, Italy, 1985-86. New York Law School, J.D., 1994.
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