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Personal injury lawsuits are not resolved overnight. It can take months or even years for a case to be settled and for victims to see any sort of compensation for their injuries. During the process, the claims you originally filed could be altered, added, or dropped.
However, even if those things happen, it doesn’t mean that the case itself will end. That is exactly what is happening on a case currently going on in New York.
In April 2012, Regina Kenny went to a Mount Sinai hospital in order to get a spinal fusion surgery pain. It was the second surgery she had received that year for lower back pain. When the April surgery was completed, however, she realized that she had developed “drop foot” – she’d lost the ability to lift the front part of her foot.
Kenny took the hospital and the surgeon to court for medical malpractice. She claimed that the surgeon performed a botched surgery, and that she was not properly informed of the risks associated with the surgery. Kenny also claimed that she was not a proper candidate and should not have been considered for the surgery in the first place. These are typical claims associated with medical malpractice cases, but certainly a lot to tackle as the defendant.
The trial recently made headlines because some of Kenny’s claims were dropped. What happened? The defendant presented evidence that Kenny had been informed of the risks associated with the surgery before it began. Moreover, Kenny signed consent forms saying she understood these risks back in January 2012.
On to claim number two: should Kenny have received the surgery in the first place?
Even with an expert witness to back up Kenny’s claims, the judge still said she was an appropriate candidate for the spinal fusion surgery. The reason? The surgeon had previously diagnosed Kenny with stenosis and spondylosis, and spinal fusion is an appropriate treatment for these conditions. The judge also referred to the fact that Kenny’s expert witness, Dr. Donald Frank, stated that without abnormalities or proof that would say otherwise, the diagnoses were appropriate for Kenny.
Only one claim left: did the surgeon botch the surgery?
Kenny’s expert witness did come through in providing proof that the surgery could have been performed incorrectly. Dr. Frank pointed out that during the surgery, a “cage” had to be placed around the lower neck, but it could have been placed incorrectly and shifted during the surgery. Dr. Frank noted that this could be proof that the surgeon did not have the proper skills to perform the surgery.
In addition to this, Dr. Frank was able to negate some of the proof provided by the defendant’s expert witness. The defense provided a CT scan that was meant to show the surgeon operated according to the proper standard of care, but Dr. Frank pointed out that the image was obscured, and the CT scan was struck from the evidence.
Because the defendant was unable to disprove Kenny’s final claim, the New York County Supreme Court has allowed the case to move forward. There will still be some time in deliberation before a final decision is reached, but the recent decisions made by the Supreme Court will definitely speed up the process.
The bottom line? It’s a lot easier to make a claim than it is to prove one, and if you don’t use all of the available information to make your claims, all it is likely to do is extend the process and waste your time. Before making their claims, Kenny and her lawyer should have done the necessary research to make sure that she hadn’t signed consent forms notifying her of the risk at the very least.
They did make some good decisions, though, notably using an expert witness like Dr. Frank. His testimony appears to have been key in providing evidence that her surgery may have been botched, thus far the only reason the case is going forward.
Expert witnesses are excellent resources when making claims about things like improper medical techniques, defective medication, and more. If you are preparing to file a lawsuit for medical malpractice, contact a New York medical malpractice lawyer as soon as possible.
