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Ben RubinowitzNathan Werksman

Ben Rubinowitz · Nathan Werksman

$120 Million Verdict - Medical Malpractice

TLU Icon January 10, 2024 6:30 PM||TLU n Demand

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Lee v Westchester Medical Center

The case involved a 41-year-old man who suffered a Basilar artery stroke. His wife, who had last seen her husband at 10 pm heard a “thud” at 3 am the next morning. She then ran into the bathroom and found her husband unconscious and covered in vomit. She called 911. Her husband was emergently transferred to Westchester Medical Center, a Level One trauma center and certified stroke center. There, the admitting diagnosis was a stroke and he was appropriately worked up for that condition. However, the reading radiologist and neurologist, both of whom were residents, misread the CAT scan angiography, ruled out stroke and worked him up for infection and dissection. It was not until 3 hours later when the CTA was reread by a more experienced radiologist that the diagnosis was made and appropriate treatment given (a thrombectomy).

Our claim was that as a result of the misread, plaintiff’s treatment was delayed for three hours. Our claim was that delay in treatment resulted in significant brain damage causing severe short term memory issues — that the delay deprived plaintiff of a chance of a better recovery. Although the defense tried at first to dispute the misread they eventually conceded the point. The thrust of the defense was causation — that the doctors did not cause the stroke and that all of the damage had already been done between 10 pm and the time of arrival to the hospital. The defense called expert witnesses to explain that all of the memory issues were due to the severity of the stroke itself, that it involved a major artery providing blood and nourishment to the brain and that earlier treatment would not have allowed for a better outcome.


Concerns — How to deal with them
Respect for doctors
Complicated issues
Damages — prep for large award
Use of answers from jury selection on summation

Admit what the defendants did right
Spell out what they did wrong
Develop a case frame
No notes
Use of analogies to explain complicated medical issues
Tell the jurors what you want

Call the defendants. Adverse direct exam
Use of medical illustrations
Defining terms
Securing admissions
Tracking the language in the court’s charge
Dealing with departures and causation

Set the witness up, knock the witness down
Use of exhibits
Collateral attack
Use of prior testimony

Answering the defense points
Working with missing witnesses
Use of exhibits during summation
Powerful argument
Asking for money damages
Pain and Suffering
Loss of consortium

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