On September 11, 2019, an appellate court agreed that a Queens County jury verdict in favor of a patient, finding that an orthopedist's one month delay in advising a post-op patient of the need for further spinal surgery was inconsequential. The defendant orthopedic surgeon had performed a two level lumbar discectomy and decompression surgery on the patient to relieve intractable pain. One month after surgery, imaging studies revealed that the patient would likely need a second surgery. All parties agreed that at the first op visit the orthopedist did not advise the patient of her surgical options but at the two month post op visit he did. The patient had a second spinal surgery by another surgeon 9 months after the first surgery, which did little to improve her complaints.

The jury found that the orthopedic surgeon departed from accepted practices for failing to advise the patient of her surgical treatment options at the first one month post op visit and that an 8 month delay in revision surgery resulted in a worse outcome. The jury awarded the patient $1,305,000.00. However, the trial court agreed with defense counsel who pointed out that: 1) even plaintiff agreed she was told about her surgical treatment options at the visit one month after the post op MRI images revealed surgery was indicated; and, 2) there was no evidence to show that a one month delay was a substantial factor in causing the patient a "worse outcome". Essentially, the "So What" defense common to any legal or medical malpractice litigation prevailed here. The Court's will reject a jury verdict for the plaintiff when it is premised on a minimal, inconsequential delay. What went wrong here was the plaintiff's expert was asked for his/her opinions assuming there was an 8 month delay - when the evidence showed only a 1 month delay. Mi Jung v Lewin, 2019 WL 4281928