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Malpractice Plaintiff's $1.3M Jury Verdict Tossed Out By Court - "So What" Defense Prevails

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

Ronald C. Burke, Esq

Trial Attorney with 30+ Years of Experience Attorney Ronald C. Burke, Esq. has more than 30 years of experience and has focused his career on representing clients in cases involving personal injury, medical malpractice and legal malpractice. He is a seasoned trial lawyer and has won many seven-figure settlements and verdicts for his clients over the years, including many case victories listed among the largest in the history of the New York State. He has been featured in the news and is a regular lecturer for the New York County Lawyers Association, as well as having lectured before the New York State Bar Association. Ron is also an attorney with Kelner & Kelner, a New York personal injury law firm. Awards and Accolades Mr. Burke's awards and accolades are many. Among them, he has been included in New York Super Lawyers® each year since 2010, and he has received the highest-possible AV® Rating from Martindale-Hubbell®. Verdict Search, a part of the New York Law Journal, frequently recognizes his notable successes after winning some of the highest settlements and verdicts in past years. He was also featured in their list of the "Top New York Verdicts of 2011" and "Top New York Settlements of 2012." He is a member of the New York State Bar Association and is licensed to practice law in the U.S. District Court for the Southern and Eastern Districts of New York, as well as before the United States Supreme Court. When Attorney Burke is not handling legal malpractice cases, he is highly involved in the local community. He is a member of the Village of Rockville Centre Volunteer Fire Department, has served on the local school board and as Chairman of the local Zoning Board. Learn more about Attorney Burke and how he can skillfully handle your malpractice case by contacting the Law Offices of Ronald C. Burke, Esq. right away to schedule your complimentary case evaluation. Our firm is here to help! Contact a New York Legal Malpractice Attorney Our firm provides each client's case with thorough preparation and aggressive representation, ensuring that you win the best possible results for your case whether it is settled or goes to trial. As a seasoned trial lawyer, Mr. Burke can provide the strong and relentless representation you need to establish negligence in a legal malpractice case and to recover any damages you may have suffered. Our firm can recover compensation for pre-trial and trial malpractice, violations of fee arrangements, loss of income, pain and suffering, and much more. Contact us today!

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