On September 21, 2022, Gary W. Patterson, Jr. secured a unanimous defense verdict before Justice Thomas Zugibe of the Supreme Court, Rockland County. Christian McCarthy served as second chair counsel to Mr. Patterson. Plaintiff claimed the defendant, an orthopedic surgeon, negligently performed a biceps tenodesis, leading to nerve injury. The surgeon had misidentified a variant musculocutaneous/median nerve for the biceps tendon and anchored it to the humerus bone. Post-operatively, the 62 year old female plaintiff was diagnosed with severe brachial plexopathy in her dominant arm She underwent repair surgery, requiring sural nerve harvesting and grafting. The plaintiff was later diagnosed with complex regional pain syndrome, requiring multiple nerve blocks, further nerve repair surgery, and continued motor/sensory deficits in the median nerve distribution.
Prior to opening statements, Appellate Counsel, Adonaid C. Medina, drafted a motion in limine to preclude introduction of evidence relating to the complex regional pain syndrome, nerve blocks and the need for further surgery, as these claims were not pled in the Bill of Particulars. Justice Zugibe granted the motion after reviewing the papers and hearing Mr. Patterson’s oral arguments.
Plaintiff’s Harvard trained orthopedic surgery expert argued that the defendant physician failed to perform a careful inspection of the structure before anchoring it to the bone. The expert further opined that the surgeon negligently brought the nerve into the operative window, leading to the confusion. Mr. Patterson vigorously cross-examined the expert, obtaining several critical concessions. The defense called an orthopedic surgery expert who testified that the defendant surgeon reasonably concluded that the structure found in the operative window was indeed the biceps tendon. The expert reasoned that because of the variant anatomy, the nerve was travelling laterally, placing it within the operative window. It was also larger than normal, further contributing to the misidentification. On damages, Mr. Patterson effectively challenged the plaintiff’s credibility on cross-examination, demonstrating to the jury that she was able to write legibly, despite claims to the contrary on direct.
In closing arguments, plaintiff’s counsel sought $3 million in past/future pain and suffering, in addition to lost earnings. The jury returned a unanimous defense verdict after a brief deliberation.