Following are representative cases that Gordon & Silber attorneys have defended. Click on the names to view details.

Riley v. Phelps Memorial Hospital, Joseph Fakhry, M.D.
Supreme Court, Westchester County
Defendant's Verdict

Condelles v. Nyack
Supreme Court, Rockland County
Defendant's Verdict

Cronin v. Yonkers Board of Education
Federal Court, Southern District of New York
Defendant's Verdict

Marzuillo v. Schulman
Supreme Court, Kings County
Defendant's Verdict

Kaffka v. DeGann
Supreme Court, New York County
Defendant's Verdict

Gambardella v. Wegener
Supreme Court, Rockland County
Defendant's Verdict

Brownell v. New York City Housing Authority
Supreme Court, New York County
Defendant's Verdict (The jury found the City of New York
   100% responsible)

Fader v. Cabrini Medical Center
Supreme Court, New York County
Defendant's Verdict

Riley v. Phelps Memorial Hospital, Joseph Fakhry, M.D.
Supreme Court, Westchester County

Plaintiff's allegations:

Plaintiff, a 45-year-old man earning $40,000 a year, with a wife and three year old son, was sent to Phelps Memorial Hospital's Department of Radiology by his primary care physician (nonparty) with the complaint of a cough and instructions to rule out tuberculosis. A chest x-ray was taken read as normal. Plaintiff continued under the care of his primary physician for approximately 10 months and developed shoulder pain and thereafter a lump in his neck. A CAT scan and MRI lead to a diagnosis of a pan coast tumor of the top of his lung running into his neck and chest. It was inoperable. At trial, he was on an experimental chemotherapy regimen and his prognosis was very poor. Plaintiff claimed that the chest x-ray showed a clear area of abnormality and that Dr. Fakhy deviated from good and accepted medical practice by failing to make the diagnosis. As a result, there was a ten month delay in his treatment which caused the cancer to progress from a grade 1 to a grade 3B cancer.

Demand:

$3.75 million prior to trial. $4.75 demand to jury. No offer was made.

Defense position:
We presented expert testimony that the location of this cancer was not within the lung but was hidden behind bone and thus could not be seen on the chest x-ray by a radiologist. We argued that Dr. Fakhy's only contact with the plaintiff was a review of his chest x-ray to rule out tuberculosis. Dr. Fakhy's conduct stood in stark contrast with plaintiff's primary care physician, who we argued, should have made the diagnosis, even though plaintiff chose not to sue him.

Result:

Defendant's Verdict.

Significant note:

Although the plaintiff refused to sue his primary care physician, we nevertheless put his records into evidence and argued that it was plaintiff's own doctor who was negligent, not Dr. Fakhy. Another highlight of the trial, was the cross-examination of the plaintiff on the fact that, notwithstanding his lung cancer, he was seen smoking cigarettes outside the courthouse.

Condelles v. Nyack
Supreme Court, Rockland County

Plaintiff's allegations:

The decedent, a 47-year-old Safety Manager for Consolidated Edison, sought treatment on 3/15/98 at the emergency room at Nyack Hospital for a lacerated knee. His wound was cleaned and sutured and a tetanus shot ordered. He was directed to return in 10-14 days for suture removal, and to see his private physician if he developed any signs of infection. The treating physician was advised that the decedent had an aortic valve replacement in 1995 and was on coumadin. On April 24, 1998, decedent came home early from work and was generally feeling "lousy". His wife called the decedent's private physician who prescribed Tylenol. On 4/26, the decedent went to Good Samaritan Hospital ER after developing a rash all over his body, where he was diagnosed with endocarditis which had already sent emboli to his brain, spleen and liver. Staph aureus was cultured from his blood. On 4/28, he had a cardiac arrest and was resuscitated. On 5/2/98, he was transferred to Hackensack Hospital, where he ultimately suffered a cerebral hemorrhage, went into a coma and died on 5/4/98. The decedent was earning $82,000.00 a year and was survived by his wife and two teenage sons.

Plaintiff alleged that it was a departure from accepted medical practice not to administer prophylactic antibiotics in the ER knowing decedent had an artificial heart valve.

Demand:

$3.5 million. No offer was made.

Defense position:

We, and the other defendants, argued that proper protocols did not require antibiotics for a superficial wound, and that since it specifically never became infected, it could not be the source of the bacteremia which ultimately caused the fulminating endocarditis.

Result:

Defendant's Verdict.

Significant note:

We were able to show that the American Heart Association has guidelines for the administration of prophylactic antibiotics for various procedures, and that none of the guidelines refer to lacerations requiring sutures. Therefore, in the absence of guidelines, it is the clinical judgment of the physician which determines whether antibiotics should be given. The highlight of the defense was subpoenaing the subsequent treating infectious disease consultant, who did not find the history of laceration to be an important consideration with regard to the fulminating endocarditis he was treating. Since this physician was under subpoena and, accordingly, not being paid by any party, his testimony carried significant weight with the jury.

Cronin v. Yonkers Board of Education
Federal Court, Southern District of New York

Plaintiff's allegations:

A woman in her late 40s, plaintiff was denied tenure as a high school English teacher after her third year of employment. She alleged that age bias was the reason why the district wide English language coordinator had rated her unsatisfactory for three years in a row, even while her own principal and assistant principal had given her consistently satisfactory ratings, and had recommended her for tenure. She ascribed specific age-biased remarks to the coordinator, and pointed to what she considered disparate treatment, both in support and supplies, when compared with other probationary teachers in the department.

Demand:

$160,000 pre-trial. Future earnings diminution of over $300,000.

Defense position:

It was the Board's position that the detailed written assessments made by the coordinator provided specific evidence, based on in-class observations, of weak teaching, organization and communication skills which had failed to improve over the three years despite significant efforts by not only the coordinator, but the plaintiff's own department head. Plaintiff's lack of effort was supported by her failure to seek additional course training offered by the district.

Result:

Defendant's Verdict

Significant Note:

Through the testimony of the former Superintendent and Deputy Superintendent, as well as the coordinator, we were able to show that plaintiff's skill sets and lesson planning was so poor that it would have been unfair to burden both the District and future students with so mediocre a tenured teacher.

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Marzuillo v. Schulman
Supreme Court, Kings County

Plaintiff's allegations:

Plaintiff sued both his cardiac surgeon and cardiologist (our client) for devastating brain damage which he suffered after going into cardiac arrest a day after being discharged following aortic heart valve replacement. He alleged that it had been a medical deviation to discontinue an anti-arrhythmic medication which he had been on for three years before the surgery, and that the lack of this medication led to his arrest. Although he survived, he suffered significant brain damage.

Demand:

Plaintiff asked the jury for $26 million in damages.

Defense position:

It was our position that the pre-surgical medication had never been necessary, that he had no evidence of ventricular arrhythmia pre-operatively, and that the reason for his arrest was the fact that he had not taken prescribed discharge medication, and had not gone to the nearest emergency room when he first experienced evolving cardiac symptoms, but instead had driven into Manhattan to see his surgeon for an office visit.

Result:

Defendant's Verdict

Significant Note:

This verdict was the product of a coordinated defense strategy between us and counsel for the surgeon, the ability to demonstrate the absence of any pre-operative EKG evidence of arrhythmia, and strong expert testimony capable of educating the jury as to the electro-physiology of heart function.

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Kaffka v. DeGann
Supreme Court, New York County

Plaintiff's allegations:

Decedent developed a diffuse swelling under her left arm during her first pregnancy at age 41. Concluding that there was nothing abnormal, the obstetrician did nothing further. After the baby was delivered the patient developed some breast inflammation which was treated with antibiotics. When it did not resolve or respond to antibiotics she was referred to a breast surgeon. She was ultimately diagnosed with metastasized inflammatory breast cancer which plaintiff claimed could have been successfully treated if the decedent had been referred to a breast surgeon immediately.

Demand:

$1.6 million

Defense position:

This particular type of cancer is invariably fatal, regardless of when it is diagnosed, especially since the diagnosis is usually not possible until after micro-metastasis has occurred.

Result:

Defendant's Verdict

Significant Note:

This verdict (12/1/98) was listed in the National Law Journal's April 19, 1999 article reviewing "Defense: Top wins for 1998". This was the second time the case was tried. When it was first tried a multimillion dollar verdict was rendered for the plaintiff against both the obstetrician and pathologist who subsequently misread the biopsy. On appeal we succeeded in having the verdict set aside and remanded for a new trial. Since the pathologist was dismissed from the case as a result of the same appeal, the re-trial was against the obstetrician alone.

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Gambardella v. Wegener
Supreme Court, Rockland County

Plaintiff's allegations:

In this medical malpractice case lodged against a psychiatrist, plaintiff alleged that she suffered a sub-retinal hemorrhage and resultant macular degeneration as the result of taking Prozac prescribed by her psychiatrist, and that she developed early complaints which should have prompted the doctor to discontinue the medication.

Demand:

$900,000

Defense position:

The defense was that Prozac was appropriate for this patient, that there was no known, clinically established association between Prozac and eye hemorrhage, that the plaintiff's experts were unable to cite any study which had established any linkage and that even the manufacturer had only 17 retinal hemorrhage "reports" out of the first 10,000,000 doses as of the end of 1993.

Result:

Defendant's Verdict

Significant Note:

The factors which went into this successful defense included our ability to merge our expertise in both ophthalmologic and psychiatric defense, and thorough knowledge of all the reported literature on the drug and the plaintiff's ocular disease, and keeping the jury's focus on the absence of credible literature to support the plaintiff's theories.

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Brownell v. New York City Housing Authority
Supreme Court, New York County

Plaintiff's allegations:

She alleged that she slipped in compacted snow and ice which had accumulated in the handicapped access ramp at the public crosswalk. She also alleged that the Housing Authority's snow clearing practices had caused snow to be pushed off the sidewalk and into the crosswalk ramp, where it became compacted by our client's snow clearing equipment; and that the City of New York was negligent in not clearing the streets and curbs many days after the snowstorm. Plaintiff suffered a severe ankle fracture requiring internal fixation, and claimed that she would require ankle fusion in the near future.

Demand:

$350,000

Defense position:

That our snow removal operations were appropriate, that the conditions were caused by heavy pedestrian traffic over the days after the storm and by inadequate clearing procedures by the City.

Result:

Defendant's Verdict. (The jury found the City of New York
    100% responsible.)

Significant Note:

The key was the successful cross-examination of the plaintiff's engineering expert. This was achieved through the careful study of prior testimony he had given, and then attacking his expertise in the field. By demonstrating that his opinions were unsupportable when compared with the actual design and operation of the Housing Authority's snow removal equipment, we were able to persuade the jury that our maintenance people had not created the conditions which precipitated the accident.

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Fader v. Cabrini Medical Center
Supreme Court, New York County

Plaintiff's position:

Termination of pregnancy resulted in an incomplete abortion which went undiagnosed and resulted in bleeding, the need for an emergency D&C and the development of a reactive psychosis and bi-polar disorder. Plaintiff sued her original treating gynecologists, Cabrini Hospital emergency room treatment, and both subsequent gynecologists and another hospital.

Demand:

$3.5 million

Defense position:

That the abortion was not incomplete, that there was no subsequent pathologic evidence of retained products of conception, that her mental illness was pre-existent and there were multiple stressors which precipitated her active phase disorder which were unrelated to this course of treatment.

Result:

Defendant's Verdict

Significant Note:

In order to secure a defendant's verdict for all the medical defendants, it was essential that the attorneys work together, understand their respective positions, and keep the jury's focus on the inadequacies of the plaintiff's proof.

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