$500,000 – Montco Jury Awards Pipefitter Nearly $500K in Medical Malpractice Case

Mary T. Gidaro

A Montgomery County jury has awarded $495,000 to a man who said his doctor was negligent in missing a torn rotator cuff in his left shoulder during arthroscopic surgery, despite having diagnosed the tear before surgery.

Kenneth McCarthy injured his shoulder in February 2004 when he fell four-and-a-half feet to the ground from a ladder. According to his pretrial memo, McCarthy said defendant Dr. Leonard Brody noted that his MRI "show[ed] a protracted rotator cuff tear and the possibility of a SLAP lesion." The diagnosis was in concurrence with a radiologist's diagnosis after examining McCarthy's MRI.

During a March 1, 2004, surgery, however, Brody found no tear to be present in McCarthy's shoulder but rather a "large defect in the cartilage comprising the vast majority of the humeral head," according to McCarthy's pretrial memo.

After the surgery, according to the memo, Brody told McCarthy he would eventually need a joint replacement.

In June of that year, a second doctor diagnosed a "large to massive rotator cuff tear of the left shoulder and humeral defect" and operated a few weeks later.

Brody, who had recommended physical therapy after the first operation, argued the torn rotator cuff stemmed from "several significant events" following the first operation. Those events, Brody said, exacerbated previous, work-related injuries. In his pretrial memo, Brody added his former patient denied those events, despite contradictory reports from his physical therapist. They included stripping wallpaper, doing "some light yard work," working on a pool and spreading mulch.

McCarthy noted he has continued pain in his shoulder and back, which he attributes to Brody's deviation from the standard of care.

The jury deliberated for about two hours after a two-day trial on June 29, according to Mary T. Gidaro, McCarthy's attorney. The jury awarded $480,000 in non-economic damages and $15,000 to McCarthy's wife, Sandra McCarthy, for loss of consortium.

McCarthy has filed a post-trial motion for $114,519 in delay damages, and the defense has also filed post-trial motions, Gidaro said.

Gidaro, of Saltz Mongeluzzi Barrett & Bendesky, said the trial turned on her client's likeable character and presentation of video deposition footage of Brody. "I think the plaintiff came across as a very honest, hardworking individual and he came across as very credible," Gidaro said. "If you have a meritorious case, you can obtain a plaintiffs verdict in a medical malpractice case in Montgomery County."

Gidaro said there were no settlement offers throughout the case.

According to McCarthy's pretrial memo, Brody used a probe to take eight photographs of the shoulder after surgery. In a deposition, Brody said he was "flabbergasted" of the pending lawsuit because the photos reveal an intact rotator cuff. He later conceded the photos "can't show the whole rotator cuff," according to McCarthy's memo.

In arthroscopic surgery, a surgeon typically will use a probe to feel tendons he or she cannot observe, attorney Michael F. Barrett and Gidaro noted in the memo. However, nowhere in Brody's operative notes does he record he probed for or felt such tendons.

Brody said he was "guilty" of not describing those findings but he had, in fact, probed inside the rotator cuff.

But an expert report from Dr. Aaron A. Sporn, cited in McCarthy's memo, notes "a real possibility" such probing would have revealed the tear that was apparently present on the initial MRI.

The defense called Dr. David L. Rubenstein, an orthopedic surgeon, who said the rotator cuff could have been exacerbated by the activities McCarthy allegedly performed during the course of physical therapy outside of treatment.

In 2003, about a year before his fall, McCarthy had seen Brody for work-related shoulder pain and discomfort. Brody had then diagnosed McCarthy with impingement syndrome and treated him with two cortisone injections on separate occasions, McCarthy's memo said. After the first injection, Brody said he would order an MRI if symptoms persisted, but instead issued another injection on a subsequent visit, according to the memo. McCarthy was free of discomfort until he fell in 2004.

Other defendants listed were the Huntingdon Valley Surgery Center, Suburban Orthopedic Specialists and Foundation Surgery Affiliates.

Brody also argued that McCarthy was not permanently injured and has returned to his life "with no evident limitations in his activities of daily living."

McCarthy returned to work in 2005 in a supervisory position, in which he earns more money, but does significantly less physical labor, according to pretrial documents.

Frederic Roller, of Marshall Dennehey Warner Coleman & Goggin, did not immediately return a call requesting comment.

- By Ben Present, of the Law Weekly

Related Attorneys

Mary T. Gidaro
Mary T. Gidaro Associate

Office: 215-575-2979