Ken Halperin and Mitchell Kahn, partners with Wingate, Russotti, Shapiro & Halperin, LLP, obtained a settlement in the amount of $6,100,000 for a 57-year-old union plumber who tripped and fell at a construction site.

The accident in question occurred while the plaintiff was in the process of walking with two co-workers on a newly laid concrete sidewalk. The sidewalk was not completed at this time, so the plaintiff and his co-workers were using the completed portion. As the plaintiff stepped off the sidewalk, his foot got caught in a piece of wire mesh used to pour concrete for the sidewalk, which was mistakenly not cut away by the contractor.

As a result of his fall, the plaintiff injured his shoulder, which required arthroscopic surgery, and herniated a disc in his lower back. During treatment, the plaintiff received an epidural steroid injection in his lower back that provided some relief. When he went back for his second injection, the pain management doctor administered another epidural injection, but also administered a sacroiliac join injection without the plaintiff’s knowledge. The sacroiliac joint injection was tainted with a fungus that enveloped the plaintiff’s sacroiliac joint and led to its deterioration. Additionally, he became ill with many side effects from having the fungus in his body. Because of the fungal infection in the sacroiliac joint, the plaintiff has suffered unrelenting back pain and has been unable to return to his job as a plumbing supervisor, from which he earned a substantial income prior to his injury. The facility that produced the tainted steroid filed for bankruptcy.

During the course of discovery, partner Jason Rubin established that the contractors were not only responsible for the accident, but also the fungal infection because it came from treatment the plaintiff was receiving for his initial back injury. The defendants argued they were not responsible because it was unforeseeable that an injection could be tainted with fungus due to the negligence of the bankrupt facility that provided it. The matter was settled at a mediation for $4,600,000. Jason Rubin handled the medical malpractice portion of the case and settled with the physician who administered the injection for $1,500,000 after jury selection, which made for a total settlement of $6,100,000.

At the medical malpractice trial, Jason would have argued the sacroiliac joint injection was totally unnecessary because the plaintiff made no complaints nor had clinical findings indicative of sacroiliac joint dysfunction. Rather, based upon clinical findings and an MRI study showing a disc herniation impinging on a spinal nerve root, his back pain was being caused by lumbar radiculopathy. Additionally, the fact that the initial lumbar epidural steroid injection provided relief for his symptoms confirmed a diagnosis of lumbar radiculopathy.

The plaintiff contended he was unaware the doctor administered a sacroiliac joint injection and never gave informed consent to it. The defendant doctor contended that, on the date the sacroiliac joint injection was administered, the plaintiff made complaints of a new pain in the area of the sacroiliac joint and the doctor performed an examination supporting a diagnosis of sacroiliac joint dysfunction. The plaintiff denied this and, significantly, there was absolutely no medical documentation of this alleged new complaint, nor any documentation of an examination by the doctor, suggesting the doctor was fabricating his version of the events. Additionally, the plaintiff never signed a consent form for a sacroiliac joint injection.

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