STATE/COUNTY: Florida/Miami-Dade County Courthouse

DATE OF VERDICT: February 24, 2014

NAME OF CASE: Jay Fabrikant vs. Manual Ojeda, M.D. and Miami Beach Emergency Physicians Group

COUNSEL FOR PLAINTIFFS: Phillip Gold, Esq. and David Gold, Esq.; Miami, Florida

COUNSEL FROM NOSICH & GANZ, ATTORNEYS AT LAW.: James J. Nosich, Esq. and John Lukacs, Jr.

AGE/SEX/OCCUPATION OF PLAINTIFF: 57 y/o; male; unemployed as a result of the injury

CLIENT OF NOSICH & GANZ: Emergency Department Physician, Manual Ojeda, M.D. and Miami Beach Emergency Physicians Group

CAUSE OF ACTION: Medical negligence. Failure to diagnose a lower leg compartment syndrome. Plaintiff allegedly sustained a Chronic Regional Pain Syndrome to his right lower leg as a result of a undiagnosed and untreated compartment syndrome. A compartment syndrome is a life-threatening condition of the limbs which occurs after an injury, when there is insufficient blood supply to muscles and nerves due to increased pressure within one of the body's compartments, such as an arm, leg or other enclosed space within the body. If uncorrected, the lack of blood supply leads to injury in the affected muscles and nerves. The severity of compartment syndrome can be divided into acute, subacute, and chronic compartment syndrome with the former usually requiring amputation of the affected limb. The Plaintiff claimed that while skiing in Vail with a custom made but ill fitted ski boot he sustained an injury to his lower leg.  After he left Vail he traveled to Miami to continue his vacation at Miami Beach with his family.  One day after arriving in Miami he was seen in the Emergency Department of the Miami Heart Institute by Emergency Department Physician, Manual Ojeda, M.D.  At that time, Dr. Ojeda diagnosed the Plaintiff with ankle trauma resulting in a sprain and strain.  Dr. Ojeda applied a posterior splint to the leg and foot and discharged the Plaintiff.  The Plaintiff then flew later that day to his home in New York City and after he woke from his sleep he saw an orthopedic surgeon early in the morning at his office. The surgeon diagnosed a compartment syndrome and the Plaintiff was treated with a fasciotomy later that day in the operating room at Mount Sinai New York. A fasciotomy is a limb-saving surgical procedure used to treat acute compartment syndrome and where the fascia is cut to relieve tension or pressure commonly to treat the resulting loss of circulation to an area of tissue or muscle.  The Plaintiff claimed that he developed Chronic Regional Pain Syndrome shortly thereafter to the affected portion of his lower leg causing him life altering changes. Among these changes included going from a very active life where he was able to ski and swim to being confined to a scooter for transportation.  He also was placed on a variety of narcotics for his pain which have left him depressed and addicted to the same medications.  Because of the injuries, the Plaintiff was no longer able to operate his multi-million dollar business and it eventually failed.

DAMAGES: It was alleged that the failure to timely diagnose and treat the compartment syndrome led to a faciotomy of the lower leg resulting in a Chronic Regional Pain Syndrome. The Plaintiff asked for $8 million for past and future pain and suffering and approximately $1.5 million dollars in past and future medical expenses.

VERDICT: Defense verdict the Defendants.

COMMENTS BY JIM NOSICH: It was initially thought that sympathy for the Plaintiff would override any analysis of the facts by the jury which may lead to a defense verdict.  The key to the defense was an effective timeline to keep the jury focused on the facts.