Joan Sutton, a 68 year old retiree, suffered from chronic left hip pain, was diagnosed with degenerative arthritis and underwent total hip replacement surgery on June 12, 2003 with orthopedic surgeon Elias Kassapides, M.D. at St. Luke’s – Roosevelt Hospital in New York City. The doctor removed and exchanged the femoral head (the ball) and the acetabulum (the cup) which together comprise the hip joint and replaced them with artificial components.

Here is what a degenerative hip joint looks like:

Unfortunately, Ms. Sutton’s hip pain continued after surgery and she eventually treated with new surgeons, one of whom, on August 18, 2004, performed revision surgery on her left hip. He took out the prosthetic devices and put in new ones.

And here is what the hip replacement components look like after the surgery:

Contending that surgical mal-positioning of the hardware implants caused the need for new surgery, Sutton sued Dr. Kassapides but on May 2, 2008, a jury in Queens County rendered a defense verdict finding that there was no malpractice.

Now, though, in Sutton v. Kassapides, an appellate court has upheld plaintiff’s appeal and reversed that finding, set it aside and ordered that a new trial be held. The appellate court ruled that plaintiff was deprived of a fair trial as a result of the cumulative effect of the improper conduct of the trial judge, both during his cross-examination of witnesses and in his charge to the jury.

No details about the judge’s inappropriateness were set forth in the appellate court’s decision so we’ve dug up the information and here it is. The judge, Duane A. Hart, was charged by plaintiff’s counsel with stepping beyond his role as a disinterested umpire, evincing a clear bias in favor of the defendant and excessively intervening into the trial proceedings by:

• Pre-judging the case before trial began and concluding that plaintiff’s claims required dismissal
• Taking over the cross-examination of witnesses by his tone and the nature of his questions demonstrating partiality to the defense
• Falling asleep while on the bench during court proceedings

For examples of some of the judge’s improprieties during the trial, here is the plaintiff’s brief on appeal which includes portions of the trial transcript, at pages 11-18, demonstrating several instances of the judge’s unusual and improper actions in this case.

On retrial, the issue to be determined will be whether the defendant’s positioning of the hardware components "deviated from medically accepted practices." That’s precisely the phrase judges routinely use in their instructions to jurors at the end of medical malpractice cases in New York and it’s set out in full at Pattern Jury Instructions 2:150.

Plaintiff claimed that Dr. Kassapides was negligent (and caused the need for revision surgery) because he left about 25% of the hip socket uncovered due to his placement of the acetabular cup at corresponding angle of 30 degrees instead of 45 degrees. Defendant’s expert testified, though, that the cup was properly placed and that, as plaintiff’s expert conceded, an acetabular cup may be safely placed between 30 and 50 degrees.

As to damages (not reached at trial due to the defense verdict on liability), plaintiff will have to convince the new jury that she would not have been required to undergo left hip revision surgery but for the defendant’s negligence. The defendant will point out that plaintiff had, before her initial left hip surgery, undergone an unrelated right hip replacement that needed to be revised because the cup was placed too vertically. That may well undercut her claim that it was only the defendant’s negligence (assuming she can prove negligence) that caused the need for her left hip revision surgery.

In any event, whatever a new jury might award, it’s unlikely damages would be sustained above $500,000 in view of last month’s appeals court decision in Dublis v. Bosco (2010). There, a 74 year old woman underwent surgical revision of an artificial hip in which the femoral head and the acetabular cup were replaced. Unfortunately, plaintiff was left with a foot drop caused by intra-operative nerve damage. While her attorneys requested $800,000 for plaintiff’s pain and suffering, the jury awarded pain and suffering damages in the sum of $500,000 ($200,000 past, $300,000 future) and that amount was, over defendant’s objections, upheld as reasonable. While not perfectly analogous to the facts in Sutton v. Kassapides, it’s likely that this decision, as a practical matter, has set the ceiling for damages in Ms. Sutton’s retrial.

Inside Information:

• Plaintiff’s attorneys made the unusual request, granted on appeal, that the retrial should be held before a different judge. That request has been made and granted several times regarding this particular trial judge, for example, in Williams v. Naylor (2009), Pickering v. Lehrer (2006) and Allstate Insurance Co. v. Albino (2005).
• Judge Hart has been censured by the state Commission on Judicial Conduct for his improper conduct in other cases and matters.
• It is often very difficult for plaintiffs in medical malpractice cases to find top notch local experts to testify for then (and against their colleagues) so resort is made to out of state experts. Here, though, plaintiff’s expert, Ronald Krasnick, M.D., a Burlington, New Jersey orthopedist, appears to have been overmatched by defendant’s expert, William Macaulay, M.D., a world-renowned orthopedic surgeon. Jurors are often greatly influenced by such matters, especially considering that these types of cases are often battles of experts and are decided in large part based on which competing expert’s opinion is more credible.
• One of the mistakes by Judge Hart was his charge to the jury that if they concluded that defendant merely made an error in judgment (i.e., he chose among several accepted methods of treatment) as opposed to a deviation from accepted medical practices in how he perfumed the surgery, then they could find for the defense. The plaintiff argued successfully on appeal that this charge should not have been given because her claim was not whether the initial left hip surgery should have been performed or not; rather, she claimed that it was how the doctor performed the surgery (the ball and cup placement mal-positioning) that constituted negligence. In charging the error in judgment rule, Judge Hart ignored clear and binding precedent from New York’s highest court in the case of Nestorowich v. Ricotta (2002).