John F. Costa Obtains Defense Verdict for Orthopedic Surgeon, March 2017

On March 30, 2017, a Stamford jury returned a defense verdict in just under 45 minutes in favor of a local orthopedic surgeon.  Plaintiff claimed that the defendant severed her left median nerve during the course of endoscopic carpal tunnel release surgery for severe carpal tunnel syndrome. She claimed that she had worsening pain and numbness in the postoperative period despite contemporaneous office notes to the contrary. A second orthopedic surgeon not affiliated with the defendant took over the plaintiff’s care and five months later performed a second surgery on her wrist using an open technique rather than endoscopy. The second surgeon claimed that the nerve was severed during the earlier surgery and he had to repair it. Plaintiff claimed that she has been left with a significantly damaged left hand which she can no longer use to perform the majority of her activities of daily living.

Costa was successful in convincing the jury that it was actually the second surgeon who damaged the median nerve during the second surgery rather than the defendant during the first surgery. The defense was two-fold. First, Costa argued that given the anatomy and the way each technique was performed, it was more likely that the nerve was damaged during the open procedure, not the defendant’s endoscopic procedure. Specifically, the defense showed that the surgery involves completely cutting the transverse carpal ligament, which lies in a perpendicular fashion above the median nerve.  When the procedure is performed endoscopically, the surgeon approaches the bottom of the ligament and cuts upward, away from the median nerve. By contrast, during the second – open – surgery, the second surgeon cut downwards to release the reconstituted transverse carpal ligament which had been rejoined by leather-like scar tissue. The operative report from the second surgery documented “extensive scar tissue” which, the second surgeon testified, was “ all over” and made the median nerve now adherent to the bottom side of the rejoined transverse carpal ligament.

Second, and which proved to be devastating to plaintiff’s claim, Costa seized on the words of the second surgeon during his deposition: “the fascicles were disrupted.”  Costa showed the jury a diagram depicting a cross section of the median nerve. The outer wall – the epineurium – is not transparent. Inside the nerve, like cables within a cable, are the fascicles. The defense concluded its summation by pointing out that if the defendant had actually severed the nerve five months earlier, the wall of the nerve – the epineurium – would have healed and scarred over such that you would not be able to see through the nerve wall.  Since the second surgeon admitted that he was able to see that the fascicles were disrupted, there had to have been a hole in the wall of the nerve to allow the surgeon to see the inner content of the nerve, ie, the fascicles. The only way for there to be a hole in the nerve wall five months after the defendant’s surgery was if the second surgeon caused that hole during the second surgery.  The jury agreed.