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Senior Trial Partner Daniel L. Freidlin, Partner Anina H. Monte, and Associate Timothy M. O’Toole successfully secured a Defense Verdict in a case where the plaintiff alleged that MCB’s Hospital client and its employed echocardiogram technologist, negligently applied excessive force to the sternum during the performance of an echocardiogram, resulting in thefracture of sternal wires placed at the conclusion of his aortic valve replacement three years earlier.
Prior to trial, MCB filed a motion for a Frye hearing. While the Court ultimately denied the request, the motion wassuccessful in that the plaintiff submitted an Affirmation from their trial expert to oppose our motion. At trial, the plaintiff testified that the echocardiogram technologist applied undue pressure across his sternum and ribs, causing pain during the procedure. The plaintiff was diagnosed with asternal wire fracture within several weeks of the echocardiogram with apparently no other intervening traumatic event.
The echocardiogram technologist testified at trial that hecould not recall performing this specific test on the plaintiff, but using invariable practice, as to his testimony, established the performance of the examination was performed while seated, and using his non-dominant hand. He further explained that while the test may cause discomfort for some patients,no patient has ever complained to him of pain. We cross-examined the plaintiff's expert with his sworn Affirmation and established that an echocardiogram has never been found to have ever caused sternal wire fractures. MCB also demonstrated evidence of sternal wire fracture on imaging from two years earlier than the performance of this echocardiogram.
In summation, MCB argued that returning a plaintiff verdict would require the jury to conclude that the plaintiff was the first person inworld history where this has ever occurred and to ignore the findings of the prior imaging. The jury returned a unanimous defense verdict in wellunder an hour.