James J. Nosich
James J. Nosich (J. Albert Diaz)

Case: Jay A. Fabrikant et al v. Manuel Ojeda, M.D., et al.

Case no: 04-26802

Description: Medical negligence

Filing date: Dec. 21, 2004

Court: Miami-Dade Circuit Court

Judge: Gerald Bagley

Trial dates: Feb. 3-24

Plaintiff attorneys: Phillip Gold and David Gold, Gold & Gold, Coral Gables

Defense attorney: James J. Nosich and John Lukacs Jr., Nosich & Ganz, Coral Gables

Verdict: For the defense

Details: Fabrikant was a New York City businessman who started feeling extreme pain in his lower right leg on a ski trip to Vail, Colo., in March 2002. A doctor in Colorado diagnosed an internal ankle strain due to an ill-fitting ski boot, and Fabrikant continued on his vacation to South Florida.

However, the leg pain worsened, and he went to the emergency room at Miami Heart Institute in Miami Beach. Ojeda, an emergency room doctor, diagnosed a severe ankle and foot sprain, ordered a posterior splint for the leg and foot, and discharged Fabrikant.

Still in severe pain after he went home, Fabrikant was diagnosed with compartment syndrome, a condition where blood vessels become pinched to the degree that blood begins pooling under muscle. As a result, some tissue loses its blood supply. A fasciotomy, where the muscle is splayed to relieve pressure, was performed to save the limb.

Plaintiffs case: Fabrikant sued the ski boot manufacturer, Sure Foot Corp., and received a $1.1 million settlement, Nosich said.

He also sued Ojeda, Emergency Medicine Specialists LLC of Miami Beach, Miami Heart Research Institute, Mount Sinai Medical Center and Miami Heart Institute. The hospitals were dismissed as defendant before trial.

Fabrikant claimed Ojeda didn’t take an appropriate medical history or note the numbness and tenderness in his right leg that pointed to compartment syndrome.

David Gold said the case was never about Ojeda diagnosing of compartment syndrome but considering the symptoms presented made it a possibility.

“If he had, he would never put him in a demobilizer or splint,” Gold said. “Our claim is that exacerbated the compartment syndrome.”

Fabrikant claimed in a 2008 amended complaint that he developed chronic regional pain syndrome shortly after his initial surgery.

As a result, his weight ballooned from around 210 to 425 pounds. He was placed on numerous painkillers, which he claimed left him depressed and addicted. At trial, Fabrikant sucked on lollipops containing the narcotic pain reliever fentanyl.

“We showed a photo of him on top of a mountain with his children, and he looked like a guy who was an Olympic skier,” Gold said.

Because of the injuries, Fabrikant claimed he was no longer able to operate his multimillion-dollar business, and it eventually failed. He suffers from foot drop, which affects his gait.

Fabrikant sought $8 million for pain and suffering and $1.5 million for past and future medical expenses.

Gold said the plaintiff’s case was hurt because it had lingered in the court system for 12 years. Gold & Gold was brought in just last fall to try the case.

“We put on the best possible persuasive case we could under the circumstance,” Gold said.

Defense case: Nosich handled all the witness questioning and argument. He told jurors that Ojeda made a good-faith diagnosis given the facts presented to him.

“While he had probably had the very early sign of compartment syndrome, it wasn’t diagnosable,” Nosich said.

He said a key expert witness told jurors it is almost impossible to diagnose compartment syndrome early on. Dr. Mark Hutchinson, professor of orthopedic surgery at the University of Illinois, compared the syndrome to a full bathtub being unable to drain because of a clogged drain.

He said credible expert witnesses are key in medical malpractices cases. “The next level is do they like your doctor, would the jury be willing to accept your doctor as their doctor,” Nosich said. “If you do that, I think you’ve won the case.”

Fabrikant admitted on the stand that he was a convicted felon. His divorce records show he took loans from numerous companies he owned for personal expenses without documentation.

Outcome: The jury took 80 minutes to deliver the verdict in favor of Ojeda. Emergency Medicine was automatically exonerated by the ruling in his favor.

Comments: “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,” Nosich said.

Post-verdict. Nosich said it was the first time in his 20-year-plus career that jurors invited him out for drinks after the verdict. The plaintiff has filed a motion for new trial.