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A jury in a federal medical malpractice case “reached a seriously erroneous result” and its verdict represents a “miscarriage of justice,” a Northern District of New York judge has held in a relatively rare rejection of a jury’s determination. Judge David N. Hurd of Utica, N.Y., found the verdict in Martin v. Moscowitz, 1:02-CV-1281, inconsistent in that the panel held that a medical procedure was performed absent informed consent, that if there had been informed consent the procedure would not have been allowed, and that the patient was injured but not as a result of negligence. “Considering the evidence in the light most favorable to [the doctor], making all inferences in his favor, and not weighing conflicting evidence and witness credibility, there is not a legally sufficient evidentiary basis for a reasonable jury to find in [the physician's] favor,” Hurd wrote. The matter involved a minor child, teenager Covon Martin, who suffered from slipped capital femoral epiphysis, a condition that occurs when the growth plate causes the femoral head to slip. Treatment often involves the surgical placement of screws in the hip to prevent further slippage. However, there is a risk of permanent damage if the screws or pins penetrate the hip joint. In Martin’s case, the patient suffered pain and limited mobility well beyond the normal recovery period after Dr. Richard W. Moscowitz inserted pins in his left hip. During a subsequent procedure, Moscowitz found that one pin was penetrating. He also partially unscrewed another pin. Moscowitz then performed a similar operation on Martin’s right hip. That procedure too resulted in a protracted recovery period, prompting Moscowitz to eventually suggest a second opinion. The consulting physical found that two of the four pins in Martin’s right hip were penetrating. He also found that Martin was suffering from chondrolysis, synovitis and degenerative arthritis which will eventually require a hip replacement. A malpractice action ensued, with Martin’s mother claiming medical negligence and absence of informed consent. The jury found that Moscowitz was not negligent in his treatment of the left hip. It also found that there was a lack of informed consent, but that consent still would have been given even if complete information had been provided. With regard to the right hip, the jury found that Moscowitz was not negligent, that there was a lack of informed consent and that consent would have been denied had appropriate information been given. However, it also found that lack of informed consent was not a substantial cause of Martin’s injuries. Hurd rendered a judgment in favor of the plaintiff as a matter of law and scheduled a trial to determine damages. “There was such an overwhelming amount of evidence in favor of Covon that reasonable and fair minded jurors could not have found that no unnecessary injury resulted from performing the surgery with … pins,” Hurd wrote. Appearing were Bradley A. Sacks of Manhattan for the plaintiffs and Richard J. Nealon of Meiselman, Denlea, Packman, Carton & Ebertz in White Plains, N.Y., for the defendant.

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