83 sj dr. kaplan - plaintif. direct 1 a. yes. pltf ortho j kaplan.pdfthe court: you can step down....
TRANSCRIPT
SJ • Dr. Kaplan - Plaint if. Direct83
STEFANIE JOHNSON, Senior Court Reporter
A. Yes.
MR. BOROWICK: Nothing further.
THE COURT: Any recross?
MS. DICOLA: No thank you, your Honor.
THE COURT: You can step down.
(Whereupon, the witness was excused. )
MR. BOROWICK: Plaintiff calls Dr. Kaplan.
THE COURT OFFICER: Raise your right hand.
You swear or affirm the testimony you're about to
give will be the truth, under penalty of perjury?
THE WITNESS: Yes.
Called as a witness by and on behalf of the Plaintiff,
after having been first duly sworn, testified as
follows:
THE COURT OFFICER: Your name.
THE WITNESS: My name is Jeffrey Kaplan.
THE COURT OFFICER: Business address.
THE WITNESS: My address is 160 East 56 Street in
Manhattan, 10022.MR. BOROWICK: Doctor Kaplan, I'm going to ask you
to keep your voice up. This room is large and cavernous
and it's sometimes hard to hear witnesses.
Your Honor, I'm going to offer before we get into
the testimony, I'm going to offer the St. Barnabas Hospital
K A P LAN,DR J E F F R E Y
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1 record which has been marked Exhibit 3 for identification
2 into evidence.
3 MS. DICOLA: No objection.
4 (Whereupon, Plaintiff's Exhibit 3 was marked in
5 evidence. )
6 THE COURT: Dr. Kaplan, 1'm Judge Rodriguez.
7 First, the lawyer will ask questions and then the second
8 lawyer will ask you questions. If you hear them say
9 objection, please wait until there's been a ruling before
10 you answer.
11 THE WITNESS: Sure.
12 DIRECT EXAMINATION
13 BY MR. BOROWICK:
14 Q. Dr. Kaplan, good afternoon. I'm going to ask you to
15 address your remarks to the jury. Would you tell the jury what
16 your educational background is that allows yourself to call
17 yourself Dr. Kaplan?
18 A. I went to college at Yale University. When I graduated
19 college I went to medical school here in the city at Columbia
20 University. When I finished medical school I did a training
21 program in orthopedic surgery. I did that at a place called
22 Campbell Clinic which is in Memphis Tennessee, which is the
23 first orthopedic center in the country. Following that I
24 practiced in Tennessee and Mississippi for a short period of
25 time, then I moved back to New York 1994 where I've been in
STEFANIE JOHNSON, Senior Court Reporter
STEFANIE JOHNSON, Senior Court Reporter
private practice ever since.
Q. Do you teach orthopedic surgeon?
A. Yes.
Q. Tell the jury what orthopedic surgery is. First what
orthopedics is and then what orthopedic surgery is?
A. Orthopedic is the study of bones and joint and the
supporting structure of the bones and joints, things like
muscle, tendons, ligaments, cartilage, disc. Of course it has
to do with injury and abnormality to the structures and then
treatment of those abnormalities either by conservative means,
which are things like medications, physical therapy, injections,
or if those things don't work or inappropriate then surgical
treatment of those injuries or abnormalities.
Q. SO you said that you teach. Who do you teach?
A. I'm on the staff at several hospitals around the city.
Those include Lenox Hill, Roosevelt, St. Lukes, New York
University Downtown Hospital, and I teach the residents at those
hospitals. The residents are physicians that graduated from
medical school and are learning specialties such as orthopedics.
s6 I teach surgical techniques, surgical decision making,
treatment of orthopedic patients, things like that.
Q. In this case we're dealing with the ankle. So I'm
going to ask you questions about your experience with the ankle.A. Sure.
Q. First, are you board certified in your field?
, !
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A.
Q.
Yes.
Would you explain to the jury what it means to have the
3 credentials of board certification?
STEFANIE JOHNSON, Senior Court Reporter
qualification you can get after college, medical school and a
residency training program. After you've been in practice for
several years you're eligible to take a series of examinations
over a number of years. In that case it was given by the panel
of expert physicians which is called the American Board of
Orthopedic Surgeons. You finish and pass all those examinations
and the Board feels that you've reached a certain level of
knowledge and expertise in orthopedics, then they deem you board
certified. They give you a diploma so they call you a diplomat
of that residential.
Q. Tell the jury, what does your practice consist of now?
A. My practice is orthopedic surgery, that means seeing
patients in the office and then treating them, either
conservatively, as I mentioned before, or surgically.
Q. Is your office in the Bronx? Is it down in Manhattan?
A. My office is on East 56 Street in Manhattan.
Q. Could you tell the jury, in connection with your
practice, and I want you to focus on the surgery you actually
do, how many surgeries do you do in a given year?
A. I do about the average of the American orthopedic
surgeon which is 300 to 350 cases a year. It's not the same
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A. Sure. Board certification is simply an extra
SJ • Dr. Kaplan - Plaintif~ Direct87
STEFANIE JOHNSON, Senior Court Reporter
25 my career. Ankle fractures are a frequent occurrence. When you
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number every year because a lot of what we do is stuff that
happens through the emergency room. So it depends on how people
are getting hurt and things like that.
Q. And with regard to the emergency room, could you
describe to the jury what the difference between conditions or
injuries that are as a result of trauma, or conditions or
injuries that are as a result of congenital problems that you
operate on?
A. I mainly treat what we call traumatic injuries,
injuries that happen because a force was applied to a structure,
either a bone or the supporting structures of the bone, and
there's been an injury. The majority of what I do is trauma
surgery.
Q. What are the different types of parts of the body or --
let's talk parts of the body. What do you specialize?
A. I specialize in bones and joints. Part of orthopedics
is spine work. I do conservative treatment of spine but I don't
do spinal surgery at this point in my career. I do fracture
work on any bone on the neck down. I don't work on the jaw or
the face. Fracture work. Injury to any joint, again, from the
neck down and the same with muscles, ligaments and tendons.
Q. How often would you say in your career have you
operated on a person's ankle?
A. I've operated on thousands of ankles over the course of
S ••T • Dr. Kaplan - PlaintifAit Direct88
1 calculate the number of fractures, it's an area which does get
2 injured with some frequency. And fractures are one of the most
STEFANIE JOHNSON, Senior Court Reporter
opportunity to take a history, develop his past history, take
X-rays? Tell us what that involved, that interaction.
A. Sure. So when I saw Mr. Micky I did a history, which
means to talk to him about how he was injured and what has
cornmonsurgeries that I do on the ankle.
Q. When is the last time you did ankle surgery?
A. I did ankle surgery yesterday on a patient. It was a
sequela of the injury, which means the guy had an ankle fracture
several years ago and he continued to have problems, even though
he had proper treatment of the bone. So we did an arthroscopy
to clean the ankle out to attempt to help him.
Q. Before I get into a discussion with the medical, I'd
like to ask you with regard to Masoud Micky. Do you recall
meeting Masoud Micky in your office?
A. Yes.
Q. Did my office ask you to evaluate his condition in
advance of your coming to court to explain to the jury what yourfindings are?
Yes.
How many times did you have an opportunity to examine
I've examined him only once.
In addition to examining him, did you have an
A.
Q.
A.
Q.
him?
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STEFANIE JOHNSON; Senior Court Reporter
occurred since his injury. I did a physical examination, which
is to actually touch his joint, move it around, ask him to move
it, observe the scar and things like that. And then go over
some medical records in this case from St. Barnabas Hospital
where he had this initial treatment of the fracture. And then I
took some X-rays on my own so I can see what his bone, what the
hardware that's in his leg and what the joint looked like at
this point and time.
Q. Now, and again, before we get to the medicine and yourexam, I'd just like to ask you, you're testifying here today and
is your office charging my office a fee for your appearance?
A. Yes.
Q. What is that fee to replace? In other words, what areyou missing by being here?
A. Sure. I had to cancel my office from about eleveno'clock to the rest of the day. I still have fifteen people
working in the office, despite the fact that I'm not there,seeing patients at this time.
Q. On the occaslons that you come to court, is it for your
patients, is it as a result of a request by a lawyer, either foran injured patient or for a defendant?
A. live been called to be an expert witness for different
reasons. Most of the time I'm here is for patients live been
treating for long periods of time. live been called as an
expert witness to see a patient on one occasion both b~ patient
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1 who have been injured as well as the defendants. I've been
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asked by federal judges to examine patients independently and
render an opinion. There are many reasons I come to court as an
expert witness.
Q. Have I ever called you as a witness in this case?
A. No.
Q. Tell the jury, when you met with Masoud Micky, was
there a particular part of the body you focused on?
A. Yes.
Q. At my request did you bring with you a model of the
ankle?
A. I did.
Q. Is it in your bag or do you have it with, you?
A. I have it with me in my bag.
Q. With the Court's permission, could you come down to the
front of the box so it's as close as possible and would you
describe the anatomy, at least the bony anatomy of the ankle.
THE COURT: It's a demonstrative exhibit?
MR. BOROWICK: Yes.
THE COURT: Any objection?
MS. DICOLA: No.
(The witness stepped down from the witness stand
and stood in front the jury displaying the model.)
A. So what I brought was a model of the lower leg which
includes the ship in the foot, and the joint between the lower
STEFANIE JOHNSON, Sen~orCourt Reporter
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leg and the foot is the ankle joint. That joint is made up of
three bones. The larger bone is the tibia. The smaller bone is
called the fibula. The bone in the foot which we often call the
ankle bone is actually called the talus. The talus sits
underneath primarily the tibia which acts like a pillow, it sits
right on top and translates the force of the body down into the
foot.
Q. Now, the way you positioned it, you're connecting bone
to bone, is that anatomically accurate?
A. For the purposes to demonstrate, yes. The tibia sits
on top of the talus. Now, there is a layer coat which is a
slippery tissue that sits in between the joints and it lines the
top of the bone. I don't know if you look at the end of the
chicken bone you see a pearly white, that's cartilage you're
looking at sitting at the top of the bone. At each joint
there's a cartilage cap that meets another cartilage cap of the
bone. It allows for smooth sliding motion of the joint. You
heard people say they have bone on bone damage. They say that
when the cartilage has disappeared then it is as opposed to bone
cartilage bone.
Q. Bone on bone arthritis, is that productive of pain?
A. Absolutely .. That's what people talk about.
Q. If there's damage to cartilage, is that something that
over time is a progressive disease?
A. The answer is yes, that is a progressive problem. What
STEFANIE JOHNSON, Senior Court Reporter
SJ • Dr. Kaplan - Plaintif. Direct92
that means is that over time that cartilage layer sits at the
top of the end of each bone will wear over time. It gets worn
away. We all get some wearing of cartilage over time. We all
get a little arthritis over time. You damage that cartilage,
that cartilage is not tissue that will grow much. It's not like
hair and skin. Once it's damaged, it's damaged. If you have a
damaged area of cartilage or if there's a fracture or break
through that cartilage, then you create an area where the bone
is no longer smooth and sliding and gliding like we talk about
before and you get rough surfaces rubbing on each other.
Q. Now, you mentioned a fracture or a break of the bone
into the joint. What is the significance of a fracture or
fractures into the articular space? First, what's the articular
space?
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15 A. The articular space simply means the joint where the
16 two bones cornetogether and touch. That's called articulation.
17 They articulated. There are different types of fractures.
18 Obviously, you can have a fracture through the long bone and
19 usually the bone will grow back. If there's not a deformity of
20 the bone, if the two bones don't grope one next to the other
21 then it happens without consequence. That's opposed to a
22 fracture that occurs through the joint and across those joint
23 surfaces and disrupts the smooth cartilage surface. When that
24 occurs, you have an irregularity in the joint surface and you
25 get unsmooth joint surfaces. And over time those unsmooth
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surfaces wear on one another in a quicker rate than the smooth
surfaces. So they wear each other. It becomes a permanent
problem but it's a progressive problem.
Q. Now, tell the jury, if you would, besides cartilage,
which isn't shown specifically on that model, besides cartilage,
when a person has a comminute fracture what is that?
A. Comminuted is another way to describe a fracture. You
can have a clean break, two big pieces of bone, or you can have
a comminuted break which is the bone is broken up into small
pieces.
Q. When there's a comminuted fracture that enters the
joint space through the articular space and the articular
cartilage, of what significance is it to other tissue besides
the bone and the cartilage?
A. When we look at an X-ray we only see the bones on the
X-ray for the most part. We can see that cartilage -- the bone
broken up into small pieces in a comminuted fracture. That
means that there was a great deal of force that occurred through
the bone to allow break up into small pieces. That usually
indicates that there is damage to the soft tissue that help
support the bones. Again, the ligaments, ,the ligament is a rope
like structure that hold one bone to the other. The tendons,
above that the blood vessels around that, the nerves near the
blood vessels, the fat and the skin above that. If there's a
force so great enough to break a bone you get bruising, you get
STEFAN IE JOHNSON, Senior Court Reporter
SJ • Dr. Kaplan -Plaintif. Direct94
1 swelling, that's an indication that there's also soft tissue
2 damage which you don't necessarily see on X-ray.
3 Q. When you examined -- you can resume your seat.
4 (Whereupon, the witness resumed the witness
5 stand.)
6 Q. You mentioned before that when Mr. Micky appeared in
7 your office that you had an opportunity to take X-rays?
half years before your visit with him, of what significance or
what purpose did you look or take X-rays?
A. Sure. The reason to look at X-rays now when I saw him,
Mr. Micky, are to see what shape the bone is in. Meaning, is
there arthritis in the joint, does he still have metal in the
joint -- or in the bones, rather, what position that metal is in
and things like that.
Q. Let me cut to the chase and ask you, based on your
review of the medical records and your examination and your
X-rays, did Mr. Micky have a fracture?
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A.
Q.
A.
Q.
A.
Q.
space?
A.
Yes.
Understanding that his accident occurred seven and a
Absolutely.
Did he have a comminuted fracture?
He did.
Did he have a comminuted fracture into the articulate
He had a comminute into the articular fracture into the
STEFANIE JOHNSON, Senior Court Reporter
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SJ • Dr. Kaplan - Plaintif. Direct95
1 right ankle.
2 Q. Did it disrupt the articular cartilage?
arthritis?
STEFANIE JOHNSON, Senior Court Reporter
MS. DICOLA: Objection.
THE COURT: Sustained.
MR. BOROWICK: We'll get to that.
Q. Let me ask you to assume the following, subject to
connection. I want you to assume that my client never had an
ankle problem in his right ankle before, never gets treated for
any ankle sprains, fractures or otherwise, was on no medication
and had never undergone physical therapy for his ankle. He was
able to work and play using his ankle, weight bearing, standing
on for long periods of time and running. He was very athletic.
Do you have an opinion based upon that scenario that I just
described as to whether or not he had any relevant past medical
history in connection with that ankle?
A. Yes.
Q. What is your opinion?
A. My opinion is that he had no relevant past medical
history in the ankle. He indicated to me he never had trauma or
Yes, it did.
Over time has that cartilage worn away in a significant
Yes.
Does he suffer from traumatic intra-articular
A.
Q.
A.
Q.
way?
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treatment in the ankle. He.was able to do things.that he wanted
to do and only after having this fracture has he been limited
with continued pain.
Q. Now, let's get to the hospital record. You reviewedthe hospital record?
A. Yes.
Q. I'm going to ask you some questions because it's in
evidence and I can basically read the whole thing but I won't.
There's some questions that jump south. I want you to assume
that in an ambulance call report there is an indication that the
patient slipped on some ice on the sidewalk and hurt his leg, he
heard it pop as it broke. Then there is the emergency services
which says slipped and fell on ice, not mentioning the sidewalk.
Then there is a progress note or a note in the emergency room
that indicates that he slipped and -- that he slipped on ice and
fell, hurting his right ankle. Then there's an entry where it
says that he was crossing the street, slipped and fell while
crossing the street, heard bone pop. I want you to assume that
after he heard the bone pop and suffered his injury, wherever it
was, that he climbed on and crossed the sidewalk leaning againstthe wall, was ultimately taken away by emergency services to a
hospital where he was medicated and later in the day was
operated where he had the surgery that you'll describe in a
moment. Would the fact that there are versions which talk about
crossing the street, which talk about being on the sidewalk,
STEFANIE JOHNSON, Senior Court Reporter
SJ • Dr. Kaplan - Plaintif. Direct .97
STEFANIE JOHNSON, Sen~or Court Reporter
which talk about slipping, notes that indicate tripping,
slipping, falling, do any of those have anything to do with
diagnosis and treatment?
A. No, they have nothing to do with diagnosis.
Q. Is it unusual when a patient comes in in the winter and
has fallen and broken an ankle, is it unusual for medical
services people, police officers, whoever, to interpose a
version of an accident, whether or not the patient actually says
it?
Q. Is that -- does it matter to you whether he fell
crossing the street, whether he fell on the sidewalk, or whether
he fell crossing the street onto a sidewalk when you are
treating a patient of the jury?
A. It doesn't affect my diagnosis nor the way that the
bones are and the relative injury that occurs.
Q. Okay. I'll ask you about the injury as it relates tothe type of accident in a moment.
When he was in the hospital, did he have surgery?
A. Yes, he did.
Q. Did he have major surgery?
A. He did.
Q. Was it successful?
A. Yes.
Objection.
Sustained.
MS. DICOLA:
THE COURT:
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1 Q. Now, when a doctor says surgery was successful, what
2 does that mean to a doctor?
STEFANIE JOHNSON, Senior Court Reporter
patient made it through the surgery, meaning was put to sleep,
the surgery was performed, he woke up after the surgery. He did
not have a major infection after the surgery. The goal of the
surgery was to stabilize the bones and line them up so that the
bones can grow together. That occurred. So that's a success.
Q. Does success in surgery, in those terms, does that meanthat the damage done to his joint was reversed?
A. It's a very good question.
Q. Thank you.
A. The damage done to the joint and the joint surfaces is
not reversed. When you crack through the joint and the
cartilage surface you have injured an area that does not grow
back together. The whole point of the surgery is to straighten
the bone. The bone will grow back together but that is not thesame as saying the joint is normal_
Q. Is it medically possible to knit the cartilage backtogether so it performs as natural cartilage does?
A. No. The cartilage again does not regrow. What occursis that scar tissue forms between the broken pieces of
cartilage. Certain parts of the cartilage will flake off and
die. Certain gaps will be left in the joint surface and that's
where you start to see changes in the joint on X-ray in the bone
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A. Sure. The surgery was successful. That means that the
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-~
1 that's underneath that cartilage. Normally that cartilage
2 protects the bone. If the cartilage is damaged and the bone
3 sees more forces than it would normally be seen, and then we see
4 changes on X-ray.
5 Q. I'm going to ask you to look at this exhibit. Let me
6 show it to you before I explain it to the jury and I'll let
7 counsel see it as well. I'm going to ask you, sir, have you8
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seen this exhibit before?
(Whereupon, exhibit gown to defense counsel then
displayed to the witness.)
A. Yes.
Q. Is it an exhibit which is a fair and accurate depiction
of what it purports to show?
A. Yes.
Q. Would it be helpful to the jury in understanding your
testimony if you were able to use this to describe the injuryand the surgery?
A. Yes.
MR. BOROWICK: I would offer it in evidence.
MS. DICOLA: I object. May we approach?
THE COURT: Yes.
(Whereupon, a discussion was held in the robing
room, off the record, amongst the Court, Mr. Borowick andMs. Dicola.)
Q. Doctor, if you would, with the Court's permission, come
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down and could we have this marked, Judge, for identification.
(Whereupon, Plaintiff's Exhibit 11 was marked for
identification. )
Q. Does this fairly and accurately depict the injury, the
surgery and the post-opt condition of Mr. Micky's ankle?A. Yes.
Q. Would you step down in front of the jury, please, and
we'll put this on the easel, and take us through beginning with
the pre opt injury.
A. This is an X-ray that was taken just after the injury.
You can see the fracture here in the bone, what we're looking
at. This X-ray is of the foot and the tibia and fibula above
it. There's a fracture of the tibia here. This piece is broken
off the main shaft of the tibia through the ankle joint. The
ankle joint should extend all the way to here. This is the
intra-articular fracture. Also in this fracture there are
several small pieces of bone, that's what make it comminuted,
it's comminuted and intra-articular. Behind the articular
fracture and the photo of the X-ray is the fracture of the
fibula as well. And here's a drawing which just shows what itlooks like anatomically as opposed to an X-ray. Fractured
through the bone, small pieces broken up involving the joint
surface as well as the fracture of the fibula behind. The
surgery that was performed is called an open reduction and
.internal fixation surgery. What that means is that the skin is
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STEFANIE JOHNSON, Senior Court Reporter
SJ • Dr. Kaplan - Plainti~ Direct102
1 foot in place by three bumps on each side. One is on the
2 outside portion of the foot, which is known as the lateral
3 portion of the foot. One is on the inside portion of the foot,
4 which is called the medial portion of the foot. The other is
5 the posterior portion of the foot or the back. So these bumps
6 are called malleoli. That's actually Latin for heel, they
7 .looked like bumps. So you have a lateral posterior and medial
8 malleolus. An incision, a straight lateral incision is made.
9 Lateral meaning outside portion of the body over the fibula.
10 And the lateral malleolus is exposed, that bone was exposed.
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Q.
A.
Q.
A. Again, I told you you can describe fracture in
different ways. One of the ways you can describe an ankle
fracture is saying how many of these bumps are out of place,
because, once again, they hold the foot under the leg. If one
is out of place you can occasionally just treat that
conservatively, meaning in a cast. When two are out of place or
there is a bi-malleolar fracture one, two, then the joint is
considered unstable and that usually means surgery. If three
are broken, that almos~ always needs surgery.
Q. What did he have?
A. He had a.bi-medial fracture meaning a fracture of the
medial and the posterior.
STEFANIE JOHNSON, Senior Court Reporter
SJ • Dr. Kaplan - Plainti~ Direct103
STEFAN IE JOHNSON, Senior Court Reporter
subcutaneous tissue using electrocautery for hemostasis?
A. The skin is called the cutaneous lower. So the
subcutaneous, below the cutaneous is the foot, which is the
covering of the muscle. Electrocautery is literally burns the
bleeding blood vessels and seals them off.
Q. How does it seal them off?
A. It melts them together, it forms a scar tissue.
Q. When that's done, is the picture that you see, is
that overly dramatic as far as blood is concerned or is it less
dramatic than in actuality?
MS. DICOLA: Objection.
THE COURT: Sustained as to the characterization.
Ask your question differently.
Q. Is that a messy version that's graphic or is it a
cleaned up version?
MS. DICOLA: Objection, for the record.
THE COURT: Okay. Sustained.
Q. Tell the jury -- go through the rest of the surgery and
how those tools are used to affect that reduction?
A. So the reduction, which again is to reduce the
deformity caused by the fracture, is done manually, meaning like
pulling on it and putting this clamp around the bone to hold it
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Q.
A.
Q.
You said it was into the articular surface?
Into the joint surface.
Now, it goes on to sayan incision ,was made through the
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in place once the bones are lined back up. That's what's done
here. This plate is then a solid plane and then it acts like a
strut, a scaffolding, when it is attached to the bone by
drilling holes in the bone and filling those holes in the bone
with screws. So it's really like putting a metal plate on the
side of a building to hold that building up. Similar physics.
Additionally, Mr. Micky had a fracture, as we talked
about, with the posterior malleolus, that's the major weight
bearing portion of th~ joint, the tibia that sits on top of the
talus. That had to be also reduced. The way that that was
reduced. was again another incision that was made on the front of
his leg, a drill was placed through the bone capturing the
posterior fragment. This is looking from the front. But
looking from the side, a drill will be drilled across this way
and" a screw put in to capture this fragment and pull it as close
to normal as possible.
Q. Are those compression screws?
A. This is a compression screw which means as it grabs the
bone it pulls the bone together.
Q. Were they able to obtain satisfactory alignment?
A. They were able to get satisfactory alignment, yes, that
means to put the bones into a position that you can bear all of
the body weight over the ankle.
Q. Was anything done to address the membrane around the
bone?
STEFANIE JOHNSON, Senior Court Reporter
SJ • Dr. Kaplan - Plainti~ Direct105
STEFANIE JOHNSON, Senior Court Reporter
The periosteum, usually when there's a broken bone, is shredded.
There's not much that can be done to that.
Q. What purpose does it serve if it's intact?
A. It gives blood supply to the bone and it also gives
some sensation to the bone. It's what reall~ hurts when youbreak a bone.
Q. What about the blood supply, was any attention given tothe blood supply to the bone?
A. There's no specifically attention given to the blood
supply to the bone here. The only thing you can do is line it
up as best as possible. The blood supplies to the bone is
through several one, one is the periosteum covering of the bone
and as well as the blood that's inside the bone. When you look
inside the bone it looks hollow. There's blood vessels and
cells inside the bone which helps with the knitting of the bone.Q. What is proprioception?
A. Proprioception is one of the body senses. Just like
the sense of sight, the sense of hearing, the sense of feeling,
proprioception is the body's ability to know where your limbs
are in space without looking. That's why I can climb this stair
without looking down. I know where my foot is without looking
at it. I can stick my hand apart like this because I can tell
how far apart my fingers are without looking at it. I can tell
if I'm touching a quarter or a penny. It's proprioception which
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A. The membrane around the bone is called the periosteum.
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is where you know your limbs are, where they are in space.
Q. Are there proprioreceptors in the ankle joint?
A. There are nerves which have the ability to send
messages to your brain called proprioceptive messages that allow
you to know where you are. Again, coming up and down stairs.
When you step on something that's uneven, it helps you balance
yourself because you know where to put your foot. Those are
very, very important sensory mechanisms in the ankle that are
disturbed in an injury. You can have a disturbance of
proprioception even with a sprain. But if a fracture you always
have a fairly significant proprioceptive injury at first.
Q. I want to ask you about the mechanism of injury. If a
person is walking and slips such that they're -- and I'm using
my right foot, such that they step on ice and they slip, is that
the kind of force that would cause the kind of fractures thatMr. Micky sustained?
A. No.
Q. If he was walking and his foot slipped back, would thatcause the kind of fractures that Mr. Micky sustained?
A. No.
Q. I want to show you photographs of a defect, subject toconnection, that Mr. Micky has indicated that when he stepped
up, and I'm showing him Exhibit 4 in evidence, when he steppedup from the
MS. DICOLA: Objection.
STEFANIE JOHNSON, Senior Court Reporter
sustained.
Q. Doctor, you mentioned the mechanics of a slip of the
leg going forward, a slip with the leg going back. What type of
or what are the mechanics of this bi-mal break
MS. DICOLA: Objection.
Q. What movement of the foot in space could cause this
type of break?
THE COURT: Overruled.
A. So the mechanics of this injury, meaning what type of
movement causes a break of the lateral malleolus and the
posterior malleolus, is one where the foot rolls and turns. You
can see where that puts the force on the bone. It puts it on
the fibula and the back part of the tibia. With the force of
the body weight and falling, with that type of force, that's
where you see this type of fracture occur.
Q. Doctor, when you examined him, could you tell us what
complaints did he make? Again, seven and a half years after the
surgery and the accident, what were his complaints when you
examined him?
•SJ
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Dr. Kaplan - Plainti. Direct
May we approach?
THE COURT: .Yes.
(Whereupon, a discussion was held in the robing
room, off the record, amongst the Court, Mr. Borowick and
Ms. Dicola.)
THE COURT: For the record, the objection is
107
STEFANIE JOHNSON, Senior Court Reporter
SJ • Dr. Kaplan - Plainti. Di-rect108
1 A. I'm going to pullout my chart here. So complaints
2 that Mr. Micky had were of continued swelling and pain at the
3 right ankle. He complained of decreased walking tolerance,
4 which means that he can't walk as far as he could before this
5 injury; decreased standing tolerance, which means he couldn't
6 stand for as long as he did before the injury.
7 MS. DICOLA: Your Honor, for the record, is the
8 doctor looking at something? I think we should have it
9 marked.
10 THE COURT: He's looking at his notes, correct?
11 He is.
12 MS. DICOLA: I want it for the record if he's
13 refreshing his recollection we should mark that.
14 THE COURT: You can always move if you need to
15 hear.
16 A. He indicated that he has difficulty doing things that
17 are required of the job that he was doing as a security guard
18 for standing and walking requirements. Let's see. He indicated
19 he had sharp pain in his ankle when he initiates motion after
20 sedentary period. So that means after sitting for a period of
21 time when he first gets up, he has pain in the ankle. And I saw
22 him get up here --
23 MS. DICOLA: Objection.
24 THE COURT: Sustained.
25 Just your observations at your examination.
STEFANIE JOHNSON, Senior Court Reporter
SJ • Dr. Kaplan - Plainti~ Direct109
A.
Q.
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A. Yeah, sure. When you sit for a long period of time, as
Mr. Micky indicated to me when I saw him, your ankle could
become stiff if you have this postraumatic arthritis. When you
walk a little bit it loosens up.
Q. This postraumatic arthritis, what causes the pain and
the stiffness?
Sure. Usually--
MS. DICOLA: Objection to the form.
What causes the stiffness first?
MS. DICOLA: Your Honor, I'm sorry, I don't mean
to object to counsel all the time. Can we establish what
he examined and the findings were. I appreciate we're
going to get there eventually but I would like to know what
he is making these conclusions on.
MR. BOROWICK: Judge, I'm conducting the exam.
THE COURT: The objection is overruled. We'll let
Mr. Borowick take his strategy and time.
Should we read the question again?
MR. BOROWICK: I'll re-ask it.
Q. Describe to the jury what the body is doing when the
ankle stiffens?
A. When the joint surfaces are not smooth anymore there is
inflammation that occurs in the joint. Inflammation means
swelling of the soft tissue and fluid collection in the joint.
That stiffens the joint when the fluid collects around the soft
STEFANIE JOHNSON, Senior Court Reporter
SJ • Dr. Kaplan - Plainti~ Direct110
1 tissues in the joint and in the cartilage itself. When the body
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is not moving, when you're sitting or sl~eping, the fluid has a
chance to collect. When you stand on a joint such as the ankle
in this case and you start to move it, that literally pumps the
fluid out of the soft tissue and it frees the joint to move a
little better. It is a frequent complaint with postraumatic
arthritis, stiffness of motion after being sedentary for a
period of time. That's a common complaint.
Q. What is the mechanism for the generation of pain?
A. The mechanism that generates pain is, again, the soft
tissue are swollen. So the body perceives the stretching of the
soft tissue when you put on it, and stretching is one of the
most painful thing in the body. We know certain things cause a
lot of pain, child birth and gas, that's all stretching of soft
tissue. That's a very painful thing that the body perceives.
Same thing in the ankle that's swollen in the pain. You can
perceive pain from the stretch of soft tissue. You can see pain
on weight bearing on an abnormal joint surface and grinding of
the joint surfaces as they move one against another.
Q. Is that occurring in Mr. Micky's ankle?
A. Yes, it is.
Q. Tell the jury the difference between his complaints and
your findings. Because once we get through with the complaints
or the subjective complaints we're going to get to your
objective findings. So, would you describe the difference
STEFANIE JOHNSON, Senior Court Reporter
SJ Dr. Kaplan - Plainti. Direct111
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between subjective and objective, finish with what his
complaints were and then get to your exam.
A. Sure. In an orthopedic exam there are several portions
to the exam. One is asking, in this case, Mr. Micky what's
bothering him and he tells me what's bothering him. Those are
called subjective complaints. He tells me he has pain, he tells
me he has stiffness, things like that. Then I go and I look at
8 the joint and see if I can correlate or make a connection
9 between what his complaints are and what my findings are. My
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findings are called objective findings, meaning I'm finding
them, it's not Mr. Micky telling me. And there are certain
findings that are objective and measurable, meaning I can take a
tape measure and measure the size of his muscle. I can take a
tape measure and measure the size of the ankle joint if they're
swelling or not. I can move his foot back and forth. I can
tell him to move his foot back and forth. I can take the
measure. And those are objective findings.
Q. When you examine a patient or if you're just evaluating
him, is your goal to reconcile or correlate, clinically
correlate the subject of in the object?
A. Yes.
Q. Have you had occasions where somebody comes in and
says, noh, my back or my leg" and they turn out to be phonies
where you can't correlate your objective findings to their
subjective complaints?
STEFANIE JOHNSON, Senior Court Reporter
SJ • Dr. Kaplan - Plainti~ Direct112
STEFANIE JOHNSON, Senior Court Reporter
the objective findings to the subjective complaints, certainly.
Q. Did you have any of that experience with Mr. Micky
where you could not clinically correlate, find evidence with
your own hands and eyes and feeling that any of his complaints
were non anatomical?
A. No. All of his complaints are consistent with the
fracture of the bone that he had, surgery that he had and the
objective findings on exam and on X-ray.
Q. Did you find, based on your exam, that he was
exaggerating?
A. No, I don't think he's exaggerating at all.
Q. Tell the jury what your exam consisted of and what your
findings were. And if any of those findings were significant,
tell us why.
A. Again, I'm going to look at my notes regarding his
exam. I made some notes just by observing him, which means just
watching him. I noted that he walked with what I call an
antalgic gait. Similar to saying someone has a limp. In this
case he was favoring his right leg, babying his right leg.
Because it shows up later that it doesn't move as the left
ankle. He had an antalgic gait favoring the right.
I took his range of motion. I asked him to move and
then I moved him and those motions are the same. They were, on
the uninjured side, on the left side, he was able to move his
There are certainly cases where you cannot correlateA.1
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SJ • Dr. Kaplan - Plainti~ Direct113
1 foot up this way, dorsal flexion 20 degrees, which is about
2 normal and certainly normal for him because that's what he had
3 on his uninjured. On his injured side he has zero dorsal
4 motion. He can bring his foot flat on the ground but can't
5 bring his foot higher than that. On his good side he can
6 counterflex 50 degrees. And on the injured side, the right
7 side, he can planter flex or push down 40 degrees, he lost about
8 20 percent of his motion going down.
9 The motion of the foot turning in and out is also
10 measurable. So on the normal side, the left, he could invert to
11 30 degrees and on the injured side, the right side, he can
12 invert only to 5 degrees. He lost most of his ability to invert
13 the ankle and behind foot.
14 With eversion, which is to turn the foot out, his
15 normal was 15 degrees, which is about normal for most people,
16 and on the injured side he was about 5 degrees. He lost two
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thirds of his ability to invert his foot with his ankle.
Q. When you would put him through these ranges of motion,
were you able to feel anything going on in the joint?
A. Yes. When you move Mr. Micky's ankle on the right, he
had what's called crepitus. Crepitus is the popping and
clicking you hear in an abnormal joint. We said normally joint
moves, they slide very smoothly with no friction. When you have
a rough surface, there is crackling and popping when you move
the joint. Mr. Micky has that on the right. When you move his
STEFANIE JOHNSON, Senior Cour~ Reporter
----------------------------------------------~----~---SJ • Dr. Kapl~n - Plainti~ Direct
114
1 left ankle he does not have that. He also complained with pain
2 of passive and active motion, meaning when he moved the ankle or
3 when I moved the ankle on the right and not on the left.
4 Also in the exam I did measure his muscles, the size of
5 his muscle that moves the ankle. The muscle that moves the
6 ankle up and down is here in your calf. If you take a tape
7 measure and measure around here you get a sense of whether that
Smuscle has also seen the effects of an injury. And in this case
9 since Mr. Micky can only move a small portion of his normal
10 motion, the muscle is not -- hasn't grown and maintained itself
11 the way it normally would. We maintain our muscles bigger by
12 lifting weight or going through a range of motion. Since his
13 ankle is abnormal and doesn't allow that motion of the calf,
14 he's lost some tone and size of the calf. On the right, the
15 injured calf, I measured around it's 37 centimeters around and
16 on the left it's about an inch and a half larger at about 40
17 centimeters. On the ankle measuring around the good side is 25
18 centimeters on the left, the good side. And on the right he has
19 27 centimeters. So he's got swelling continuing on the right
20 side, the injured side.
21 He had scars both on the lateral malleolus where they
22 made that incision and the smaller incision upfront where they
23 made the incision to put the screw in from the front to back.
24 Underneath that lateral malleolus you can feel the plate and
25 screws. You can feel the hardware in the plate and steel. He
STEFANIE JOHNSON, Senior Court Reporter
SJ • Dr. Kaplan - Plaintif~ Direct115
1 complained of pain when I touched that.
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Q.
if any?
A.
What effect does weather have on a fracture like this,
Weather has effect on intra-~rticular fracture or any
5 abnormality of the joint, really. It causes pain. That occurs
6 because you heard weather man talking about the bolometric
7 pressure dropping, that's when we get rain. When the pressure
8 of the atmosphere changes, it changes the way that the joint
9 feels pressure also. When you have bolometric pressure on the
10 outside and the joint has a chance to swell.
11 Q. What is the effect of excursion? The more Mr. Micky
12 walks or weight bears, what is the effect of increased excursion
13 on the depth of his pain?
STEFAN IE JOHNSON, Sen~or Court Reporter
quicker it wears out. The forces across the joint, again, are
associated with pain, popping and cracking, st~tfness. And so
any additional force causes additional pain in wear and tear of
the joint.
Q. Now, following your clinical exam, did you do any tests
to further correlate his complaints and your clinical findings?
A. Yes.
Q. What test did you do?
A. I did an X-ray in my office of his ankle. Again, this
is several years after his fracture but the sequela of that
fracture are permanent so we can still see them on X-ray.
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A. The more forces that an abnormal joint sees, the
SJ • Dr. Kaplan - Plaintife Direct116
STEFANIE JOHNSON, Senior Court Reporter
A. I do.
Q. Theie's a shadow box. Put them on here on the bar on a
way they won't falloff. Would you step down, with the Court's
permission, and take us through that.
(Whereupon, the witness stepped down from the
witness stand and stood in front of the jury displaying
X-rays. )
A. I have X-rays from my office with Mr. Micky's name on
them and the date they were taken, which was August 3rd of 2010.
This is a view of Mr. Micky's ankle looking from front
to back. Here's the foot here. Looking like this. So here's
the foot in front, this is the big toe. This is the lateral or
outside portion of the 'leg and this is the fibula. This is the
tibia, the major weight bearing bone that was broken in the
back. Here are the plate and screws on the side of the fibula
still in place. You can see down here the screws are pretty
prominent, they're both up against the skin. And you can feel
them, as I said, through the skin and sticking off of the bone.
When you look at this X-ray, and I look at X-rays all
the time, I notice things when I~m looking at this X-ray that
there is a loss of the joint space between the tibia and the
talus here. It's almost bone on bone here. The space that is
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Q.
A.Q.
Did you bring in X-rays?
I did.
Do you have them with you?
SJ • Dr. Kaplan - Plaintif~ Direct117
1 normal between the bones is not air. You're not walking on air.
2 You're walking on a layer of cartilage, like we talked about.
3 So why the X-ray only shows us the bones, it doesn't show us the
4 skin and it doesn't show us this padding of cartilage between
5 the bones. When that padding of cartilage gets damaged and it
6 gets worn away, those bones look like they get closer and cioser
7 together. That's why we say we have bone on bone arthritis.
8 When you look at the X-ray we have very little space
9 between the bones of the joint. Normally there would be a thick
10 space there that allows for the motion. So you have the
11 hardware in place and you have bones in place. Additionally,
12 when you look at this X-ray, you see some calcification in the
13 space between the tibia and the fibula. That indicates there
14 was damage in the soft tissue between those which is a ligament,
15 the tissue between bones. This is an X-ray injury of a soft
16 tissue is visible. And there are multiple areas where you have
17 formation of bone spurs, which is the pointed area at the end of
18 the bone that is normally sort of smoo~h. Normally it's smooth
19 like that. And here we have sharp edges, bone spurs. That's a
20 change in the bone because the cartilage overlining that bone is
21 not protecting it anymore. We get spurs.
22 We get X-ray pictures and that's what we correlate
23 where arthritis and postraumatic arthritis, arthritis that came
24 from trauma. This is the same day, same foot, Mr. Micky's foot,
25 just taken from the side so that what we're looking at now is
STEFANIE JOHNSON, Senior Court Reporter
SJ • Dr. Kaplan - Plaintif~Direct118
1 the foot this way, okay. You can see the plate on the fibula
2 from the side and you can see that screw that was directed from
3 front to back, again, catching this piece that was broken. You
4 can see also there is irregularity of the bone surface, that's
5 the joint surface in the cartilage where that fracture was. And
6 you could also see again bone spurring here on the end of the
7 tibia indicating progressive changes consistent with arthritis.
8 Q. You can resume your seat. Pull the X-ray down. The
9 box off. And I'll finish up with my questions.
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(Whereupon, the witness resumed the witness
stand. )
MR. BOROWICK: Your Honor, can we deem those
X-rays marked in evidence and we'll just do the bookkeeping
after?
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17 Q.
MS. DICOLA: That's fine.
THE COURT: Yes.
Doctor, would you tell the jury, based upon your X-ray
18 study or clinical exam, your taking of the history, you have an
19 opinion with a reasonable degree of medical certainty as to what
20 the diagnosis of the injury was and the condition as it is now?
21 A. Yes. My diagnosis is that he had a displayed
22 intra-articular fracture that you see was comminuted which
23 required open reduction and internal fixation surgery. He now
24 has posttraumatic arthritis of the ankle. That goes along with
25 his continued swelling. He has loss of motion, his atrophy, the
STEFANIE JOHNSON, Senior Court Reporter
SJ • Dr. Kaplan - Plaintif~ Direct119
loss of muscle bulk of the leg.
Q. Is the atrophy, the swelling and the postraumatic
arthritis, are they temporary or are they permanent?
A. They are permanent injuries.
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Q.
A.
Are they static or are they progressive?
The postraumatic arthritis is not only permanent but it
7 is progressive which means it will get worse over time.
8 Q. I think you discussed the effect of weather and
9 exertion. I want you to assume for a moment that Mr. Micky had
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been working as an assembly line, working, earning about three
hundred dollars plus a week. He had tried since the accident to
go back to drive a cab, to be a patrol person on a security
force. Are these jobs, if you were his doctor, are these jobs
you would recommend he do or he don't do?
A. These jobs which require extensive standing, extensive
walking, the use of the right foot to work a gas pedal, sitting
for periods of time and then getting out of the cab to load
bags, things like that, I will not recommend to do. They will
not only increase pain but it will increase aware and speed of
aware on the ankle.
Q. I want you to assume that he was an ankle sportsman, he
played soccer, he ran on a regular basis, he liked to walk
distances, sometimes to work, and he also lives in a walk up
with some steps from the street and then to the second floor.
Do you -- as a doctor who has examined him, are these activities
STEFANIE JOHNSON, Senior Court Reporter
SJ • Dr. Kaplan - Plaintif~Direct120
1 that you would recommend he continue, first to the sports?
2 A. No, I would not recommend that he do sports, certainly
3 soccer which requires a lot of start stop and cutting. It's
4 very hard on the ankles. With a stiff ankle like this it would
5 be painful, it would increase the wear and tear on the ankle and
6 can be dangerous.
STEFANIE JOHNSON, Se~iorCourt Reporter
have the range of motion necessary to run properly.
Q. Of what effect would there be that he has to climb all
those stairs?
A. Climbing stairs puts a good deal of force on the ankle,
much more than just your simple body weight of pushing up as
you're accelerating. Each step is a lot of force on the ankle
and does increase the pain on the wear and tear on the ankle.
Q. Did he undergo physical therapy as an outpatient?
A. Yes, he did.
Q. Did it reverse his disease?
A. That does not reverse the disease. It does not cure
the arthritis in the ankle.
Q. Did it eliminate his pain?
A. It does not eliminate the pain caused by the arthritis
in the ankle.
Q. If he can afford physical therapy over the last seven
years would have changed the result?
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Q.
A.
How about running?
Running would be difficult for him. Again, he does not
SJ • Dr. Kaplan - Plaintif. Direct121
1 A. It would not have changed the result of the progressive
2 posttraumatic arthritis of his ankle.
3 Q. Do you have an opinion, sir, as to whether or not he
4 .will need medical care in the future?
5 A. I have advised him with some exercises, to try to
6 maintain his motion. I have talked to him about medical care
7 which would include oral antiinflammatory medication and surgery
8 to his ankle. With the posttraumatic arthritis that I discussed
9 is looking inside the ankle, trying to clean it out to give him
10 some more motion in the ankle. Unfortunately with the amount of
11 postraumatic arthritis, sometimes we run into a situation where
12 you give someone more motion you actually increase the aware in
13 the ankle.
14 And I told him that he is also a candidate for a
15 surgery called an ankle fusions or an ankle arthrodesis, which
16 is to try to decrease the pain in the ankle and stop the
17 progression of the arthritis by removing the ankle joint.
18 Removing the joint surfaces and making the ankle stiff.
19 The patient has motion in their knee and their foot but
20 no more motion in their ankle. That is what's called a salvage
21 procedure when postraumatic arthritis has progressed to the
22 point that the patient can no longer tolerate doing activities
23 if they need to do such as walking or getting to your home.
24 Q. Do you have an opinion with a reasonable degree of
25 medical certainty in your field as to whether or not he will
STEFANIE JOHNSON, Senior Court Reporter
SJ Dr. Kaplan - Plaintiff4ltDirect122
1 need that surgery to get into the ankle to give him more motion?
2 A. I believe that over time this will get worse and worse
3 and I believe that he will be needing that surgery. Again, he's
4 a candidate for it now which means it would not be inappropriate
5 to do at this point.
cost, anesthesia cost, how much is that surgery in present
dollars?
A. I gave a range of costs in my -- when I discussed this.
Those costs are anywhere from thirty to fifty thousand dollars
including the surgery, the hardware that's necessary of the
surgery, the removal of the hardware, the anesthesia, the
hospital stay, the medications that are required, including
narcotics pain, medications after surgery, and the physical
therapy that would be recommended.
Q. Do you have an opinion with a reasonable degree of
medical certainty as to whether or not his conditions and his
future conditions which you've described, whether or not that's
related to the fall?
A. It is my opinion that his injuries to his ankle which
caused the fracture and caused the permanent and progressive
injuries that we see now were caused by the fall of 12/27/02.
MR. BOROWICK: Thank you, I have nothing further.
THE COURT: Take a quick break. Members of the
jury, we're going to take a quick break. Almost 4:15.
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Q. How much is the cost, soup to nuts, hospital cost, your
STEFANIE JOHNSON, Senior Court Reporter
SJ • Dr. Kaplan - Plaintif~ Cross123
1 Let's take a quick break so we can try to be done in the
2 next forty-five minutes.
3 (Short break taken.)
4 THE COURT: .Ms. Dicola, please proceed.
5 CROSS-EXAMINATION
6 BY MS. DICOLA:
STEFANIE JOHNSON, Senior Court Reporter
Q. He has never been your patient, correct?
A. That's correct.
Q. And even though you saw him on August 3, 2010 you
haven't seen him since, correct?
us both that I speak fast and you speak fast. I'll try to speak
slow if you try to speak slow.
You saw Mr. Micky for the first time on August 3 of
2010, correct?
A. Yes.
Good afternoon, Dr. Kaplan. The court reporter warnedQ.
A. Right.
Q. And although you gave him instructions about home
exercises, he hasn't had any follow-up care with you since
August of 2010, correct?
A. That's correct.
Q. And although you've made recommendations about future
care and treatment, he mayor may not need, you have no future
appointments made at this time, is that fair to say?
A. That's correct.
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1 Q. Now, when Mr. Micky first saw you, you took a history
2 from him, correct?
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Q.
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Yes.
And you performed a physical exam, correct?
Yes.
You ultimately prepared a report that you're referring
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Yes.
You prepared the report the same day as the exam?
Yes.
Ultimately this report was sent to plaintiff's
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Yes.
So you knew, Dr. Kaplan, that when you were examining
15 Mr. Micky that there was already a lawsuit pending regarding his
16 claim of how the accident happened, correct?
you note that he claims he tripped and fell, correct?
A. That's what he said, yes.
Q. And yet in further on in your report --
MR. BOROWICK: I think you misread that.
MS. DICOLA: I'm looking at the second paragraph
top line.
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Yes, I assumed there was, certainly.
Certainly in your report as part of the history section
And yet in addition to examining Mr. Micky and taking a
STEFANIE JOHNSON, Senior Court Reporter
SJ • Dr. Kaplan - Plaintif~ Cross125
1 history, you also had the opportunity to review the medical
2 records in connection with this accident, correct?
A. Yes.
Q. For your purposes, although it's always important to
understand the mechanism of the injury, it's not relevant, from
an orthopedic standpoint, whether it was a curb, a sidewalk, a
records, correct, doctor?
A. It's helpful, yes.
Q. Certainly it's not every person is familiar with maybe
the type of treatment they had or the type of operation they had
and you as a doctor are the best expert to know what would
happen and to explain it to a jury, correct?
A. Yeah, sure.
Q. Now, having reviewed the medical records, you note in
your report that the medical records indicate that he slipped
and fell on ice, correct?
A. There were, as we said before, multiple different
stories in the record, yeah.
Q. Now, Doctor, to be clear, a bi-mal fracture can occur
as a result of a trip and fall, correct?
A. Yes.
Q. And it can occur as a result of a slip and fall,
correct?
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Yes.
And it's always important to review the medical
STEFANIE JOHNSON, Senior Court Reporter
SJ • Dr. Kaplan - Plaintife Cross126
1 roadway, a lobby, it doesn't matter from your perspective?
A. Not that I'm aware.
Q. Now, during your exam, you took complaints, you listed
what his complaints were?
A. Yes.
Q. It's important though to note that tnere's nothing
contributing to it to the extent that maybe somebody is dizzy or
fall, something along those lines?
A. Those things help, sure.
Q. There's no indication that anything physically
contributed to Mr. Micky's accident such as dizziness or the
like?
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14 Q. You also noted what his employment was at the time,
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16 A. Yes.
17 Q. And at no point and time, Dr. Kaplan, would you agree
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with me -- well, let me ask you this. When was he released from
the hospital based on the records; if you know off the top of
his head or if you know?
A. I believe he spent about three days in the hospital.
Q. And Doctor, although the surgery is serious, for sure,
approximately how long does a procedure itself take from
beginning to end?
A. It's different depending on how hard it is to reduce
STEFANIE JOHNSON, Senior Court Reporter
SJ • Dr. Kaplan - Plaintife Cross127
1 the deformity. But it can take anywhere from an hour. We've
2 had cases where it lasts four and a half, five hours.
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Q. Based on the operative report in this case, Dr. Kaplan,
would it indicate how long, approximately, Mr. Micky's surgery
took?
A. Sometimes they do. This one in the type operative
report I did not see an indication of how long the surgery was.
Q. And you certainly, Doctor, perform the surgery on a
regular, if not routine, basis, correct?
A. I perform this fairly frequently, yes.
Q. Based upon your review of the records and coupled with
Mr. Micky's history, you would agree, sir, that his treatment
was appropriate, correct?
A. Yes, the surgery was definitely necessary.
Q. And that everything was done without any issues
arising, correct?
A. That's correct.
Q. And it was in fact successful from an orthopedic
standpoint?
A. Yes, that's correct.
Q. Now, after Mr. Micky was released from the hospital,
you indicated that he underwent physical therapy, correct?
A. That's correct.
Q. Do you have those physical therapy records with you?
A. Yes.
STEFANIE JOHNSON, Sen~or Court Reporter
SJ • Dr. Kaplan - Plaintif~ Cross128
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for?
Q.
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Approximately how long did he attend physical therapy
He had physical therapy in the hospital and then he had
4 it, looked like about ten visits after he was released.
correct?
STEFANIE JOHNSON, Senior Court Reporter
take post-surgery?
A. Right.
Q. So that would put us about January maybe early February
of 2003, correct, of treatment for Mr. Micky?
A. I believe the therapy was a little bit later into
April.
Q. Okay. So let's assume April of 2003. You have no
records of Mr. Micky getting any type of treatment past April of
2003, correct?
A. That's correct.
Q. Now, and you indicated on direct, Dr. Kaplan, that
there's a variety of treatments available to somebody in Mr.
Micky's position, correct?
A. Yes.
Q. There are certainly conservative type of treatment
whether they be prescription medications, there are exercises
such as the ones you prescribe that he do at home and the like,
About twice a week, would that be fair to say?
Yes.
So about five weeks, give or take, five weeks give or
Q.
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Q.
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STEFANIE JOHNSON, Senior Court Reporter
years since he stopped treatment has he ever gone and been
prescribed medication, correct?
A. Not by a doctor, that's correct.
therapy, correct?
A. Not since April of '03, as far as I know.
Q. And although perhaps, Dr. Kaplan, we can't say for sure
well, let me ask it this way. Would you agree with me, Dr.
Kaplan, based upon what you testified on direct that arthritis
would have developed regardless of what kind of treatment he
received after the surgery?
A. Absolutely.
Q. Would you agree with me, Dr. Kaplan, that oftentimes
arthritis does happen in people irrespective of a traumatic
injury such as this?
A. Absolutely. We all get a little arthritis over the
time from wear and tear in the joints. This is different
arthritis from wear and tear. This is posttraumatic from the
fracture of the joint.
Q. Would you agree with me, Dr. Kaplan, that although
maybe not curable but taking conservative actions such as
antiinflammatories, performing exercises and the like could have
delayed arthritis in the like in the case of Mr. Micky, isn't
Yes.
And at no point during the approximate almost now eight
And to your knowledge, has he ever attended physical
A.
Q.
Q.
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STEFANIE JOHNSON, Senior Court Reporter
conservative option?
A. I'm not sure what you mean.
that why it's prescribed and recommended?
A. It can decrease the symptom, it doesn't decrease the
progression of the arthritis.
It's always worthwhile to consume a rather than going
And nevertheless it should be pursued as a lessQ.
Q.
to a severe?
A. Try conserve treatment before the surgery absolutely.
Q. Which is why even in August of 2010 you recommended
just minor conservative type treatment such as the exercises
rather than rush him into the emergency room to perform another
surgery, correct?
A. Absolutely.
Q. Now, by the way, Doctor, because you are currently not
with your patients today, what is the fee the office is
charging?
A. The office receives sixty-five hundred dollars. I
receive the payment whether I'm in here or in the office seeing
.patients. It's an office fee.
Q. And so because you're testifying on behalf of plaintiff
in this case you're not treating your patients, correct?
A. I pushed off my appointments for this afternoon, that's
correct.
Q. Now, you indicated, Dr. Kaplan, that you have testified
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on behalf of both plaintiff such as Mr. Micky and defendants?
A. That's correct.
Q. And Mr. Borowick has never hired you before?
A. That's correct.
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And neither have I?
That's correct.
Now, you indicated both in your report and on direct
8 that you took a history of Mr. Micky in terms of life experience
9 and in terms of whether or not he had ever sustained any injury
10 before, correct?
Micky played soccer, are you aware of that?
A. Yes.
Q. It's not noted on your report though?
A. No.
Q. Are you aware of any soccer player with the starts, the
stops, the cuts who never sprained their ankle before?
MR. BOROWICK: Objection.
THE COURT: Sustained.
Q. Doctor, the medical records you were given were solely
Mr. Micky's St. Barnabas records, correct?
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Right.
And he denied that, correct?
That's correct.
Doctor, you heard counsel ask you on direct that Mr.
That's correct.
STEFANIE JOHNSON, Senior Court Reporter
STEFANIE JOHNSON, Senior Court Reporter
A. These I believe were provided from the plaintiff's
attorney.MS. DICOLA: I think that's all my questions.
MR. BOROWICK: Just a few follow-up .
REDIRECT EXAMINATION
BY MR. BOROWICK:Q. Counsel suggested that we all get arthritis and people
all get arthritis. You said this isn't that kind of arthritis.
1324It Dr. Kaplan - Plaintiff~edirect
Q. You have no way of confirming or denying or checking
any of his prior medical history, correct?
MR. BOROWICK: Objection.
THE COURT: Overruled.
A. I have not seen his medical record prior to this
injury, that's right.Q_ And for your purposes what was important was whether or
not the treatment was appropriate as a result of this accident
and what his condition is today, correct?
A. Yeah. I obviously did ask him about his prior history,
and he did not have significant injury that he related to me nor
have I seen any medical record which would be available of any
prior history.Q. The medical records that were provided to you, is that
from an authorization served by your office or were the medical
records provided by plaintiff's attorney to you or something
else?
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SJ ~ Dr. Kaplan - Plaintiff ~edirect133
1 Did he have arthritis in the other ankle?
STEFANIE JOHNSON, Senior Court Reporter
He did not have any symptoms of arthritis in the other
Does antiinflammatory -- does prescriptionQ.
antiinflammatory medication cost money?
A. Yes. Even non prescription antiinflammatory medication
cost money.
Q. Does physical therapy by a licensed physical therapist,
does that cost money?
A. Yes, in fact we do physical therapy in our office.
It's about one hundred to one hundred fifty dollars a visit.
MR. BOROWICK: Thank you. Nothing further.
RECROSS EXAMINATION
BY MS. DICOLA:
A. It's my opinion that the arthritis that he has is
postraumatic arthritis meaning from the fracture.
Q. Counsel brought up something about physical therapy
would be great and prescription medication be great. If you
don't have health insurance through a job or you don't have it
privately, you don't have any money, do you know anybody that is
giving away antiinflammatory prescription medication?
MS. DICOLA: Objection.
THE COURT: Sustained.
A.
ankle.
Q. Is there any question but that his arthritis in the
right ankle is related to this injury?
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SJ • Dr. Kaplan - Plaintiff .ecross134
1 Q. Doctor, have you ever turned away a patient for their
2 inability to pay for your services?
3 MR. BOROWICK: Objection.
4 Irrelevant.
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THE COURT: Overruled.
You can answer, please.
I have certainly sent patients to hospital, city
8 hospital clinics, if they need surgery and they don't have
9 coverage, absolutely. I'm not a charity. I do some charity
10 work but I have to pay my staff and we certainly have turned
11 people away. We try to make arrangements for them but we
12 certainly turn them away.
13 Q. Because ultimately you care about them getting proper
14 treatment. correct?
15 MR. BOROWICK: Objection.
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THE COURT: Let's move on. Sustained.
Dr. Kaplan, you may step down.
(Whereupon. the witness was excused.)
THE COURT: Members of the jury, we're going to
part for the day. Please do not discuss the case with
anyone, juror or not. Do not visit the scene. We hope to
complete tomorrow. So the earlier we start. the earlier we
can get going. Please be assembled by five to ten so we
can start at ten o'clock. okay. Thank you for your
patience.
STEFANIE JOHNSON, Senior Court Reporter