Jury awards $1.35M to Baltimore man in case over broken leg

A Baltimore man who lost much of his ability to walk has won a $1.35 million jury verdict against a Baldwin orthopedic surgeon who negligently failed to properly set and monitor the left leg the man broke in a fall from a ski lift five years ago.

But the Baltimore County Circuit Court jury’s award to Richard Martinez in his case against Dr. Zia A. Zakai will be reduced to $1 million due to Maryland‘s statutory cap on non-economic damages.

The award will enable Martinez to retrofit his two-story house with ramps and a stairlift, as he is unable to climb steps or walk for more than 15 feet without the aid of a walker or scooter, said his attorney, J. Michael Harrison.

“He will have the ability to get the assistance that he needs so he is no longer a prisoner in his own home,” added Harrison, of Dumer, Harrison & Barnes PA in Bel Air. “It will allow him to regain some of the dignity that was taken away from him as a result of Dr. Zakai’s failure to provide him with proper medical care.”

Zakai has vigorously denied the allegations of malpractice, said his attorney, Anthony J. Breschi.

“We felt that we presented a strong case that his treatment was appropriate and he met the standard of care,” added Breschi, of Waranch & Brown LLC in Lutherville. “The jury was influenced, at least in part, by sympathy for Mr. Martinez.”

Breschi noted that Martinez, who suffers from diabetes, had a stroke in 2009 that was unrelated to his leg injury.

Settlement talks between the two sides broke down before trial. The final offer from the plaintiffs was $1 million, according to attorneys for both sides.

Breschi said he and Zakai are “still reviewing” whether to appeal.

Zakai operated on Martinez two days after the Dec. 28, 2006, fall in southern Pennsylvania that broke the then-recreational snowboarder’s tibia and fibula. During the operation, Zakai inserted a plate and screws to address the fractures.

At a follow-up visit on Feb. 12, 2007, Zakai fitted Martinez with a brace and told him to use crutches. Two weeks later, Zakai told Martinez he could discard the brace at night and permitted him to return to work on March 5, 2007, according to the lawsuit.

On March 26, 2007, Zakia fitted Martinez with a new brace. Martinez last saw Zakia on April 16, 2007, at which time the doctor told him he could increase his activities, Martinez alleged.

But two months later, Martinez experienced pain in his left leg. Two days later, he visited another orthopedic surgeon, John C. Gordon, who ordered X-rays, which revealed the tibia fracture was not healing, according to the lawsuit.

Subsequent tests, including a CT scan, showed that two of the screws were not solidly anchored. Gordon placed Martinez’s leg in a walking boot, according to the lawsuit.

Martinez, 49, continues to experience pain as his left leg turns inward. He can only step down on the outside of his left foot, Harrison said.

In the lawsuit, Martinez alleged that Zakai breached the medical standard of care by failing to monitor and evaluate the healing process frequently after having inserted the plate and screws. The lawsuit also alleges that Zakai negligently permitted Martinez to place partial weight on his left foot “without reliable evidence” that the bone had sufficiently healed.

In addition, the doctor did not conduct frequent periodic X-ray and CT studies to ensure the plate and screws had stayed in place, according to the lawsuit filed July 30, 2010.

The jury found Tuesday that Zakai had committed medical malpractice that caused Martinez’s lasting injuries. The jury excused Franklin Square Hospital — a named defendant in the lawsuit — of liability after concluding that Zakai, who worked there, was not an agent of the Baltimore facility when he treated Martinez at the doctor’s private office.

The jury’s award of $1.35 million included $1 million in compensation for Martinez’s pain and suffering. That portion of the award will be reduced to $650,000 under Maryland’s statutory cap on non-economic damages, thus bringing the total to $1 million, Harrison said.

“The jury thought that Mr. Martinez was entitled to a million dollars for his pain and suffering,” the attorney added. “Unfortunately, Mr. Martinez does not get the full benefit of what the jury awarded him because of the statutory cap.”

RICHARD MARTINEZ V. ZIA A. ZAKAI

Court:

Baltimore County Circuit Court

Case No.:

03C10009470

Judge:

Sherrie R. Bailey

Outcome:

Plaintiff’s Verdict

Dates:

Event: Dec. 30, 2006-April 16, 2007

Suit filed: July 30, 2010

Trial: Feb. 14, 2012-Feb. 21, 2012

Jury Verdict: Feb. 21, 2012

Plaintiff’s Attorneys:

Gary E. Dumer Jr., J. Michael Harrison and Wilson K. Barnes III of Dumer, Harrison & Barnes PA in Bel Air.

Defendants’ Attorneys:

Anthony J. Breschi and Neal M. Brown of Waranch & Brown LLC in Lutherville.

Plaintiff’s Experts:

Andrew J. Collier, orthopedic surgeon; Mona Yudkoff, life care planner, Mark Lucas, vocational rehabilitation; and Richard B. Edelman, economist.

Defendant’s Experts:

Michael Dvorkin, orthopedic surgeon; and Trudy Koslow, life care/vocational rehabilitation.

Count:

Medical negligence.