ROCKVILLE – A Montgomery County jury has found in favor of a Kensington orthopedic practice sued by a former patient who alleged he lost use of his left arm following surgery almost four years ago.
The verdict for Montgomery Orthopaedics P.A. and Dr. Harrison Solomon followed a seven-day jury trial in Montgomery County Circuit Court earlier this month.
Solomon operated on Jonathan Rose on Aug. 26, 2011 to repair a ruptured biceps tendon, according to court documents. Rose had injured his left arm six days earlier when overextended his elbow trying to lift a gate, at which point he felt a “pop,” according to the complaint.
X-rays showed the extent of the injury and surgery was recommended, but Rose alleged he was not informed before the surgery of “the material risks associated with the procedure,” according to his complaint, filed in January 2014.
One day after surgery, Rose began to feel “an intense, burning-like sensation” from his left hand through his shoulder, as well as “marked numbness and tingling in his fingers and hand,” the lawsuit states.
Rose returned to Montgomery Orthopaedics on Aug. 31, where it was “evident he had wrist drop,” a nerve paralysis that prevented him from extending his wrist, according to a defendants’ motion for summary judgment.
“Dr. Solomon explained to the patient that this condition may spontaneously resolve over time,” the motion states.
Solomon advised Rose to continue attending occupational therapy and, if there was no improvement in three to six weeks, to undergo an electromyography, a diagnostic test of the arm muscles, according to the motion.
A week later, doctors observed improvement in Rose’s condition, “a reassuring sign of spontaneous recovery of the nerve,” the motion states. But Rose did not return for therapy for another five weeks, at which point he informed Solomon he would be switching his care to another doctor, the motion states. Rose had “good range of motion of his elbow” and was able to turn over his hand, the motion states.
“Because of the plaintiff’s failure to appear for office visits and his decision to transfer care … Dr. Solomon was deprived of the ability to monitor and assess plaintiff’s clinical progress and assess the need for any diagnostic studies after Sept. 14, 2011,” the motion states.
Rose’s lawsuit counters that Solomon, after being asked whether the damage was caused by anesthesia, said, “Nope, it was me” and explained how the placement of a surgical “button” on the repaired tendon might have damaged nerves.
Rose underwent an EMG at another practice in October 2011 that saw “severe, chronic and active nerve damage,” the complaint states. A follow-up EMG five months later saw only “moderate improvement,” the complaint states.
But the defendants countered that the nerve weakness was discovered in Rose’s upper arm, which was “far removed” from the surgery site on Rose’s forearm, according to the motion for summary judgment. Rose also underwent exploratory surgery last November that did not find “any injury to any nerve,” according to the motion.
A plaintiff’s expert said Solomon breached the standard of care by failing to order an EMG and a neurosurgery consultation within three-to-six weeks of surgery, according to the defense motion. But even if the defendants were negligent, they argued Rose could not prove the defendants’ actions directly caused the nerve damage.
Susan B. Boyce, a lawyer for Solomon and Montgomery Orthopaedics, did not respond to a request for comment. Boyce is a partner with Armstrong, Donohue, Ceppos, Vaughan & Rhoades Chtd. in Rockville.
Rose’s lawsuit states he continues to suffer from “excruciating pain” and cannot use left hand and arm for “the most simple daily activities.”
Rose’s lawyer, John Yannone, declined to comment on the case. Yannone is with Price Benowitz LLP in Washington, D.C.
Jonathan Rose v. Montgomery Orthopaedics, et al.
Court: Montgomery County Circuit Court
Case No.: 386490V
Judge: Cheryl A. McCally
Outcome: Verdict for defendants
Dates: Incident: Aug. 26, 2011
Suit filed: Jan. 24, 2014
Verdict: April 14, 2015
Plaintiff’s Attorney: John Yannone of Price Benowitz LLP in Washington, D.C.
Defendants Attorneys: Susan B. Boyce of Armstrong, Donohue, Ceppos, Vaughan & Rhoades Chtd. in Rockville
Counts: Negligence, informed consent