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How to prove no factual basis even with knee surgery

April 24, 2020
By: Frank Scahill

Dr. Sanford Wert is an orthopedic surgeon we also see frequently on our files. Disputing a claim with a knee or shoulder surgery requires a well thought out cross-examination. How do we prove to a jury the plaintiff's claims of a knee injury which required surgery has no factual basis? Review the cross-examination attached by Charles Mailloux of our firm in a Queen's case, Keumok Han v. Spyridon Spetsieris (707898/17) from October 2019 where Dr. Wert claimed a motor vehicle accident caused a torn meniscus requiring surgery. It is hard to conceive a better result than the admissions received in this case.  On Cross-Examination, Dr. Wert was confronted with the following: 

Q. Would it be fair to say that the three indications for surgery are a complaint of pain, a positive diagnostic finding, and a failure of conservative treatment?
A. Yes, that's reasonable.
Q. Reviewing your report, could you describe what your findings were with regard to swelling?
A. No mention of swelling, just range of motion, and certain tests.
Q. What about testing? You performed specific tests on the Plaintiff's left knee?
A. Yes.
Q. And one of those tests that you did was a McMurray's test?
A. Yes.
Q. And a McMurray's test, correct me if I'm wrong, Doctor, is a test that can be used to identify a tear in an individual's  meniscus; is that correct?
A. Yes.
Q. And what were your findings for your McMurray's test performed on the Plaintiff on September 28, 2016?
A. Negative.
Q. You also performed an anterior drawer test; is that correct?A. Yes.
Q. Could you describe for the jury what that test was?
A. Anterior drawer is a test where you flex the knee to 90 degrees and try to pull the lower leg forward.
Q. And what were your findings on that exam?
A. That was negative.
Q. You also did a Lachman's test on the Plaintiff's left knee that day?
A. Yes.
Q. What were your findings on that test?
A. That was negative.
Q. What does Lachman's test test?
A. ACL, anterior cruciate ligament.
Q. You also did a valgus instability test?
A. Yes.
Q. And a varus instability test, correct?
A. Yes.A. They were negative.
Q. But what are you using that test for?
A. Ligaments. Medial and lateral collateral ligaments.
Q. So those tests that you did, would it be fair to say that they were aimed at looking into every part of the Plaintiff's knee in order to see if something was going on clinically?
A. Yes.
Q. And you didn't have any findings, any positive findings at all upon your examination of the Plaintiff's knee when she  first saw you, correct?
A. Correct.
Q. Would it be fair to say that if the Plaintiff was responding well to conservative treatment that she would not be  a candidate for surgery; is that correct?
A. Yes.
Q. Now, would it be fair to say when we look at the indications of surgery on September 28, 2016, Ms. Han was not a candidate for surgery to her left knee?
A. Correct.
Q. So the Plaintiff on September 28, 2016, was not a candidate for surgery, and then you performed surgery without even a further evaluation, correct?
A. Correct.

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