83 SJ Dr. Kaplan - Plaintif. Direct 1 A. Yes. pltf ortho J Kaplan.pdfTHE COURT: You can step down. (Whereupon, the witness was excused. ) MR. ... SJ • Dr. Kaplan - Plaintif~ Direct

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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SJ • Dr. Kaplan -Plaintif~Direct84

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



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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• Dr. Kaplan - Plaintif~ Direct85

SJ • Dr. Kaplan - PlaintifAit Direct86

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A.

Q.

Yes.

Would you explain to the jury what it means to have the

3 credentials of board certification?


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


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


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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• Dr. Kaplan - Plaintife Direct89


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


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


--------_._- --------------------------------- --


1 right ankle.

2 Q. Did it disrupt the articular cartilage?

arthritis?


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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SJ • Dr. Kaplan - Plaintife Direct96

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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,


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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SJ • Dr. Kaplan - Plaintiftlt Direct98

1 Q. Now, when a doctor says surgery was successful, what

2 does that mean to a doctor?


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


-~

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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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.



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?


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?




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



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


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


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.



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



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


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?




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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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



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


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?


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


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



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


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


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


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


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:


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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SJ • Dr. Kaplan - PlaintifAit Cross124

1 Q. Now, when Mr. Micky first saw you, you took a history

2 from him, correct?

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A.

Q.

A.

Q.

Yes.

And you performed a physical exam, correct?

Yes.

You ultimately prepared a report that you're referring

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A.

Q.

A.

Q.

Yes.

You prepared the report the same day as the exam?

Yes.

Ultimately this report was sent to plaintiff's

12 attorney, correct?

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Q.

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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A.

Q.

Q.

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



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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A.

Q.

Yes.

And it's always important to review the medical


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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A. That's correct.

14 Q. You also noted what his employment was at the time,

15 correct?

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



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


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for?

Q.

A.

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?


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.

A.

Q.

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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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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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Q.

A.

Q.

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.


Q. Doctor, the medical records you were given were solely

Mr. Micky's St. Barnabas records, correct?

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A.

Q~

A.

Q.

A.

Right.

And he denied that, correct?

That's correct.

Doctor, you heard counsel ask you on direct that Mr.

That's correct.



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.


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?

SJ

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SJ ~ Dr. Kaplan - Plaintiff ~edirect133

1 Did he have arthritis in the other ankle?


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?



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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7 A.


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.


83 SJ Dr. Kaplan - Plaintif. Direct 1 A. Yes. pltf ortho J Kaplan.pdfTHE COURT: You can step down. (Whereupon, the witness was excused. ) MR. ... SJ • Dr. Kaplan - Plaintif~ Direct

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