Preview
FILED: SUFFOLK COUNTY CLERK 12/14/2023 05:31 PM INDEX NO. 602919/2019
NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 12/15/2023
SUPREME COURT OF THE STATE OF NEW YORK Index No. 602919/19
COUNTY OF SUFFOLK
-------------------------------------------------------------------X AFFIRMATION IN
PAUL BERTRAM, SUPPORT
Honorable Justice
Plaintiff(s), Carmen Victoria St. George
-against-
TSAI-LUNG TSAI and ORANGE REGIONAL
MEDICAL CENTER
Defendant(s).
-------------------------------------------------------------------X
Robert Godosky, Esq., an attorney duly admitted to practice law before the Courts of the
State of New York, hereby affirms the following to be true under the penalties of perjury:
1. I am a member of the law firm Godosky & Gentile, P.C., attorneys for plaintiff in
the above captioned action. I respectfully submit this Affirmation in support of the within
Motion. As trial counsel, I am familiar with the facts and circumstances of this case.
2. This affirmation is submitted in support of plaintiff's motion to set aside the jury’s
verdict which was returned in favor of the defendant on November 1, 2023, and directing that
judgment be entered in favor of plaintiffs or in the alternative, granting a new trial pursuant to
CPLR §4404(a) based on the ground that the jury verdict was contrary to the weight of the
credible evidence and in error as a matter of law.
3. This case arises out of a series of acts and omissions by defendant, Dr. Tsai-Lung
Tsai from June 3, 2018, through June 4, 2018, resulting in plaintiff, Paul Bertram sustaining
serious personal injuries to his left hand.
4. As the Court is aware, the trial of this matter commenced on October 26, 2023,
and continued daily until the jury returned a verdict on November 1, 2023 (The trial transcript is
attached hereto as Exhibit “A” and referred to herein as T and page number which refers to the
PDF copy pages attached as Exhibit “A”).
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5. Two liability questions were submitted to the jury. Specifically, the jury was
asked whether Dr. Tsai departed from accepted medical practice in failing to timely perform a
"washout"
of the contaminated wound prior to noon on June 4, 2018, and whether Dr. Tsai
departed from accepted medical practice in failing to timely reduce the fracture fragments prior
to noon on June 4, 2018. The jury returned a unanimous verdict in favor of the defendants on
both departures and did not reach the causation questions.
6. The evidence so preponderates in favor of the plaintiff that no rational jury could
have reasonably concluded that the defendant was not negligent. The evidence overwhelmingly
indicated that the defendant was negligent in the care and treatment provided to the plaintiff.
There were two separate bases of liability against the defendant upon which there can be no
legitimate dispute.
DEFENDANT FAILED TO TIMELY PERFORM A
WASHOUT OF PLAINTIFF'S WOUND
7. On the first departure presented, the jury erroneously found that the defendant did
not depart from accepted medical practice in failing to timely perform a washout of the
contaminated wound.
TRIAL TESTIMONY
8. The most compelling testimony on this issue came from the defendant himself,
"washout" important"
who without any reservation stated that the was "very to be done as soon
as possible (T. p 23). There is no dispute that this was not done, and the jury could not have
reasonably reached the verdict they did on this departure.
9. Dr. Tsai testified very clearly that the washout was important to be done as soon
as possible. Dr. Tsai was in the best position to determine the course of treatment as conceded by
his own expert Dr. Dagly (T. p. 285).
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10. Further, Dr. Tsai testified that he completely relied upon the misplaced and
unsubstantiated claim that the emergency room physician at Bon Secours had performed the type
"washout"
of that Dr. Tsai said was so critical to perform. In fact, Dr. Tsai specifically testified
faith"
that he "took it on that Dr. Pius at Bon Secours performed the critical washout (T. p. 44.).
"washout"
11. Defendant's expert, Dr. Dagly agreed that a needed to be done as soon
as possible (T. p. 246, 252-253).
12. There was no testimony to establish that the Bon Secours ER physician performed
an adequate washout. To the contrary, the records from Bon Secours reflected initially that the
ER physician also recognized the need for a thorough and prompt washout of the plaintiff's
wound and, secondly, indicated that Mr. Bertram was being sent to ORMC for that specific
"B"
purpose (Exhibit hereto is Plaintiff's trial Exh. 1 - Bon Secours Hospital chart).
13. The note entered by the ER physician at Bon Secours stated that Mr. Bertram
fracture"
"needs hand surgery for washout in OR due to open (Exhibit B, p. 16). Mr. Bertram
was then taken by ambulance to ORMC. He was not told to go home and see Dr. Tsai at his
office the next day. He was not told that the treatment could wait. The washout treatment was, as
important"
Dr. Tsai testified, "very (T. p. 28) and needed to be done as soon as possible (T. p.
23).
14. The Bon Secours chart also indicates, as was testified to, that Mr. Bertram's hand
wounds"
was "covered in mud with foreign objects (grass) in (Exh. B p. 18).
15. The jury could not have reached the verdict it did based on the evidence submitted
on this issue. It would have been purely speculative for them to have concluded that any washout
prior to the 7:30pm surgery on June 4, 2018, was done in accordance with good and accepted
medical standards.
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16. The Court inquired of Dr. Tsai and confirmed his understanding of the
significance of performing a washout as soon as possible. On page 28 of the trial transcript, the
following exchange took place, "So in your opinion, does it matter the timing of the washout and
-."
the antibiotic or no? THE WITNESS: Yes, it's very important. The sooner
17. In perhaps the most telling testimony, Dr. Tsai acknowledged that "if the wound
was not washed out sufficiently at the time of the emergency room at Bon Secours, then
sooner"
(he) you would want to intervene (Emphasis added.) (T. p. 45).
18. Dr. Winski, who while referred to as plaintiff's expert witness was not your
typical retained expert witness. Dr. Winski was known to Mr. Betram and his family for many
years. There was nothing about this relationship that impacted the simple fact that when Mr.
Bertram presented to Dr. Winski on June 26, 2018, a portion of his left hand had necrosed and
fallen off, exposing the tendon in his left index finger.
19. Dr. Winski testified that, with a reasonable degree of medical certainty, a washout
expeditiously"
of the wound in the OR "should have been done (T p. 585). A washout in the OR
was not performed until approximately 7:30pm on June 4, 2018. There was no evidence offered
to the contrary.
20. Dr. Winski was the subsequent treating physician following Dr. Tsai's negligent
care. Dr. Winski performed surgery on June 27, 2028, which was necessary because the skin
over the wound where Dr. Tsai operated necrosed and fell off. There was no dispute that
following the last visit to Dr. Tsai on June 26, 2018, Mr, Bertram needed surgery. All the
testifying physicians agreed.
21. In one of the more ironic exchanges during the trial, Dr. Dagly was testifying and
indicated that Dr. Tasi, as Mr. Bertram's treating physician was in the best position to make
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treatment decisions but failed at that moment to recognize that Dr. Winski became Mr. Bertram's
treating physician just after the wound necrosed and the portion of the finger fell off. This of
course put Dr. Winski in the best position to evaluate Mr. Bertram's condition and determine the
best course of treatment under the circumstances then and there existing, even though Dr. Dagly
said he could not answer that question (T. p, 285-286).
22. Dr. Winski evaluated Mr. Bertram at that time and concluded that the reason for
the tissue necrosis was the failure to timely washout the wound of the left index finger and the
failure to timely reduce the fracture fragments which placed pressure on the soft tissue,
ultimately causing the tissue to die.
23. Dr. Winski testified that the necessary treatment following the initial injury on
June 3, 2018, was as follows:
"That was started at the outside hospital; number two, you need to go and do a surgical
washout. You don't just go in the emergency room and soak the hand in some
Betadine. You need to go into the operating room, have the area anesthetized, open
up the tissue levels, clean out those different tissue levels; number three, you need to
make some attempt for reducing the bony alignment. You don't need to do the
definitive fixation at that point, but you want to reduce the bony alignment to take undue
displaced"
pressure off the underlying skin if the fractures are (Emphasis added.) (T p.
578).
24. The Court clarified one of the questions to Dr. Tsai and elicited the exact answer
which, in part, this motion rests upon. Dr. Tsai was asked as follows: "If the washout was not
performed thoroughly in the ER, would this specific injury that was sustained be a
ne?" "Yes."
potential risk; yes or Dr. Tsai answered (T. p. 90) (Emphasis added).
25. The evidence in this case clearly shows that the treatment that Mr. Bertram
received at the ER at Bon Secours was not the type of treatment that Dr. Tsai was referring to in
his testimony. It was clearly noted in the records admitted and testified by Drs. Tsai, Dagly and
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Winski that Mr. Bertram was being transferred to ORMC under the care of Dr. Tsai to have a
washout performed in the operating room on June 4, 2018.
26. Further, there was no dispute on the medical testimony that a washout needed to
later"
be performed "sooner rather than (Tsai T. pp. 23, 28, 45; Dagly T. pp. 246, 252-253,
Winski T. pp. 500, 585, 715).
27. Further, Dr. Dagly did not disagree with Dr. Winski's opinions related to the need
for a washout or the need to reduce the fracture fragments. His only disagreement was, as he said
entirely conclusory and without basis, that Dr. Tsai did not deviate from accepted practice and
that the washout, while better to be done sooner than later, could be done within as long as 24
when,"
hours (T. p. 225). When pressed as to "24 hours from Dr. Dagly could not answer that
question (T. p. 225-228).
28. Dr. Dagly's answer is laughable when viewed against the testimony of Dr. Tsai
and Dr. Winski. Specifically, Dr. Dagly said, "In this case because he had an open wound, you
want to try to get to it sooner rather than later, but, you know, 24 hours is a very reasonable
it"
time frame to get to (Emphasis added) (Dagly T. p, 225).
29. Dr. Dagly, testified that the injury sustained by Mr. Bertram was a traumatic
injury and did in fact require a washout in the operating room as indicated by Dr. Pius at Bon
minute"
Secours ER, but just "not at that exact (T p. 269).
30. In fact, the washout in the operating room was not done until approximately
7:30pm, more than 19 hours after Dr. Pius sent Mr. Bertram by ambulance to Orange Regional
Medical Center (ORMC) under Dr. Tsai's care. It was unreasonable for any finder of fact to
determine that such a delay in performing the necessary washout was not a deviation from the
standard of care.
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31. It is submitted to the Court that these opinions are not supported by the facts
testified to and contained in the records submitted into evidence which show that the so-
clearly
called washout was, as per the physician supposedly assigned that task, not the washout required
under the circumstances, hence the reason that Mr. Bertram was sent to ORMC for a "washout in
OR"
the (Exhibit B p. 16-17).
32. The testimony by PA Jennifer Yuengst did not advance any support for the jury's
washout"
verdict. She acknowledged that no "in depth was done at ORMC (T. p. 342) and she
did not know whether one had been done before Mr. Bertram arrived at ORMC. One would have
to believe that since Dr. Tsai did not see Mr. Bertram until about 7:30pm on June 4, 2018, and
ears"
that PA Yuengst was his "eyes and during the day, (T. p. 75, 124) that she would have been
aware whether an adequate washout, in accordance with the standard of care, had been
performed.
33. Further, PA Yuengst testified that she did not perform a washout of the type, Dr.
Tsai said was needed and if, as Dr. Dagly opined, the washout by Dr. Mustafa sufficed then why
did Dr. Tsai disagree with this and why wasn't Dr. Mustafa called to testify? The compilation of
these factors clearly indicates that the jury's determination that Dr. Tsai did not depart from
accepted practice by failing to perform an appropriate washout before 12:00pm on June 4, 2018,
was contrary to the weight of the evidence.
34. Dr. Tsai even went so far as to state that he did not ask PA Yuengst to
specifically examine the wound (T. p. 43). This shows the utter lack of care provided by Dr. Tsai
and his team to Mr. Bertram for almost 19 hours while at ORMC. The jury misapprehended the
facts and reached a verdict unsupported by the evidence.
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35. While credibility is generally left to the jury, Dr. Dagly's testimony is simply put,
not credible on its face, nor does it meet the legal standard required of an expert's opinion. As
reflected in his claimed basis for his opinion on the washout, Dr. Dagly said that Mr. Bertram's
"wound was cleansed once or twice before he got to the operating room and then it was done
room"
again in the operating (Dagly T. p. 230).
36. The evidence clearly shows that a sufficient washout as required by the standard
of care was not performed until Dr. Tsai saw Mr. Bertram in the operating room at about 7:30pm
on Jube 4, 2018.
DEFENDANT FAILED TO TIMELY PERFORM A
REDUCTION OF THE FRACTURED FRAGMENTS
37. On the second departure presented, the jury erroneously found that the defendant
did not depart from accepted medical practice in failing to timely perform a reduction of the
fractured fragments and thereby remove pressure from the soft tissues.
TRIAL TESTIMONY
38. There was absolutely no evidence submitted to contradict the opinion of Dr.
Winski that the failure to reduce the fracture fragments was a departure from good and accepted
medical practice.
39. Dr. Winski testified that "you need to make some attempt for reducing the bony
alignment. You don't need to do the definitive fixation at that point, but you want to reduce the
bony alignment to take undue pressure off the underlying skin if the fractures are displaced
(Winski T. p, 578).
40. Even Dr. Dagly testified that "it is important to remove the pressure on the soft
possible"
tissue in a crush injury such as this as soon as (Dagly T p.260).
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41. The clear rationale for this was stated by Dr. Dagly as well as Dr. Winski. Dr.
Dagly testified as follows: "Q. You want to make sure that if it's angulated that the pressure on
correct"
the soft tissue does not linger? A Thats (T p. 261).
42. Dr. Winski explained in great detail that reducing the fracture fragments was
necessary and that the failure to do so was a departure from accepted practice.
43. Dr. Winski stated that the reason that Dr. Tsai's failure to timely see and treat this
patient was a departure from the appropriate accepted standard of care was Mr. Bertram
presented with a contaminated injury from a boulder crushing his hand and required three basic
courses of treatment. First, as per Dr. Winski, antibiotics need to be started early. Second, a
surgical washout must be done promptly (See supra). And third, one must reduce the bony
alignment to take pressure off the soft tissues to prevent the tissue from becoming necrotic (T. p.
578).
44. There is no dispute that the third important part of the treatment was not done
until after 7:30pm on June 4, 2018. That was, as per Dr. Winski, a departure from the standard of
care.
45. Dr. Winski was the only witness to testify about reducing the bone fragments to
remove the pressure form the tissue "The bone fragments were out of alignment putting pressure
on that skin that really needed to be addressed and at least reduced at some point if not
fashion"
definitively fixed in a timely (T. p. 595).
46. Dr. Winski showed the jury the x-ray and discussed the position of the fracture
fragments. He noted that "when you have a fracture that's significantly moved, it puts additional
pressure on the outside skin where the fracture has been pushed over to.... Everything beyond
it"
that is being moved and has extra pressure on (T. p. 599).
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47. Dr. Tsai, although could not be bothered to examine Mr. Bertram prior to 7:30pm
on June 4, 2018, testified that his surgery that day did not address small fragments of bone in the
wound. His surgical use of a K-wire (referred to at trial as "pins") was to keep the large,
angulated fracture in place (T. p. 61).
48. In so testifying, Dr. Tsai further acknowledged that he did not perform the
necessary reduction of the fracture fragments and as such departed from the standard of care.
49. The delay in treating Mr. Bertram was extreme and on its face a departure. From
the moment Mr. Bertram arrived at ORMC at about 11:30pm on June 3, 2018, until 7:30pm the
attending hand surgeon never examined him. The sole reason Mr. Bertram was transferred to
ORMC
Preview
FILED: SUFFOLK COUNTY CLERK 12/14/2023 05:31 PM INDEX NO. 602919/2019 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 12/15/2023 SUPREME COURT OF THE STATE OF NEW YORK Index No. 602919/19 COUNTY OF SUFFOLK -------------------------------------------------------------------X AFFIRMATION IN PAUL BERTRAM, SUPPORT Honorable Justice Plaintiff(s), Carmen Victoria St. George -against- TSAI-LUNG TSAI and ORANGE REGIONAL MEDICAL CENTER Defendant(s). -------------------------------------------------------------------X Robert Godosky, Esq., an attorney duly admitted to practice law before the Courts of the State of New York, hereby affirms the following to be true under the penalties of perjury: 1. I am a member of the law firm Godosky & Gentile, P.C., attorneys for plaintiff in the above captioned action. I respectfully submit this Affirmation in support of the within Motion. As trial counsel, I am familiar with the facts and circumstances of this case. 2. This affirmation is submitted in support of plaintiff's motion to set aside the jury’s verdict which was returned in favor of the defendant on November 1, 2023, and directing that judgment be entered in favor of plaintiffs or in the alternative, granting a new trial pursuant to CPLR §4404(a) based on the ground that the jury verdict was contrary to the weight of the credible evidence and in error as a matter of law. 3. This case arises out of a series of acts and omissions by defendant, Dr. Tsai-Lung Tsai from June 3, 2018, through June 4, 2018, resulting in plaintiff, Paul Bertram sustaining serious personal injuries to his left hand. 4. As the Court is aware, the trial of this matter commenced on October 26, 2023, and continued daily until the jury returned a verdict on November 1, 2023 (The trial transcript is attached hereto as Exhibit “A” and referred to herein as T and page number which refers to the PDF copy pages attached as Exhibit “A”). 1 of 14 FILED: SUFFOLK COUNTY CLERK 12/14/2023 05:31 PM INDEX NO. 602919/2019 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 12/15/2023 5. Two liability questions were submitted to the jury. Specifically, the jury was asked whether Dr. Tsai departed from accepted medical practice in failing to timely perform a "washout" of the contaminated wound prior to noon on June 4, 2018, and whether Dr. Tsai departed from accepted medical practice in failing to timely reduce the fracture fragments prior to noon on June 4, 2018. The jury returned a unanimous verdict in favor of the defendants on both departures and did not reach the causation questions. 6. The evidence so preponderates in favor of the plaintiff that no rational jury could have reasonably concluded that the defendant was not negligent. The evidence overwhelmingly indicated that the defendant was negligent in the care and treatment provided to the plaintiff. There were two separate bases of liability against the defendant upon which there can be no legitimate dispute. DEFENDANT FAILED TO TIMELY PERFORM A WASHOUT OF PLAINTIFF'S WOUND 7. On the first departure presented, the jury erroneously found that the defendant did not depart from accepted medical practice in failing to timely perform a washout of the contaminated wound. TRIAL TESTIMONY 8. The most compelling testimony on this issue came from the defendant himself, "washout" important" who without any reservation stated that the was "very to be done as soon as possible (T. p 23). There is no dispute that this was not done, and the jury could not have reasonably reached the verdict they did on this departure. 9. Dr. Tsai testified very clearly that the washout was important to be done as soon as possible. Dr. Tsai was in the best position to determine the course of treatment as conceded by his own expert Dr. Dagly (T. p. 285). 2 of 14 FILED: SUFFOLK COUNTY CLERK 12/14/2023 05:31 PM INDEX NO. 602919/2019 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 12/15/2023 10. Further, Dr. Tsai testified that he completely relied upon the misplaced and unsubstantiated claim that the emergency room physician at Bon Secours had performed the type "washout" of that Dr. Tsai said was so critical to perform. In fact, Dr. Tsai specifically testified faith" that he "took it on that Dr. Pius at Bon Secours performed the critical washout (T. p. 44.). "washout" 11. Defendant's expert, Dr. Dagly agreed that a needed to be done as soon as possible (T. p. 246, 252-253). 12. There was no testimony to establish that the Bon Secours ER physician performed an adequate washout. To the contrary, the records from Bon Secours reflected initially that the ER physician also recognized the need for a thorough and prompt washout of the plaintiff's wound and, secondly, indicated that Mr. Bertram was being sent to ORMC for that specific "B" purpose (Exhibit hereto is Plaintiff's trial Exh. 1 - Bon Secours Hospital chart). 13. The note entered by the ER physician at Bon Secours stated that Mr. Bertram fracture" "needs hand surgery for washout in OR due to open (Exhibit B, p. 16). Mr. Bertram was then taken by ambulance to ORMC. He was not told to go home and see Dr. Tsai at his office the next day. He was not told that the treatment could wait. The washout treatment was, as important" Dr. Tsai testified, "very (T. p. 28) and needed to be done as soon as possible (T. p. 23). 14. The Bon Secours chart also indicates, as was testified to, that Mr. Bertram's hand wounds" was "covered in mud with foreign objects (grass) in (Exh. B p. 18). 15. The jury could not have reached the verdict it did based on the evidence submitted on this issue. It would have been purely speculative for them to have concluded that any washout prior to the 7:30pm surgery on June 4, 2018, was done in accordance with good and accepted medical standards. 3 of 14 FILED: SUFFOLK COUNTY CLERK 12/14/2023 05:31 PM INDEX NO. 602919/2019 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 12/15/2023 16. The Court inquired of Dr. Tsai and confirmed his understanding of the significance of performing a washout as soon as possible. On page 28 of the trial transcript, the following exchange took place, "So in your opinion, does it matter the timing of the washout and -." the antibiotic or no? THE WITNESS: Yes, it's very important. The sooner 17. In perhaps the most telling testimony, Dr. Tsai acknowledged that "if the wound was not washed out sufficiently at the time of the emergency room at Bon Secours, then sooner" (he) you would want to intervene (Emphasis added.) (T. p. 45). 18. Dr. Winski, who while referred to as plaintiff's expert witness was not your typical retained expert witness. Dr. Winski was known to Mr. Betram and his family for many years. There was nothing about this relationship that impacted the simple fact that when Mr. Bertram presented to Dr. Winski on June 26, 2018, a portion of his left hand had necrosed and fallen off, exposing the tendon in his left index finger. 19. Dr. Winski testified that, with a reasonable degree of medical certainty, a washout expeditiously" of the wound in the OR "should have been done (T p. 585). A washout in the OR was not performed until approximately 7:30pm on June 4, 2018. There was no evidence offered to the contrary. 20. Dr. Winski was the subsequent treating physician following Dr. Tsai's negligent care. Dr. Winski performed surgery on June 27, 2028, which was necessary because the skin over the wound where Dr. Tsai operated necrosed and fell off. There was no dispute that following the last visit to Dr. Tsai on June 26, 2018, Mr, Bertram needed surgery. All the testifying physicians agreed. 21. In one of the more ironic exchanges during the trial, Dr. Dagly was testifying and indicated that Dr. Tasi, as Mr. Bertram's treating physician was in the best position to make 4 of 14 FILED: SUFFOLK COUNTY CLERK 12/14/2023 05:31 PM INDEX NO. 602919/2019 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 12/15/2023 treatment decisions but failed at that moment to recognize that Dr. Winski became Mr. Bertram's treating physician just after the wound necrosed and the portion of the finger fell off. This of course put Dr. Winski in the best position to evaluate Mr. Bertram's condition and determine the best course of treatment under the circumstances then and there existing, even though Dr. Dagly said he could not answer that question (T. p, 285-286). 22. Dr. Winski evaluated Mr. Bertram at that time and concluded that the reason for the tissue necrosis was the failure to timely washout the wound of the left index finger and the failure to timely reduce the fracture fragments which placed pressure on the soft tissue, ultimately causing the tissue to die. 23. Dr. Winski testified that the necessary treatment following the initial injury on June 3, 2018, was as follows: "That was started at the outside hospital; number two, you need to go and do a surgical washout. You don't just go in the emergency room and soak the hand in some Betadine. You need to go into the operating room, have the area anesthetized, open up the tissue levels, clean out those different tissue levels; number three, you need to make some attempt for reducing the bony alignment. You don't need to do the definitive fixation at that point, but you want to reduce the bony alignment to take undue displaced" pressure off the underlying skin if the fractures are (Emphasis added.) (T p. 578). 24. The Court clarified one of the questions to Dr. Tsai and elicited the exact answer which, in part, this motion rests upon. Dr. Tsai was asked as follows: "If the washout was not performed thoroughly in the ER, would this specific injury that was sustained be a ne?" "Yes." potential risk; yes or Dr. Tsai answered (T. p. 90) (Emphasis added). 25. The evidence in this case clearly shows that the treatment that Mr. Bertram received at the ER at Bon Secours was not the type of treatment that Dr. Tsai was referring to in his testimony. It was clearly noted in the records admitted and testified by Drs. Tsai, Dagly and 5 of 14 FILED: SUFFOLK COUNTY CLERK 12/14/2023 05:31 PM INDEX NO. 602919/2019 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 12/15/2023 Winski that Mr. Bertram was being transferred to ORMC under the care of Dr. Tsai to have a washout performed in the operating room on June 4, 2018. 26. Further, there was no dispute on the medical testimony that a washout needed to later" be performed "sooner rather than (Tsai T. pp. 23, 28, 45; Dagly T. pp. 246, 252-253, Winski T. pp. 500, 585, 715). 27. Further, Dr. Dagly did not disagree with Dr. Winski's opinions related to the need for a washout or the need to reduce the fracture fragments. His only disagreement was, as he said entirely conclusory and without basis, that Dr. Tsai did not deviate from accepted practice and that the washout, while better to be done sooner than later, could be done within as long as 24 when," hours (T. p. 225). When pressed as to "24 hours from Dr. Dagly could not answer that question (T. p. 225-228). 28. Dr. Dagly's answer is laughable when viewed against the testimony of Dr. Tsai and Dr. Winski. Specifically, Dr. Dagly said, "In this case because he had an open wound, you want to try to get to it sooner rather than later, but, you know, 24 hours is a very reasonable it" time frame to get to (Emphasis added) (Dagly T. p, 225). 29. Dr. Dagly, testified that the injury sustained by Mr. Bertram was a traumatic injury and did in fact require a washout in the operating room as indicated by Dr. Pius at Bon minute" Secours ER, but just "not at that exact (T p. 269). 30. In fact, the washout in the operating room was not done until approximately 7:30pm, more than 19 hours after Dr. Pius sent Mr. Bertram by ambulance to Orange Regional Medical Center (ORMC) under Dr. Tsai's care. It was unreasonable for any finder of fact to determine that such a delay in performing the necessary washout was not a deviation from the standard of care. 6 of 14 FILED: SUFFOLK COUNTY CLERK 12/14/2023 05:31 PM INDEX NO. 602919/2019 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 12/15/2023 31. It is submitted to the Court that these opinions are not supported by the facts testified to and contained in the records submitted into evidence which show that the so- clearly called washout was, as per the physician supposedly assigned that task, not the washout required under the circumstances, hence the reason that Mr. Bertram was sent to ORMC for a "washout in OR" the (Exhibit B p. 16-17). 32. The testimony by PA Jennifer Yuengst did not advance any support for the jury's washout" verdict. She acknowledged that no "in depth was done at ORMC (T. p. 342) and she did not know whether one had been done before Mr. Bertram arrived at ORMC. One would have to believe that since Dr. Tsai did not see Mr. Bertram until about 7:30pm on June 4, 2018, and ears" that PA Yuengst was his "eyes and during the day, (T. p. 75, 124) that she would have been aware whether an adequate washout, in accordance with the standard of care, had been performed. 33. Further, PA Yuengst testified that she did not perform a washout of the type, Dr. Tsai said was needed and if, as Dr. Dagly opined, the washout by Dr. Mustafa sufficed then why did Dr. Tsai disagree with this and why wasn't Dr. Mustafa called to testify? The compilation of these factors clearly indicates that the jury's determination that Dr. Tsai did not depart from accepted practice by failing to perform an appropriate washout before 12:00pm on June 4, 2018, was contrary to the weight of the evidence. 34. Dr. Tsai even went so far as to state that he did not ask PA Yuengst to specifically examine the wound (T. p. 43). This shows the utter lack of care provided by Dr. Tsai and his team to Mr. Bertram for almost 19 hours while at ORMC. The jury misapprehended the facts and reached a verdict unsupported by the evidence. 7 of 14 FILED: SUFFOLK COUNTY CLERK 12/14/2023 05:31 PM INDEX NO. 602919/2019 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 12/15/2023 35. While credibility is generally left to the jury, Dr. Dagly's testimony is simply put, not credible on its face, nor does it meet the legal standard required of an expert's opinion. As reflected in his claimed basis for his opinion on the washout, Dr. Dagly said that Mr. Bertram's "wound was cleansed once or twice before he got to the operating room and then it was done room" again in the operating (Dagly T. p. 230). 36. The evidence clearly shows that a sufficient washout as required by the standard of care was not performed until Dr. Tsai saw Mr. Bertram in the operating room at about 7:30pm on Jube 4, 2018. DEFENDANT FAILED TO TIMELY PERFORM A REDUCTION OF THE FRACTURED FRAGMENTS 37. On the second departure presented, the jury erroneously found that the defendant did not depart from accepted medical practice in failing to timely perform a reduction of the fractured fragments and thereby remove pressure from the soft tissues. TRIAL TESTIMONY 38. There was absolutely no evidence submitted to contradict the opinion of Dr. Winski that the failure to reduce the fracture fragments was a departure from good and accepted medical practice. 39. Dr. Winski testified that "you need to make some attempt for reducing the bony alignment. You don't need to do the definitive fixation at that point, but you want to reduce the bony alignment to take undue pressure off the underlying skin if the fractures are displaced (Winski T. p, 578). 40. Even Dr. Dagly testified that "it is important to remove the pressure on the soft possible" tissue in a crush injury such as this as soon as (Dagly T p.260). 8 of 14 FILED: SUFFOLK COUNTY CLERK 12/14/2023 05:31 PM INDEX NO. 602919/2019 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 12/15/2023 41. The clear rationale for this was stated by Dr. Dagly as well as Dr. Winski. Dr. Dagly testified as follows: "Q. You want to make sure that if it's angulated that the pressure on correct" the soft tissue does not linger? A Thats (T p. 261). 42. Dr. Winski explained in great detail that reducing the fracture fragments was necessary and that the failure to do so was a departure from accepted practice. 43. Dr. Winski stated that the reason that Dr. Tsai's failure to timely see and treat this patient was a departure from the appropriate accepted standard of care was Mr. Bertram presented with a contaminated injury from a boulder crushing his hand and required three basic courses of treatment. First, as per Dr. Winski, antibiotics need to be started early. Second, a surgical washout must be done promptly (See supra). And third, one must reduce the bony alignment to take pressure off the soft tissues to prevent the tissue from becoming necrotic (T. p. 578). 44. There is no dispute that the third important part of the treatment was not done until after 7:30pm on June 4, 2018. That was, as per Dr. Winski, a departure from the standard of care. 45. Dr. Winski was the only witness to testify about reducing the bone fragments to remove the pressure form the tissue "The bone fragments were out of alignment putting pressure on that skin that really needed to be addressed and at least reduced at some point if not fashion" definitively fixed in a timely (T. p. 595). 46. Dr. Winski showed the jury the x-ray and discussed the position of the fracture fragments. He noted that "when you have a fracture that's significantly moved, it puts additional pressure on the outside skin where the fracture has been pushed over to.... Everything beyond it" that is being moved and has extra pressure on (T. p. 599). 9 of 14 FILED: SUFFOLK COUNTY CLERK 12/14/2023 05:31 PM INDEX NO. 602919/2019 NYSCEF DOC. NO. 50 RECEIVED NYSCEF: 12/15/2023 47. Dr. Tsai, although could not be bothered to examine Mr. Bertram prior to 7:30pm on June 4, 2018, testified that his surgery that day did not address small fragments of bone in the wound. His surgical use of a K-wire (referred to at trial as "pins") was to keep the large, angulated fracture in place (T. p. 61). 48. In so testifying, Dr. Tsai further acknowledged that he did not perform the necessary reduction of the fracture fragments and as such departed from the standard of care. 49. The delay in treating Mr. Bertram was extreme and on its face a departure. From the moment Mr. Bertram arrived at ORMC at about 11:30pm on June 3, 2018, until 7:30pm the attending hand surgeon never examined him. The sole reason Mr. Bertram was transferred to ORMC