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Steven R. Graboff MD Verdict against AAOS Affirmed by Court of Appeals for the Third Circuit

Precedential Ruling by Appeals Court vindicates Dr. Graboff in case against the American Academy of Orthopaedic Surgeons and the American Association of Orthopaedic Surgeons (AAOS)

Legal ruling sends stern message against intimidation and silencing of expert witnesses

Philadelphia, Pennsylvania (MMD Newswire) March 4, 2014 – Once again, board-certified orthopaedic surgeon and expert witness Steven R. Graboff, MD has prevailed in court against the professional medical organizations he had previously sued for defamation and false light invasion of privacy. On February 20, 2014 the United States Court of Appeals for the Third Circuit handed down a decision in favor of Dr. Graboff and against the American Academy of Orthopaedic Surgeons and the American Association of Orthopaedic Surgeons, collectively known as the AAOS (Appellants). The decision can be viewed here: http://www2.ca3.uscourts.gov/opinarch/132229p.pdf

Although in a previous action the AAOS had been found guilty only of the false light charges, and that finding was subsequently upheld in a District Court, the Appeals Court ruled that the AAOS should have also been found guilty of defamation.

The ruling was a true vindication for Dr. Graboff, who, in addition to his orthopaedic practice, has also worked for more than 20 years as a highly regarded expert witness in hundreds of medical malpractice, wrongful death, personal injury, civil and federal cases.

Dr. Graboff says that this case brings to the forefront the "clout" and oppression that organizations like the AAOS have on its membership in regards to expert witness testimony.

Dr. Graboff's legal saga began a few years ago when he was retained by a Philadelphia medical malpractice law firm. Based only upon initial information the firm had given him, he prepared a draft of a report, clearly labeling it as a draft. The law firm, however, whited-out the word "DRAFT" and submitted the documents to the defendants as final. Dr. Graboff's preliminary opinion was that the doctor being sued had violated the standard of care in treating the plaintiff, and as a result, that doctor filed a grievance with the AAOS, stating that Dr. Graboff had violated the AAOS Standards of Professionalism regarding Expert Witness Testimony. Dr. Graboff was suspended from the AAOS in June 2009, and the Association publicly listed his suspension on their web site and online newsletter, "AAOS NOW."

The AAOS article was worded in such a way that the exposure resulted in widespread questioning of Dr. Graboff's reputation, as well as a substantial loss of income.

Dr. Graboff filed a defamation claim against the AAOS as well as a suit against the law firm that had wrongfully turned over his draft report to the defendants (United States District Court for the Eastern District of Pennsylvania Civil Action No. 10-1710). In April 2012 a jury found in favor of Dr. Graboff and awarded damages. The verdict in Dr. Graboff's favor was noteworthy because his attorney, Clifford E. Haines of the Philadelphia firm Haines & Associates, argued that the expert witness program developed by the AAOS was intended to silence doctors who testify against other doctors" See: http://www.mmdnewswire.com/dr-steven-graboff-md-wins-lawsuit-aaos-and-colleran-firm-108119.html

Subsequently the AAOS filed a post trial motion to set aside the verdict. On March 28, 2013, however, the Honorable Judge Joel H. Slomsky of the United States District Court for the Eastern District of Pennsylvania denied the AAOS' motion, upholding the verdict. Judge Slomsky's District Court ruling can be viewed here: http://ia801607.us.archive.org/4/items/gov.uscourts.paed.354973/gov.uscourts.paed.354973.169.0.pdf

In his ruling, Judge Slomsky wrote that the AAOS is well aware of its clout and uses it to intimidate members, particularly in regard to expert witnesses. He agreed that the AAOS had portrayed Dr. Graboff in a false light, thus jeopardizing his source of income as both a physician and an expert witness. Judge Slomsky wrote, "...the evidence was sufficient to prove the false light claim, and there is no basis to set aside the jury's verdict." See: http://www.mmdnewswire.com/steven-r-graboff-md-129763.html

The AAOS appealed the District Court decision in December of 2013. The Appeals Court, however, denied the AAOS' motions and affirmed the District Court's March 2013 order in favor of Dr. Graboff. That same Appeals Court also ruled that the United States District Court for the Eastern District of Pennsylvania should have found the AAOS guilty of defamation in addition to the false light invasion of privacy on which they were previously found guilty and charged with damages.

As noted by the Third Circuit Court's opinion, the AAOS publication selectively recounted the circumstances of the grievance proceedings to imply he had testified falsely. It did not mention Dr. Graboff's exculpatory testimony from the grievance proceedings that he considered the report to have been preliminary, that it had been altered, and that it had been used improperly to settle the case. Moreover it omitted the fact that his report had been a draft, made it seem that he had access to the X-rays prior to drafting the report, and implied that he intentionally had falsified information rather than explaining that the report had been a preliminary draft based on limited information.

Dr. Graboff has no plans to seek reinstatement into the AAOS. The Appeal Court ruling noted, "Though most orthopaedic surgeons are members of the AAOS, it is not a licensing authority and consequently an orthopaedic surgeon need not be an AAOS member to practice orthopaedic surgery."

Dr. Graboff believes the Appeals Court ruling has vindicated him and has validated what he has been saying all along. "Very simply, there is no place in our justice system for witness intimidation practices such as those used by the AAOS to control its member physicians," he says. "It is in effect a form of 'back door tort reform' to diminish the pool of physicians willing to testify for an injured party, out of fear that their reputation will be ruined by the medical society, since without the medical expert there can be no medical malpractice lawsuits.

"The court rulings prove that the American Academy of Orthopaedic Surgeons and the American Association of Orthopaedic Surgeons (AAOS) acted with knowledge or with reckless disregard of the fact that the article they published on the Internet created a false impression of me. And as noted in the latest ruling, that article was also defamatory based on the opinion of the United States Court of Appeals for the Third Circuit."

The message he hopes to convey, says Dr. Graboff, goes beyond the obvious one that his good name, reputation, and credibility as a physician, orthopaedic surgeon and orthopaedic expert witness have been restored and vindicated by the United States District Court for the Eastern District of Pennsylvania and the United States Court of Appeals for the Third Circuit. "There's a larger message here as well," he says, "and it is that medical experts need to remove their 'White Coat of Silence' and step up to provide honest opinions about their colleagues. They need to know they can do this without the fear of retribution from medical societies. Only in this way can legitimate medical legal claims go forward and the public at large be represented and protected. There are many cases where justice hinges on the testimony of an expert witness, and it is my hope that this latest ruling will help ensure that justice is served in future cases."

About Steven R. Graboff M.D.

For over 20 years, Dr. Steven R Graboff has worked with attorneys reviewing radiologic studies and records, answering their questions, writing opinions, and advising attorneys regarding the medical legal aspects of their cases for both the plaintiff and defense. He has qualified and testified nationally over 500 times as an expert witness in medical malpractice, wrongful death, personal injury, civil, and federal cases.

Steven R. Graboff, M.D. is a board certified Orthopaedic Surgeon, a member of the American College of Forensic Examiners, and a Certified Forensic Physician. He is a diplomat of the National Board of Medical Examiners, American Board of Orthopaedic Surgery, American Board of Forensic Medicine, American Board of Forensic Examiners, and is appointed by the State of California as a Qualified Medical Examiner.

Dr. Graboff received his medical degree from the University of California, Irvine in 1980. He did a general surgery internship at the University of California Irvine Medical Center and affiliated hospitals from 1980 through 1981, and he completed his Orthopaedic Surgery training in 1985 from Harbor-UCLA Medical Center and affiliated hospitals, Los Angeles, California.

As a guest lecturer, Dr. Graboff has taught musculoskeletal physical examination at the University of California, Irvine, School of Medicine. He also teaches Orthopaedics, differential diagnosis, and musculoskeletal radiology at California State University, Long Beach.

Dr. Graboff is a medical specialist and advisor for the Huntington Beach Fire Department Office of Emergency Management & Homeland Security, a member of the Orange County Medical Reserve Corps, and he volunteers his services in community education through the Huntington Beach Fire Department.

Dr. Graboff is a member of the American Medical Association, the California Medical Association, the Orange County Medical Association, the California Orthopaedic Association, the California Faculty Association, the California Teachers Association, and the Association of University Professors.

Link to Full Press Release: http://www.mmdnewswire.com/steven-r-graboff-md-aaos-130472.html

 

Steven R. Graboff, MD Prevails in Post Trial Motions: AAOS Defeated and Verdict Against AAOS Upheld

Philadelphia, Pennsylvania (MMD Newswire) April 16, 2013 - It has been a long road to justice for Dr. Steven R. Graboff, a board certified orthopaedic surgeon who for the past 20 years has also been a highly regarded expert witness in hundreds of medical malpractice, wrongful death, personal injury, civil, and federal cases. In April of last year Dr. Graboff won a precedent setting defamation claim against the American Association of Orthopaedic Surgeons and the American Academy of Orthopaedic surgeons, collectively known as the AAOS, and a law firm whose actions resulted in Dr. Graboff's wrongful suspension from the AAOS. After a jury awarded Dr. Graboff $392,000, the AAOS filed a post trial motion to set aside the verdict. But on March 28, 2013, the Honorable Judge Joel H. Slomsky of the United States District Court for the Eastern District of Pennsylvania denied the AAOS' motion, upholding the verdict and, says Dr. Graboff, restoring the doctor's own reputation and credibility as an expert witness.

Dr. Graboff sees this latest ruling not only as professional and personal vindication but also as a stern and powerful message that expert witnesses cannot be intimidated and silenced. He says, "There is no place in our justice system for witness intimidation practices, such as that which is instituted and used by the AAOS to control its member physicians - and which in turn strengthens the 'White Coat of Silence.'"

The "White Coat of Silence" refers to the reluctance by all too many physicians to testify against other physicians in medical malpractice cases, or even to report unethical, incompetent, or dangerous colleagues. As Dr. Graboff has learned the hard way, it's not easy being a medical doctor who is willing to testify on behalf of medical malpractice plaintiffs. Doctors who speak out for malpractice victims may face repercussions not only from their fellow physicians but also from their respective medical societies.

Dr. Graboff's saga began a few years ago when he was retained by a Philadelphia medical malpractice law firm to provide expert witness testimony for one of their clients. He prepared a draft of a report, based only upon initial information the firm had given him, and clearly labeled the report as such. However, the law firm whited-out the word "DRAFT" and submitted the documents to the defendants as final. Dr. Graboff's preliminary opinion suggested that the doctor being sued had violated the standard of care in treating the plaintiff; as a result, that doctor filed a grievance with the AAOS, stating that Dr. Graboff had violated the Association's Standards of Professionalism regarding expert witnesses. Dr. Graboff was suspended from the AAOS in June 2009 for 2 years, and the Association publicly listed his suspension on their web site and online newsletter, AAOS NOW. Due to the way the listings were worded, the exposure resulted in significant questioning of Dr. Graboff's reputation, as well as a significant loss of income.

He filed a defamation claim against the AAOS and also filed suit against the law firm that had wrongfully turned over his draft report to the defendants (United States District Court for the Eastern District of Pennsylvania Civil Action No. 10-1710). The 2012 verdict in Dr. Graboff's favor was significant because his attorney, Clifford E. Haines of the Philadelphia firm Haines & Associates, argued that the expert witness program developed by the AAOS was intended to silence doctors who testify against other doctors. This, Mr. Haines explained, was the AAOS' way of handling the medical malpractice insurance crisis.

The jury apparently agreed with Mr. Haines' argument.

Said Mr. Haines after the verdict was delivered, "This case was really about standing up for the rights of medical expert witnesses and the patients for whom they testify. I believe that medical associations like The American Academy of Orthopaedic Surgeons (the AAOS) are going after doctors who help prosecute a patient's claim of medical malpractice. The principle we're fighting against -- the silencing of doctors - is why we took on this case." http://www.mmdnewswire.com/dr-steven-graboff-md-wins-lawsuit-aaos-and-colleran-firm-108119.html

Dr. Graboff says, "My legal team and I believe that my initial lawsuit against the AAOS, the jury verdict against the AAOS, and the Judge's ruling defeating the AAOS' attempt to overturn the verdict have been a precedent setting series of events. As far as I know, I am the first doctor to win a case like this against a large and prestigious medical society."

In his March 28, 2013 opinion upholding the verdict, the Honorable Judge Joel H. Slomsky wrote that it was evident that the AAOS has "intruded itself into the marketplace of orthopaedic surgeons who earn a living testifying as experts..."

Judge Slomsky added that the AAOS' Standards of Professionalism are all encompassing and written in such a broad manner that virtually anything an expert witness says or does is subject to AAOS review. He wrote, "The AAOS is well aware of its clout in the profession of orthopaedic surgeons and created its compliance program and standards to control the occupation of its members as experts. [The AAOS] is also aware that its enforcement program and standards would affect the income of doctors because the loss of AAOS accreditation has a substantial impact on the ability of an expert to work in that industry...the evidence shows that the intrusion of the AAOS into the marketplace of expert orthopaedic surgeons is substantial and jeopardized Dr. Graboff's source of income as an expert."

The Court's March 28 opinion and order to deny the post trial motion can be viewed in full here: http://ia801607.us.archive.org/4/items/gov.uscourts.paed.354973/gov.uscourts.paed.354973.169.0.pdf

An article by Mary Ann Pazanowski in the Bloomberg Bureau of National Affairs (BNA) "Health Law Reporter" (4 April 2013) concurs that Dr. Graboff's case is an unusual and significant one. The article explains how Dr. Graboff's case illuminates the sometimes-oppressive clout that organizations such as the AAOS have over their membership in regards to expert witness testimony. This scrutiny of expert witnesses by professional organizations short-circuits the judicial system. The Bloomberg BNA article on Dr. Graboff's case can be read here: https://docs.google.com/file/d/0B3nvxHb2xXaUZXlLSE1pTm9UeW8/edit?usp=sharing

For his part, Dr. Steven Graboff says he is relieved that his good name, reputation, and credibility as an orthopaedic expert witness have been restored. He notes, "What Judge Slomsky's ruling indicates is that the AAOS has been found guilty by the Court of knowingly publishing information on the Internet publicly that portrayed me in a false light, and that knowingly would have a substantial impact on my practice as an orthopaedic surgeon expert witness. The jury's original verdict and the Court's subsequent ruling vindicate me. And even more importantly, I believe that the verdict and ruling represent a victory for everyone for whom the pursuit of justice depends upon the testimony of an expert witness."

Link to Full Press Release: http://www.mmdnewswire.com/steven-r-graboff-md-129763.html

Dr. Steven Graboff M.D. Wins Lawsuit against the AAOS and Colleran Firm

Philadelphia, PA (MMD Newswire) May 10, 2012 -- Can Doctors Be Silenced? Philadelphia Jury Verdict Says No. Philadelphia-based lawyer Clifford E. Haines, president of the litigation firm, Haines & Associates, won an important victory in federal court on Friday, April 27th. The jury awarded $380,000 to Dr. Steven Graboff, a board certified orthopedic surgeon and well known expert witness, who brought a defamation claim against the American Association of Orthopedic Surgeons and the American Academy of Orthopedic Surgeons (together, the AAOS). The jury also returned a verdict against the Colleran law firm, which had hired Dr. Graboff, because it turned over Dr.Graboff's draft report to the defendants in the underlying case, after "whiting out" the word DRAFT from the report.

The verdict is significant because Mr. Haines argued that the expert witness program developed by the AAOS was intended to silence doctors who testify against other doctors as a way to deal with the medical malpractice insurance crisis, and the jury apparently agreed with that assessment.

Dr. Graboff was retained by the Colleran law firm to provide expert witness testimony for one of their clients. Graboff prepared a draft report, but the firm whited-out the draft title and submitted Graboff's report as final. After the law firm submitted his preliminary report as final, Graboff was suspended from the American Association of Orthopaedic Surgeons (AAOS), in June 2009. The Association then publicly listed Dr. Graboff's suspension on their website and their internet newsletter, AAOS NOW. The exposure resulted in significant questioning of Graboff's reputation and a loss of income.

"This case was really about standing up for the rights of medical expert witnesses and the patients for whom they testify. I believe that medical associations like The American Academy of Orthopedic Surgeons (the AAOS) are going after doctors who help prosecute a patient's claim of medical malpractice. The principle we're fighting against -- the silencing of doctors - is why we took on this case."

Haines has a long career in medical malpractice and legal malpractice litigation and is past president of the Pennsylvania Bar Association. "Medical organizations are trying to deal with medical malpractice not by making sure their surgeons are doing top-notch work, but by going after the guys acting as expert witnesses," says Haines.

In addition to awarding Dr. Graboff $380,000 the verdict gives him license to testify that he had won a lawsuit against the AAOS for falsely portraying him in their publication "AAOS Now" on the Internet.

Link to full press release: http://www.mmdnewswire.com/dr-steven-graboff-md-wins-lawsuit-aaos-and-colleran-firm-108119.html

Expert Witness Wins Judgments Against Firm, Professional Group

An orthopedic surgeon who was suspended by a professional organization after the law firm that hired him as an expert witness used what he claimed was an unfinished expert report during a settlement conference has won a $392,000 verdict against the firm and the organization, a lawyer for the doctor has said.

Zack Needles

2012-05-07 12:00:00 AM

An orthopedic surgeon who was suspended by a professional organization after the law firm that hired him as an expert witness used what he claimed was an unfinished expert report during a settlement conference has won a $392,000 verdict against the firm and the organization, a lawyer for the doctor has said.

On April27, following a 12-day trial and about four hours of deliberations, an eight-member jury unanimously handed down the verdict in favor of plaintiff Dr. Steven Graboff in the courtroom of U.S. District Judge Joel H. Slomsky of the Eastern District of Pennsylvania.

According to court papers in Graboff v. The Colleran Firm , Graboff was hired by attorney Francis T. Colleran of The Colleran Firm in Philadelphia to serve as an expert witness in a medical malpractice case captioned Jones v. Meller in which the plaintiff, a 66-year-old diabetic, blamed two doctors for failing to prevent infections that ultimately required an above-the-knee amputation.

In his draft report, Graboff faulted two doctors -Alan Hibberd and Menachem Meller-for failing to recognize that wires installed in Paul Jones' leg during a surgery were harboring a persistent infection and should have been removed, according to court papers.

But Graboff claimed that he cautioned Colleran that his report was preliminary and that he needed to see more of the medical documentation, including radiology reports, before rendering his final opinion, court papers said.

Graboff's suit, filed April 16, 2010, alleged Colleran ignored those warnings and, without notifying Graboff, "whited out" the words "draft report" in order to use the document in a settlement conference.

Colleran secured a settlement for Jones, according to court papers, but Graboff's suit alleged that Colleran's use of the draft report triggered new problems when Graboff received a letter from defendant American Academy of Orthopaedic Surgeons that said Meller had initiated proceedings against Graboff for violations of its "standards of professionalism."

In hearings before the AAOS, Graboff claimed he was thwarted in his attempts to present a complete defense in which he would have explained the report was merely a draft and had been misused and altered by Colleran, according to court papers.

But the AAOS refused to accept some of Graboff's evidence, the suit alleged, and ultimately suspended Graboff for two years and published news of the suspension in its newsletter, "AAOS Now."

Graboff's suit alleged breach of contract on the part of Colleran, his firm and the AAOS, as well as defamation on the part of the AAOS.

The AAOS argued in court papers that Graboff did not assert the defense that his expert report was only a draft until about six weeks before the AAOS Committee on Professionalism's hearing regarding Meller's grievance took place.

Colleran and his firm also alleged in court documents that Graboff made no mention of this defense in his initial written response to Meller's grievance with the AAOS.

"It was not until five months after receipt of Dr. Meller's grievance, and three months after the submission of Dr. Graboff's written response to the AAOS that Dr. Graboff contacted the AAOS by letter dated Sept. 18, 2008, and pointed out that the words 'draft report' had been removed from the first page of his Dec. 5, 2007 report," Colleran and his firm said in court papers. "That being said, even in his supplemental submission to the AAOS, he did not recant the condusions  in the December 2007 report criticizing Dr. Meller."

The AAOS said in court papers that the committee questioned both Meller and Graboff during its hearing and that Graboff gave conflicting testimony.

"Although Dr. Graboff told the committee that his report was only a 'draft,' and that attorney Colleran had removed the words 'Draft Report,' Dr. Graboff nonetheless initially stood by his opinion that Dr. Meller was negligent and had violated the standard of care," the AAOS said in court papers. "During questioning, however, Dr. Graboff contradicted himself and admitted that he had not previously reviewed the X-rays or CT-scan films, but now that he had seen them at the hearing, he no longer believed that Dr. Meller was negligent or violated the standard of care."

The AAOS also said in court papers that, following the hearing, the committee found that Graboff had committed a number of professional violations, including providing false expert testimony, failing to give fair and impartial expert testimony, failing to consider accepted standards when evaluating Meller's care and improperly condemning Meller's performance.

Graboff alleged in court papers that after the AAOS published news of his suspension on the Internet, his "credibility as an expert was destroyed."

According to court papers, Graboff lost existing contracts to serve as an expert witness, stopped receiving referrals from three insurers and was threatened with legal action by an attorney in another personal injury case who believed Graboff's suspension had caused him to lose the case.

Ultimately, the federal jury entered separate judgments of $196,000 each against the AAOS and The Colleran Firm, according to court records.

Graboff's attorney, Clifford Haines of Haines & Associates in Philadelphia, told The Legal on Tuesday that there were some "contentious moments" during the trial but he believed it was Graboff's nearly three-and-a-half days on the witness stand that ultimately swayed the jury.

Haines said he was pleased with the verdict because it will allow Graboff to continue his work as an expert witness.

"I'm delighted in the outcome because it gave Dr. Graboff the ticket he needs to be able to testify in a courtroom and there are no reasonable blemishes on his character or his ability as an expert witness," he said. "That taint has been lifted from him, which is the most significant thing he could have gotten from this lawsuit."

Counsel for Colleran and his firm, Daniel Sherry at Marshall, Dennehey, Warner, Coleman & Goggin in King of Prussia, Pa., declined to comment.

Counsel for the AAOS, Marc Wolin at Saiber LLC in Newark, N.J., could not be reached for comment at press time.

Link to full press release: http://www.law.com/jsp/pa/PubArticlePA.jsp?id=1202552084302 (subscription required)

Steven R. Graboff, M.D. Awarded Diplomate as Forensic Examiner

STEVEN R. GRABOFF, M.D. AWARDED DIPLOMATE STATUS BY THE AMERICAN BOARD OF FORENSIC EXAMINERS

SPRINGFIELD, MO (MMD Newswire) December 16, 2010 -- STEVEN R. GRABOFF, M.D. of HUNTINGTON BEACH, CA has earned the prestigious Diplomate designation from the American Board of Forensic Examiners (DABFE).

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Steven R. Graboff, M.D. Awarded Diplomate in Forensic Medicine

STEVEN R. GRABOFF, M.D. AWARDED DIPLOMATE STATUS BY THE AMERICAN BOARD OF FORENSIC MEDICINE

SPRINGFIELD, MO (MMD Newswire) January 17, 2011 -- STEVEN R. GRABOFF, M.D. of HUNTINGTON BEACH, CA has earned the prestigious Diplomate designation from the American Board of Forensic Medicine (DABFM).

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Steven R. Graboff, M.D. Earns ACFEI Certified Forensic Physician Designation

SPRINGFIELD, MO (MMD Newswire) March 31, 2009 -- STEVEN R. GRABOFF, M.D. of HUNTINGTON BEACH, CA has earned the prestigious Certified Forensic Physician (CFP) designation from the American College of Forensic Examiners Institute (ACFEI).

The Certified Forensic Physician is an advanced credential that recognizes additional training and expertise for forensic physicians. ACFEI has elevated standards through education, basic and advanced training. The CFP designation provides a mechanism for measuring scientific standards and procedures required to perform thorough forensic medical investigation and proper consultation.

The ACFEI is the world's largest forensic science association, and it covers a broad range of forensic specialties.

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Cases

Ask Orthopedic MedLegal Opinion Orthopedic Case review service - ask a question or submit your medical case for review by a medical expert.

Here are just some of the cases for which Dr. Graboff has provided Orthopedic Expert opinion and testimony. These are representative Personal Injury and Medical Malpractice cases for which Dr. Graboff was retained and qualified as the Orthopedic Expert Witness.

"Failure to Diagnose and Treat Acute Ruptured Achilles Tendon"

A 32 year old man while at work jumped off of the back of his work truck and thought that he sprained his right ankle. He felt a pop and had immediate pain and difficulty walking. His employer sent him to their designated industrial medical urgent care clinic where he was seen only by the physician assistant. After an examination and x-ray he was diagnosed as having an ankle sprain, placed into an “air-cast” and told to take Motrin for pain, weight bear as tolerated, and return for recheck in 3 weeks.

He was reevaluated 3 weeks later by the physician assistant who found that the sprain had improved and released him to work without limits. No clinical tests or exam was ever performed of the Achilles tendon. He tried to work but because of severe limp and posterior heel pain could not, and went to see an orthopedic surgeon 2 weeks later. The orthopedic surgeon on exam found a ruptured Achilles tendon, confirmed on MRI scan, and told the patient that he needed surgery to repair the torn tendon, but that because so much time had elapsed since the day of injury primary repair could not be done, and a tendon reconstruction surgery would be required, with a less than optimal result.

The issues in this case include: failure to be seen and examined by a medical doctor; evaluation and treatment only by a physician assistant; failure to diagnosis an acute ruptured Achilles tendon; failure to timely treat an acute rupture Achilles tendon; and delay in appropriate surgical treatment leading to inability to repair the tendon.

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"Failed Total Hip Arthroplasty with Instability from Malpositioned Acetabular Component"

A 62 year old otherwise healthy women with right hip pain was evaluated by her orthopedic surgeon, found to have severe osteoarthritis, and was scheduled for a right total hip replacement. She was admitted to the hospital, had an uneventful surgery, and was discharged home 4 days later to be seen and treated by home health nurse and physical therapist. She started to have hip popping and pain almost immediately upon beginning weight bearing and was told by her surgeon that this “was normal” and would eventually stop as she got stronger. Post hip replacement x-rays were obtained by her surgeon and she was told that everything “looked fine.”

She continued to have increasing hip popping and pain months after the surgery and her surgeon continue to tell her that everything looked good, but eventually the hip completely dislocated, requiring an emergency room visit and closed reduction of the dislocated prosthetic joint, after which she was put into a large hip brace by her surgeon, and told by him to be “more careful” and not dislocate the artificial joint again.

When she went for a second opinion to another orthopedic surgeon, as soon as he took an x-ray of her hip, he told her that the acetabular component was too vertical which caused the hip popping, pain, instability, and eventual dislocation, and advised her that she needed a revision surgery of the hip to place the acetabulum into the proper position.

The issues in this case include: placement of the acetabular component by the surgeon in an unacceptable vertical position during the initial total hip replacement surgery; failure to diagnose the cause of the hip popping, pain, and instability postoperatively from the vertical acetabular component; blaming the patient for the hip dislocation when it was caused by the instability from the mal-positioned components; falsifying the medical records postoperatively to indicate that the hip components were mechanically correct when in fact they were mal-aligned.

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"Supracondylar Humerus Fracture in an 8 Year Old with Neurovascular Injury"

An 8 year old healthy boy fell at the playground onto his outstretched left arm suffering a fracture above his left elbow with severe deformity. He was transported to the local emergency room where after examination and x-rays, he was diagnosed with a posterior displaced severe supracondylar humerus fracture. He was found on exam to have no radial or ulnar pulses at his left wrist, but the fingers, hand, and arm were pink and warm with minor diffuse tingling. The orthopedic surgeon saw him emergently in the ER and he was taken directly to surgery where he underwent a closed reduction and percutaneous pinning of the posterior supracondylar fracture. He was admitted for 24 hours observation.

The following day his pulses had not returned, his tingling and numbness were significantly worse, and his fingers, hand and arm were cool and no longer pink. He was  emergently returned to surgery by the orthopedic surgeon where he underwent exploration of the fracture and was found to have an entrapped brachial artery, which upon release was found to be torn requiring emergency vascular repair. The fracture healed well but as a result of the vascular compromise his left arm suffered permanent muscle damage and functional loss.

The issues in this case are: should the orthopedic surgeon have explored the fracture and artery at the time of the first surgery since the child had no pulses; is it the standard of care to always explore this type of fracture when there are no pulses, even if the hand and arm are well perfused; is it reasonable to closely observe the injury after the initial closed reduction and percutaneous fixation and take action only if there are no return of pulses, or a worsening of the condition.

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"Death From a Fall and Fractured Hip in a Nursing Home Resident"

A 75 year old woman, who is the resident of a nursing home, has a number of general medical conditions, including senile dementia and confusion. The nursing home performs a fall risk evaluation and determines that she is high risk for fall. In spite of telling her many times that she is not to get out of bed without assistance and attaching a bed alarm, she manages to get out of bed confused one night and is found wandering the halls. After she is returned to bed she again gets out, this time falling on her left side. She is again assisted back to bed, the doctor is notified, and an x-ray is taken of the left wrist. She is diagnosed as having a wrist sprain and she is placed into a brace.

Over the course of the next few weeks the staff notice that she is more irritable, not eating, and having increasing difficulty moving about and walking, preferring to stay in bed. The nurse determines that her left hip area is painful and an x-ray is obtained showing a femoral neck fracture. She is transferred to acute care and taken to surgery where she receives a left hemiarthroplasty for the fracture. She is eventually returned to the nursing care facility where her condition deteriorates and she expires.

The issues in this case are: was the nursing home negligent in not taking steps to prevent this patient from getting out of bed without assistance; failing to perform a complete examination after she fell; failing to promptly diagnose and treat the hip fracture; was the acute hip fracture the cause of her death; was this situation unavoidable and just an accident.

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"Misdiagnosed and Untreated Knee Injury Leads to Premature Joint Destruction and Arthritis"

A 26 year old athletic man hyperextends his knee while playing basketball. He feels a pop and the knee is immediately painful. He hobbles off the court, unable to continue to play, and rests his knee for a few days thinking it will resolve. When it doesn’t 3 days later he is seen by his family doctor who takes an x-ray and tells him he has a sprained knee, that it is not serious, and gives him crutches to help him walk.

A week later it is no better so he is referred to an orthopedic surgeon who makes the tentative diagnosis of a torn anterior cruciate ligament (ACL) and sends him out for an MRI scan of the knee. The radiologist interprets the MRI as showing a torn ACL. Four days after the MRI is performed he returns to see the orthopedist, who tells him that it is probably a sprain and that the results of the MRI are not available, but will notify him if there is any abnormality on the MRI. The orthopedist sends him to physical therapy for a few weeks where he is encouraged to aggressively use his knee, play basketball, and return to his athletic lifestyle. He is never called by the orthopedist about the abnormal MRI.

Over the course of the next two years he has repeated episodes where the knee “goes out” feels unstable, and causes repeated “sprains” that require him to return to his family doctor for treatment. He is reassured that it is just a sprain and nothing serious. He eventually goes for a second opinion to another orthopedic surgeon who promptly diagnoses a torn ACL with chronic knee instability. During the arthroscopic surgery to reconstruct the ACL the surgeon finds complete destruction and loss of the cartilage in the knee from the chronic ACL instability and repeated episodes of the knee giving out.

The issues in this case are: failure to diagnose the torn ACL; failure to follow-up and read the MRI scan; failure to notify the patient with the results of the abnormal MRI scan; failure to protect the unstable knee; failure to advise the patient of the danger of not protecting his torn ACL unstable knee and the permanent damage it could cause to the knee joint cartilage; failing to surgically treat or brace the unstable knee; misdiagnosing as a recurrent sprained knee.

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"Slip and Fall Accident Causes Injury to Spine and Aggravation of Preexisting Condition"

A 42 year old man has chronic back pain and symptoms of spinal stenosis, including numbness, tingling, and pain down his left leg as a result of severe scoliosis and degenerative disease of the spine. He has been seeing a doctor for many years dealing with these symptoms and even had surgery recommended to him to fuse his spine as a last resort.

He slips and falls on a wet floor while entering a grocery store and suffers injury to his back and right ankle. He is transported by ambulance to the emergency room where he is diagnosed with a lumbar sprain and an ankle sprain. Almost immediately he develops severe radiating pain and tingling down his right leg. He continues to treat with the same doctor, but a new MRI shows a herniated and extruded disc in his lower back that was not present on an MRI done the year before he fell.

He undergoes lumbar surgery for the herniated and extruded disc but continues to have worsening symptoms of low back pain and spinal stenosis, with increasing numbness in both legs, pain, and occasional bladder incontinence. The following year he receives additional surgical treatment including anterior lumbar interbody fusion, correction of the scoliosis, and posterior spinal fusion with instrumentation and bone graft.

The issues in this case are: even though he had extensive preexisting disease and treatment, the herniated and extruded disc was a new injury that required surgical treatment; since the force transmitted through his spine was of such magnitude that it herniated and extruded the disc, it also aggravated the preexisting scoliosis and degenerative disease warranting additional and extensive surgical treatment; would he have required the same surgical treatment for the scoliosis and degenerative disease had the fall not occurred based solely on his preexisting condition; are there apportionable issues of causation and need for medical care.

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"Total Hip Replacement Causes Limb Length Discrepancy and Drop Foot"

A 68 year old otherwise healthy and active business executive is taken to surgery for degenerative arthritis of the hip and undergoes a non-cemented primary total hip replacement. The surgery is uneventful but when he wakes up in the recovery room he has a right drop foot and loss of sensation. He is told by his surgeon that this should get better over time and he is placed into a brace (ankle foot orthosis AFO) and is discharged home.

Over the course of the next few months the drop foot does not improve. A neurologist is consulted who performs electrodiagnositc tests including EMG and nerve conduction velocity, and he finds permanent damage to the sciatic nerve at the level of the hip. A second opinion is obtained from another orthopedic surgeon who on examination and measurement of the legs finds that the operated leg with the drop foot is 1 inch longer than the non-operated leg, and that the total hip components appear oversized and too large for the dimension of the hip.

The issues in this case are: implanting total hip components that were too big for the patient’s anatomy; causing a leg length discrepancy that stretched and damaged the sciatic nerve; causing a drop foot and permanent sciatic neuropathy by over lengthening the operated leg, failing to diagnosis the leg length discrepancy immediate post-op with acute sciatic palsy (drop foot); failing to take steps surgically immediately post-op to relax the acute stretch to the sciatic nerve and correct the limb length discrepancy; was the excessive length to the leg required to provide stability to the total hip components.

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"Total Shoulder Replacement with Post Operative Brachial Plexus Palsy"

A 54 year old executive chef is diagnosed with osteoarthritis of his dominant right shoulder and is taken to surgery where he undergoes a total shoulder replacement. The operation is performed in the standard manner but when he wakes up in the recovery room he has no feeling in his right arm and the arm is also paralyzed. A neurologic consultation including electrodiagnositc studies confirms a dense brachial plexus traction stretch injury and significant damage.

After many months of physical therapy there is only minor improvement in sensation and motor function. A comprehensive neurosurgical workup is performed, including contrast MRI of the brachial plexus and cervical spine, as well as repeat electrodiagnostic testing, and it is determined that the traction injury to the brachial plexus occurred at the level of the cervical spine during the total shoulder replacement surgery. Various complex tendon and muscle transfer surgeries were performed to try and improve the function of the right arm and shoulder.

The issues in this case are: was excessive traction force applied during the total shoulder replacement; was excessive positioning used during the total shoulder replacement; does the level of the injury to the brachial plexus automatically make this a case of negligence; is this a consentable complication that can occur during total shoulder replacement surgery.

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"Trimalleolar Ankle Fracture Leads to Rapid Post-Traumatic Ankle Arthritis and the need for Ankle Arthrodesis (Fusion)"

A 36 year old waitress twists her left ankle while getting off the bus. Her ankle pops, is deformed, and is severely painful. She cannot walk and is taken to the hospital by ambulance. In the emergency room x-rays are taken and she is diagnosed with a trimalleolar fracture with dislocation of the ankle. The orthopedic surgeon arrives and performs a closed reduction of the ankle in the ER and puts the patient into a well padded posterior splint. Three days later she is taken to surgery where he performs open reduction internal fixation (ORIF) of the bimalleolar ankle fracture but does not fix the posterior malleolar fragment.

Postoperatively she is treated in a cast and eventually attends physical therapy. She has persistent ankle stiffness and inability to regain functional motion. Her pain initially during rehab was minimal but over the course of 18 months it steadily worsened to the point that she could no longer put any weight on that foot. X-ray and MRI studies of the ankle revealed severe loss of articular cartilage, post traumatic ankle arthritis, and malunion of the posterior maleollar fracture. As a last resort she underwent ankle arthrodesis (fusion).

The issues in this case are: did the posterior malleolar fracture require ORIF at the time of the initial ankle fixation surgery; was the size of the posterior malleolar fracture fragment small enough to allow the surgeon to treat it without internal fixation; was the lack of fixation and anatomic restoration of the posterior malleolar fracture the cause of the accelerated post-traumatic ankle arthritis and need for ankle fusion; was the need for the ankle fusion caused by the initial injury itself and would have occurred regardless of the treatment to the posterior malleolar fracture.

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"Fractured Arm While Being Arrested and Handcuffed by the Police"

A petite 38 year old woman is stopped by the police for erratic driving. After she pulls to the side of the road and the officer approaches her car, he suspects that she may be intoxicated and she is asked to get out of the vehicle. The officer calls for backup and another officer arrives. After further evaluation they tell her that she is going to be arrested for driving under the influence and ask her to place her hands behind her back to be handcuffed. She becomes excited and agitated and begins to resist the arresting officer. The second officer steps in to assist and they attempt to grab and gain control so she can be handcuffed. Each of the officers is at least 6 feet tall and over 200 pounds.

She continues to struggle and is pinned up against the back of the patrol car. One officer holds her left arm while the other applies a control hold to her right arm to force her to submit and be handcuffed. The control hold places the right arm behind her back while the officer forcibly internally rotates and elevates the bent arm away from her back. During this maneuver there is a palpable and audible pop in the arm, she stops resisting, and the handcuffs are applied. She complains of severe arm pain and after x-rays are taken at the local emergency room, she is found to have a spiral fracture of the distal part of the right upper arm, just above the elbow.

The issues is this case are: was excessive force used by the arresting officer applying the control hold; did the fracture occur as a result of the control hold or as a result of the woman resisting arrest; in a situation like this is it possible for a person to exert enough force on their own to fracture their own arm; but for the force applied by the arresting officer would the arm have fractured on its own due to her own muscle contractions; how could the arresting officer know that the arm was about to fracture; can a person’s state of mind be so altered that they don’t know that their arm is on the verge of breaking; did the fracture occur as the result of the combined forces of the control hold and the resistance to the arrest.

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"Wrongful Death from Deep Vein Thrombosis/Pulmonary Embolism"

A 42-year-old morbidly obese policeman slips and falls on the ice while descending stairs, causing a severe hyperflexion injury to his knee. He suffers immediate severe pain in the right knee, and could hear as well as feel a loud popping.  He tried to walk and had significant difficulty ambulating prompting an urgent visit to the local emergency department. After emergency evaluation, it was felt that he suffered a severe sprain to the right knee and he was placed into a knee immobilizer and crutches and advised to follow up with an orthopaedic surgeon. 

Approximately three weeks later, he was seen by an orthopaedic surgeon who on clinical examination immediately diagnosed a complete rupture of the quadriceps tendon at the insertion to the patella of the knee and expressed concern as to why this had not been treated sooner. Within four days, he took the patient to surgery and repaired the acutely ruptured quadriceps tendon, placing him in a long leg cast with the leg in extension, nonweightbearing and continued him on crutches. After discharge from the hospital, he was seen in followup three days later where the cast was not removed. However, it was felt that the patient was doing well. 

Three days after that, however, this individual was found unconscious and down on the floor in his bathroom in full cardiac arrest. He was pronounced dead at the local emergency room and the medical examiner/coroner report identifies the cause of death as acute deep vein thrombosis with resultant massive pulmonary embolism and blunt knee trauma. 

The issues in this case include: the misdiagnosis in the first emergency department visit where he was diagnosed as having a knee sprain only, the lack of urgent orthopaedic consultation at the time of the first emergency department visit, the failure to recognize the high risk of this individual developing deep vein thrombosis and pulmonary embolism due to his lack of weightbearing, immobilization, blunt knee trauma, lack of knee movement, delay in definitive surgical treatment, morbid obesity, and failure to provide deep vein thrombosis prophylaxis.

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"Motor Vehicle Accident with Preexisting Degenerative Spine Disease"

A 62-year-old hospital food service worker that has been permanently disabled for 10 years due to chronic low back pain syndrome as a result of advanced multilevel degenerative disk and joint disease/spondylosis, and who has been participating actively in chronic pain management treatment, is the seat belted driver involved in a motor vehicle accident. 

At the scene of the accident, the patient is able to exit the vehicle freely and ambulate and no emergency medical care or treatment is required. After driving the same vehicle home, this patient does not seek out any medical care or treatment for the next five days but then sees the same treating chiropractor who has been treating the chronic condition for many years and identifies new complaints of back pain as a result of the motor vehicle accident. 

The patient then embarks on an acute course of diagnostic evaluation including MRI, CT scans, electrodiagnostic studies, neurologic consultations and extensive chiropractic treatment based on this motor vehicle accident. 

The issues in this case are: what if any injuries were truly sustained as a result of the accident as compared to the preexistent disease process and the ongoing need for medical care and treatment in the absence of this motor vehicle accident; were there any new true structural or anatomical injuries that required care and treatment; in comparing the subjective complaints and objective findings prior to and subsequent to this motor vehicle accident, was there any justifiable increase or change that warranted acute medical care and treatment?

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"Failed Total Hip Replacement with Post-op Nerve Injury"

A 58-year-old male heavy equipment operator underwent a primary total hip replacement for the diagnosis of advanced degenerative joint disease and arthritis. Rather immediately postop, the patient began developing a sense of instability of the right hip and lower extremity with a feeling of popping and clicking and persistent pain that began within days postoperatively and persisted in the postoperative rehabilitation. 

On repeated evaluations by his physician, he was told that this was normal and to be expected.  However, after months of pain and dysfunction, he sought a second opinion. The second opinion orthopaedic surgeon found that the primary hip replacement was placed in a negligent fashion and was the direct cause of the instability, chronic pain, and dysfunction. This prompted a rather premature revision hip replacement. 

In the recovery room, immediately after the revision hip replacement, the patient was noted to have a complete dense ipsilateral peroneal nerve palsy and drop foot. Electrodiagnostically, this ultimately was found to be due to extrinsic pressure of the peroneal nerve at the level of the fibula head that occurred during the surgery. 

The issues in this case are: technical negligence in the primary hip replacement surgery causing premature failure and need for revision hip surgery, and the permanent peroneal nerve damage caused by extrinsic pressure on the knee during the revision hip replacement surgery.

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"Blunt Knee Trauma and Meniscal Tear"

A 38-year-old railroad worker, while descending a boxcar ladder, fell from the bottom rung onto the ballast bluntly striking the anterior portion of his knee in a nonweightbearing position and with no twisting forces. He was able to stand up by himself and continue working the rest of his shift. The next day, he filed an injury report and sought medical treatment for his knee injury. He was evaluated and diagnosed as having a knee contusion and treated appropriately for that injury.

Four months later, after his claim became litigated, he was seen by an orthopaedic surgeon and diagnosed as having a torn meniscal cartilage in the knee necessitating arthroscopic meniscal surgery and extensive rehabilitation. He was ultimately deemed unable to return to his usual and customary job and permanently disabled. 

The issues in this case are: was the torn meniscal cartilage caused by the fall from the railcar or was this an unrelated condition? If the meniscal tear was caused by this incident, was the treatment he received reasonable and necessary, and ultimately was he truly permanently disabled?

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"Failure to Diagnosis and Treat Acute Post-Op Cervical Spine Infection"

The patient is a 36-year-old professional country Western singer who insidiously developed neck pain with burning paresthesia into the shoulder and upper extremity with some associated numbness and tingling. She saw her orthopaedic surgeon who after MRI scan found that she had neuroforaminal stenosis and degenerative disease and took her to surgery performing a cervical decompression including foraminotomy. 

While admitted in the hospital, she had excellent relief of her symptoms with resolution of the burning paresthesia and symptoms into the upper extremity immediately postoperatively. However, within three days, she not only had a return of the same symptoms but they were even worse, spreading to the opposite side and causing a systemic response including low grade fever and nausea. Without any definitive workup, her treating physician placed her on an oral antibiotic and discharged her home from the hospital. 

The following morning, however, she returned to the emergency room even worse with symptoms now into the ipsilateral lower extremity. The emergency department physician ordered an urgent cervical MRI scan, intravenous antibiotics and she was admitted to the care of her treating orthopaedic surgeon. The following day, however, the surgeon canceled the MRI scan and discontinued the intravenous antibiotics.  He did not call for an infectious disease consult and asked the physician assistant to attempt to aspirate the cervical surgical wound area. After being advised by the physician assistant that no liquid could be aspirated, the patient was discharged home again in spite of her complaints of nausea, vomiting, fever, and increasing pain and burning, numbness and tingling into the upper and lower extremities.

The patient did not go home and instead went directly to another emergency room where she was admitted to the care of another surgeon who promptly took her to surgery and drained a large postoperative cervical epidural abscess. She developed osteomyelitis necessitating vertebrectomy and multiple additional cervical surgeries. Ultimately, she was left with a partial right hemiparesis. 

The issues in this case include: misdiagnosis, the failure to treat a significant postoperative spinal infection, and disregard for the welfare of the patient.

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"Apparent Minor Traffic Accident with Neck and Back Injuries"

The patient is a 21-year-old right front seat passenger involved in a rear-end motor vehicle accident. There is no visible damage to the vehicle except a scratch to the bumper and the patient did not develop any symptoms of neck or back pain until five days later. After retaining an attorney, she embarked on a course of medical and chiropractic treatment for over two years with treatments to the neck, middle back, lower back, hips, upper and lower extremities. 

The patient underwent multiple x-ray, MRI and CT analyses, all found to be normal. She was examined by neurologists, chiropractors and orthopaedic surgeons, all identifying her complaints of pain but finding nothing objectively abnormal on the physical exam. Upon discharge from treatment, she was deemed as suffering from a chronic pain syndrome that would forever permanently alter her lifestyle and need treatment.

The issues in this case include: the orthopaedic biomechanics of the claimed injuries, and what, if any, injuries were sustained at all; what treatment may have been indicated and reasonable, and what reasonable costs would have been associated with that treatment; do the medical findings truly support the diagnosis, impairment, and future medical needs?

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"Acute Carpal Tunnel Syndrome versus Chronic Continuous Repetitive Trauma Carpal Tunnel Syndrome"

The patient is a 38-year-old legal secretary who, for over 12 years, has been extensively performing data entry and keyboard work as a usual and customary part of her eight-hour job duties. On the way home from work, she was involved in a front-end motor collision. The collision was not severe enough to activate her airbags. However, she states that she was holding onto the steering wheel and suffered injuries to both wrists, neck and back. 

She required no emergency treatment. However, one week later, she began physical therapy for her neck and back complaints. Six weeks after the date of incident, she began complaining of numbness and tingling in both hands and all of her fingers. Her treating physician thought she may have had a neck injury with radiculopathy and sent her for electrodiagnostic studies. Those studies, however, found the neck was not the source of her symptoms but that she was suffering from carpal tunnel syndrome bilaterally, worse on the right than the left. 

With this finding, she was referred to an orthopaedic hand surgeon who promptly performed bilateral carpal tunnel release surgery and in the ultimate legal report stated that the carpal tunnel surgery was directly caused by the motor vehicle accident and blunt trauma. 

The issue in this case is: the cause of the carpal tunnel syndrome and its relationship to the motor vehicle accident. Blunt force trauma to the wrists and hands is a known cause of acute carpal tunnel syndrome. However, a more common cause is continuous repetitive trauma such as keyboard data entry, typing and computer work. Did this patient fit the clinical pattern with supporting objective findings of an acute carpal tunnel syndrome or rather was this an incidental finding and representative only of continuous trauma due to her over 12 years of typing activity?

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