On September 8, 2015, Alan Rosenthal sought medical treatment from Danny Sperling, M.D., an interventional radiologist specializing in the treatment of prostates. Mr. Rosenthal, then 60 years old, had a history of an enlarged prostate, he’d been recently diagnosed with two tumors in his prostate and he was concerned he might have prostate cancer.
Dr. Sperling removed eight biopsy samples to test for possible cancer but at the same time, before any results were obtained from the samples, he performed an invasive focal laser ablation (FLA) procedure.
Although there was no cancer, as a result of the procedure, Mr. Rosenthal suffered significant and debilitating injuries to his urinary system, lower gastrointestinal system and compromised sexual function.
He sued the doctor claiming that the FLA procedure was unnecessary, not indicated and done without informed consent. The Bronx County jury found that the defendant committed deviations from accepted medical practice and that the FLA procedure caused injuries to the plaintiff.
The jury then awarded plaintiff pain and suffering damages in the sum of $2,575,000 ($500,000 past – four years, $2,075,000 future – 16.6 years). The defendant appealed arguing that there was no basis for liability against him and that the damages award was excessive. In Rosenthal v. Sperling (1st Dept. 2024), both the liability and damages verdicts have been affirmed.
Plaintiff asserted a claim for punitive damages and the jury found that punitive damages should be awarded because of testimony that the procedure was experimental and that defendant directed changes to plaintiff’s medical records. That finding was vacated, though, based on an error in the jury charge.
Inside Information:
- This case has been hard fought with a three month trial, extensive motion practice, multiple appeals and a bankruptcy filing by the defendant. Plaintiff’s attorneys – Charles Gucciardo of The Gucciardo Law Firm at trial and Jonathan Dachs on appeal – have been outstanding.
- Plaintiff’s wife was awarded $200,000 (past only) for her loss of society and services.