FILED: KINGS COUNTY CLERK 04/23/ :08 PM INDEX NO /2016 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 04/23/2018

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1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS X BETHZAIDA CARO, Plaintiff(s), -against- PHYSICIAN' PHYSICIAN'S AFFIRMATION Index No.: /2016 ADAM DOTSON and ALEXANDER TOTH, Defendant(s), X DOV J. BERKOWITZ, M.D., an orthopedic surgeon duly licensed to practice medicine in the State of New York, upon information and belief, affirms the truth of the following under the penalties of perjury and pursuant to CPLR 2106: 1. I am a physician, specializing in orthopedic surgery, and am affiliated with Advanced Orthopaedics, PLLC, located at Kew Gardens Road, 5 Floor, Kew Gardens, New York That on April 25, 2016 Bethzaida Caro was referred to and came under the care of my office for injuries she sustained in a motor vehicle accident. I have reviewed the medical records of the patient maintained by my office, as well as my surgery on the patient, my follow-up treatment of her, my recent examination, and my discussions with her. 3. The patient stated that she was involved in a motor vehicle accident as a pedestrian on April 11th 2016 sustaining multiple injuries including her right knee. At the time of the accident the patient was seen at Brooklyn Hospital where she was evaluated, treated, and released. Following the accident, the patient came under the care of Dr. Maranga undergoing a course of conservative treatment. The patient came to my office for a consultation on April and complained of significant pain in her right knee. The patient stated that the pain in 1

2 the right knee was interfering with her activities of daily living. She was noted to have swelling in her right knee as well as leg pain. The patient denied having any issue with her right knee prior to the motor vehicle accident of April 11th The patient's past past medical history was negative. 4. On physical examination to the right knee, conducted in my office on April the patient was able to fully extend and flex to (150 degrees being normal/ i.e. 40% limitation). A goniometer was used to measure the ROM, and the normal figures are based upon the AMA Guides For The Evaluation Of Permanent Impairment, Ed. There was some swelling. There was medial and posterior medial joint line tenderness. There was mild lateral tenderness as well. At that point in time my concern was for right knee internal derangement. The plan for the patient was to continue physical therapy and to get an MRI for the right knee. In addition, I gave the patient a prescription for a knee support for her severe pain and difficulty functioning. 5. The patient returned to my office on May 9th She continued to complain of pain in her right knee. The patient stated that the pain was increasing in intensity. She had mechanical symptoms of buckling and giving away in her right knee as well. On physical examination to the right knee the patient had decreased motion with flexion to 90 degrees (150 degrees being normal/ i.e. 40% limitation). A goniometer was used to measure the ROM, and the normal figures are based upon the AMA Guides For The Evaluation Of Permanent Impairment, Ed. There was marked joint line tenderness mostly medially. There was lateral tenderness as well. The MRI report to the right knee, dated May 2, 2016, was available for my review and was positive for non-displaced trabecular fracture of the medial femoral condyle and medial patellar facet with a flat tear of the posterior horn and body of 2

3 the medial meniscus. There was a partial tear of the medial collateral and anterior cruciate ligament with joint effusion. I have also had a chance to review the March 15, 2018 radiologist's affirmation of Thomas M. Kolb, M.D., who affirms the above findings, and who also relates the findings to the accident of April 11, At that point in time the plan for the patient was to continue physical therapy and to follow up in my office. 6. The patient was reevaluated on August 29* She continued to complain of pain in her right knee. On physical examination to the right knee she had decreased mobility and Joint line tenderness mostly medially. At that point the patient was almost 5 months since the time of her accident, with continuing significant pain and difficulty in her right knee, despite efforts and conservative treatment. The patient had positive findings on physical examination and on the MRI report of her right knee, as discussed above. I explained the nature of the problem to the patient and recommended an arthroscopic procedure to the right knee. The patient elected to proceed with surgery. 7. Ms. Caro was taken to the operating room on August 31" 2016 where I performed an arthroscopic procedure to her right knee with removal of loose body from anterior medial portal of lateral compartment synovectomy, partial medial meniscectomy, partial lateral meniscectomy, and ablation arthroplasty of chondral lesion of the medial femoral condyle. The post-operative diagnosis was loose body of the lateral compartment, hypertrophic synovitis, chondral lesion of the medial femoral condyle, torn medial meniscus, and bucket handle tear of the lateral meniscus. It is my professional opinion, within a reasonable degree of medical certainty, that the above injuries were solely and directly caused by the accident of April 11,

4 8. Postoperatively the patient was seen in my office on September 8th On physical examination to the right knee the wounds were clean with no sign of infection. I removed the sutures. The patient has decreased range of motion which was expected postoperatively. At that point in time the plan for the patient was to start a rehabilitation program to her right knee. 9. The patient came back to my office on September 30th 2016 the patient stated during the weather changes she had significantly increased pain to her right knee. On physical examination to the right knee she was able to fully extend and flex to (150 degrees being normal/ i.e. 40% limitation). A goniometer was used to measure the ROM, and the normal figures are based upon the AMA Guides For The Evaluation Of Permanent Impairment, Ed. There was some joint line tenderness. At that point in time I advised the patient to get more aggressive active assistive range of motion program for the right knee and do strengthening exercises. The plan was for her to follow up in my office. 10. The patient came back to my office on January 6th On physical examination to the right knee she lacked a few degrees of full extension and was able to flex the (150 degrees being normal/ i.e. 40% limitation). A goniometer was used to measure the ROM, and the normal figures are based upon the AMA Guides For The Evaluation Of Permanent Impairment, Ed. I advised the patient once again to have more aggressive Physical Therapy that includes motion exercises and strengthening exercises. The plan for the patient was to continue physical therapy and follow up in my office. 11. I reevaluated the patient on February She complained of having pain behind her right knee. She stated that she had difficulty putting pressure on her knee as well. On physical examination of the right knee she lacked a few degrees of full extension and was 4

5 able to flex the (150 degrees being normal/ i.e. 40% limitation). A goniometer was used to measure the ROM, and the normal figures are based upon the AMA Guides For The Evaluation Of Permanent Impairment, Ed. The plan for the patient was to continue a rehabilitation program. The patient came back to my office on March 27th She stated that she was using a brace support which was helping her significantly as without it she was feeling unsafe walking. The patient stated that she had some pulling sensation in the back of her knee. She also had pain in the front of right knee. On physical examination she was able to fully extend and flex to (normal is 150). There was some tenderness and anterior tenderness. The plan for the patient was to get anti-inflammatory medications and to continue physical therapy. At or about this time, it became apparent that the patient had reached a maximum medical improvement from therapy, and that she had gotten as well as she ever would with her regimen. Given that her injuries were of a permanent nature, I suggested to her that she attempt to engage more in a home exercise regimen. 12. The patient was reevaluated on February The patient complained of having daily pain in her right knee recurrent swelling and difficulty with walking. She was using a brace support and they came. On physical examination to the right knee conducted in my office on February 2018 the patient did have an effusion in her right knee. She lacked a few degrees a full extension and was able to flex the (150 degrees being normal/ i.e. 40% limitation). A goniometer was used to measure the ROM, and the normal figures are based upon the AMA Guides For The Evaluation Of Permanent Impairment, Ed. There was joint line tenderness both medially and laterally. There was a negative anterior drawer test. 13. In summary the patient was involved in a motor vehicle accident on April 11th 2016 sustaining an injury to her right knee. Following the accident the patient underwent a course 5

6 of conservative treatment. However she continues to have significant pain and difficulty in her right knee. The patient underwent an arthroscopic procedure to her right knee on August 31" 2016 and was found to have significant findings. Postoperatively the patient underwent a course of rehabilitation program. Presently the patient remains to be markedly symptomatic. She continues to have recurrent swelling pain daily pain in her right knee she has difficulty walking and his significant loss of motion. I explained to the patient that it was not unusual to experience symptomatology in her right knee after the type of injury sustained. The patient will benefit from continued physical therapy to her right knee on a maintenance type of basis. This can be in the form of a home exercise regimen. If the patient continues to remain with symptomatology in her right knee she may need another arthroscopic surgery to her right knee further down the road. It is my opinion that the patient's injury to the right knee and subsequent treatment are related to her motor vehicle accident on April 11d' The patient has a permanent injury to her right knee. 14. It is my opinion within a reasonable degree of medical certainty that, based upon the objective tests performed, together with her chronic complaints of pain and residual objective findings, Ms. Caro sustained a significant loss of use of her right knee as a result of the motor vehicle accident of April 11, I affirm within a reasonable degree of medical certainty that the clinical findings concerning her injuries corroborate Ms. Caro's complaints of pain and impairment, and that the MRI findings showing a fracture and various tears to the right knee, are directly attributable to the injuries Ms. Caro sustained on the April 11, 2016 motor vehicle accident. 16. I further affirm that based on my examination of Ms. Caro and my review of her medical records, my surgery on her, the MRI report, and patient history, I can state within a 6

7 reasonable degree of medical certainty that Ms. Caro is substantially and permanently impaired from performing her customary daily activities, and that her injuries are of such a nature as to have rendered her substantially impaired since the date of the accident. Ms. Caro's injury is significant and will likely affect her for the rest of her life. The fact that almost two years after the accident the patient continues to experience such pain and limitations, is indicative of ligamentous and meniscal damage. 17. Ms. Caro can likely expect a lifetime of pain and decreased mobility and function of her right knee, due to the injury she sustained in the April 11, 2016 accident. It is clear that Ms. Caro's injury is such in nature as to constitute significant limitation of use of a body system or function; that this injury is permanent and consequential; that Ms. Caro will experience exacerbation and acceleration of this injury; and that this injury has caused Ms. Caro's right knee to operate only in a limited way and only with pain. Dated:, New York ~,, 2018 DO J. BERKOWIT, M.D. 7