Court Affirms MedicalMalpractice Verdict for Failureto Diagnose and TreatCompartment Syndrome butOrders Significant DamagesReduction
By John Hochfelder on January 7, 2013 Posted inAmputation Injuries, Medical MalpracticeOn September 24, 2000, Thomas Burke fell fromhis wheelchair and injured his left foot. Mr. Burke,then 57 years old, had been afflicted withprogressive multiple sclerosis for 20 years andhad been wheelchair-bound since the mid-1990s. A week after he fell, Burke consulted withthe first of several doctors about continuing legpain. Unfortunately, he developedcompartment syndrome and on October 11,2000 – less than three weeks after he fell –Burke’s left leg had to be surgically amputatedbelow his knee.Compartment- SyndromeCompartment syndrome is a painful conditionthat occurs when pressure within the musclesbuilds to dangerous levels.
If acute, it is a medical emergency requiring afasciotomy in which the surrounding skin andfascia (connective tissue) are cut open andaway to relieve the pressure.Burke sued several physicians claimingmalpractice but all were dismissed from his suitexcept an orthopedic surgeon, Wesley V.Carrion, M.D., who treated him one time, 11days after the fall. Burke claimed that theorthopedic surgeon should have diagnosedacute compartment syndrome (“ACS”) andperformed a fasciotomy. The defensecontended that ACS is only acute for aboutseven hours after an injury and that thereafter itis medically inadvisable to operate. The jurydisagreed and on May 6, 2008 they returned averdict finding the defendant liable.
The jury also: (a) assessed pain and sufferingdamages in the sum of $1,500,000 ($500,000past – eight years, $1,000,000 future – 17 years)and (b) awarded plaintiff’s wife loss of servicesdamages in the sum of $750,000 ($250,000 past,$500,000 future).On appeal, in Burke v. Carrion (2d Dept. 2012),the liability finding and the pain and sufferingdamages awards were affirmed; however, theloss of services awards were slashed to $20,000($15,000 past, $5,000 future).Plaintiff argued, successfully, that the pain andsuffering awards should be sustained because,even though plaintiff was wheelchair bound formany years he had been “fiercelyindependent” and able physically in manyrespects (e.g., prepared his own lunches,washed dishes and drove his car) but after theamputation he:
• was essentially immobilized in the hospital and in rehabilitation for approximately one year• was without a prosthesis for a year and during that time had to be moved by a Hoyer lift• underwent nine surgical procedures (three major surgeries on his lower leg and numerous debridements)• sustained global degeneration – the loss of most muscle strength and coordination throughout his body• became totally dependent on others for activities of daily living such as wheelchair transfers, showering and toileting
Hoyer LiftThe defense argued, unsuccessfully, that thepain and suffering awards were excessive, andthe 17 year future period too long, because ofa host of pre-existing conditions Mr. Burke wasalready suffering from including: progressive MS,strokes, Bell’s Palsy, seizures heart conditionsand depression.Although the appellate court affirmed the painand suffering damages, it ordered a drasticreduction of the plaintiff’s wife’s loss of spousalservices and consortium verdict: from $750,000to $20,000.Plaintiff argued on appeal that his wife’sderivative award was proper because Mr. Burkehad, before the amputation, been “a lovinghusband and enjoyable partner” with “anintimate marriage [that] was transformed into asad existence of caretaking, worry, and lack of
normalcy and support.” Additionally, plaintiff argued that he could no longer perform any household chores.• The defense argued, successfully, that there was insufficient evidence to support any significant loss of services award claiming that strokes before the amputation left Mr. Burke unable to handle the household finances, transfer from one spot to another or drive a car and that he was already essentially immobile and in need of outside physical assistance.• Inside Information: On May 24, 2009, just a year after the verdict was rendered, Thomas Burke died from brain cancer, a cause unrelated to his leg or malpractice claims. Under New York law requiring large future pain and suffering verdicts to be paid out over many years (and
discontinued in the event of death), almost all of the future pain and suffering damages in this case in excess of $250,000 will not be due.• Two months before the verdict in Burke v. Carrion, a different jury exonerated Dr. Carrion in a different case, Mistretta v. Carrion. In that case, a 15 year old who underwent a derotational osteotomy claimed that she developed compartment syndrome because peroneal nerve compression had not been addressed intra-operatively. The jury rendered a defense verdict finding no malpractice.
POSTED BY ATTORNEY RENE G. GARCIA:For more information:- Some of our clients havesuffered this kind of injuries due to a seriousaccident. The Garcia Law Firm, P.C. was able tosuccessfully handle these types of cases. For afree consultation please call us at 1-866-SCAFFOLD or 212-725-1313.http://www.newyorkinjurycasesblog.com/