By John Hochfelder on
January 7, 2013 Posted in Amputation
Injuries, Medical
Malpractice
On September 24, 2000, Thomas Burke
fell from his wheelchair and injured his left foot. Mr. Burke, then 57 years
old, had been afflicted with progressive multiple sclerosis for 20 years and
had been wheelchair-bound since the mid-1990s. A week after he fell, Burke
consulted with the first of several doctors about continuing leg pain.
Unfortunately, he developed compartment syndrome and on October 11, 2000 – less
than three weeks after he fell – Burke’s left leg had to be surgically
amputated below his knee.
Compartment- Syndrome
Compartment syndrome is a painful
condition that occurs when pressure within the muscles builds to dangerous
levels. If acute, it is a medical emergency requiring a fasciotomy in
which the surrounding skin and fascia (connective tissue) are cut open and away
to relieve the pressure.
Burke sued several physicians
claiming malpractice but all were dismissed from his suit except an orthopedic
surgeon, Wesley V. Carrion, M.D., who treated him one time, 11 days after the
fall. Burke claimed that the orthopedic surgeon should have diagnosed
acute compartment syndrome (“ACS”) and performed a fasciotomy. The defense
contended that ACS is only acute for about seven hours after an injury and that
thereafter it is medically inadvisable to operate. The jury disagreed and
on May 6, 2008 they returned a verdict finding the defendant liable.
The jury also: (a) assessed pain and
suffering damages in the sum of $1,500,000 ($500,000 past – eight years,
$1,000,000 future – 17 years) and (b) awarded plaintiff’s wife loss of services
damages 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 suffering damages awards were
affirmed; however, the loss of
services awards were slashed to $20,000 ($15,000 past, $5,000 future).
Plaintiff argued, successfully, that
the pain and suffering awards should be sustained because, even though
plaintiff was wheelchair bound for many years he had been “fiercely
independent” and able physically in many respects (e.g., prepared his own
lunches, washed dishes and drove his car) but after the amputation 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 Lift
The defense argued, unsuccessfully,
that the pain and suffering awards were excessive, and the 17 year future
period too long, because of a host of pre-existing conditions Mr. Burke was
already suffering from including: progressive MS, strokes, Bell’s Palsy,
seizures heart conditions and depression.
Although the appellate court
affirmed the pain and suffering damages, it ordered a drastic reduction of
the plaintiff’s wife’s loss of spousal services and consortium verdict: from
$750,000 to $20,000.
Plaintiff argued on appeal that his wife’s
derivative award was proper because Mr. Burke had, before the amputation, been
“a loving husband and enjoyable partner” with “an intimate marriage [that] was
transformed into a sad 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 have suffered this kind of
injuries due to a serious accident. The Garcia Law Firm, P.C. was able
to successfully handle these types of cases. For a free consultation please
call us at 1-866- SCAFFOLD or 212-725-1313.
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