On March 23, 2005, Darnell Backus underwent a donor nephrectomy – (surgery in which a healthy kidney is removed to be transplanted in another person). He did this for his mother who had been suffering from kidney failure and would otherwise have required a lifetime of dialysis.
Left side lateral decubitus position for kidney donor surgery:
Mr. Backus, a healthy 43 year old collection agent in Buffalo, had been told that his surgery would take about three hours (in the flexed position shown above) and that he’d be up on his feet within days. Instead, the operation took over eight hours, Backus woke up with pain down his left side and he was unable to walk without limping.
His symptoms did not abate, instead got much worse and on May 3, 2005, Backus underwent emergency spinal fusion surgery at C3-4 and C4-5 in which one whole vertebra was removed, as well as the discs above and below (to release pressure from the spinal cord).
Backus also ended up with a condition called rhabdomyolysis – a breakdown of muscle fibers and the release of their contents intro the bloodstream. He’d sustained permanent damage to the muscles of his left flank leading to pain there and in his back.
Claiming that his neck and back injuries were due to medical malpractice during his kidney transplant surgery in which he was in a flexed spinal position for far too any hours, Backus sued his surgeon and the hospital.
Each side presented competing medical experts on the liability issues:
- the defense argued that plaintiff suffered an infarct (tissue death from lack of oxygen) of his congenitally narrowed spinal cord during a five minute episode of low blood pressure during the surgery
- plaintiff argued that his injuries were caused by the pressure of his being in the surgically flexed position for so long
In October 2010, an Erie County jury found negligence on the part of the defendants (plaintiff’s nephrectomy surgeon and the hospital) and that Backus was entitled to pain and suffering damages in the sum of $1,750,000 ($500,000 past – 6 1/2 years, $1,250,000 future – 29 years).
On appeal in Backus v. Kaleida Health (4th Dept. 2010), the court upheld the liability verdict against the defendants but agreed with them that the pain and suffering award was excessive. Accordingly, the judges ordered a $750,000 reduction of the pain and suffering damages – from $1,750,000 to $1,000,000 ($250,000 past, $750,000 future).
The court set forth no reasons for its substantial reduction nor did its decision refer to any prior cases in this regard. While the parties cited cases in their appeal briefs purporting to justify their positions on damages, the fact is that there was little or no applicable and relevant precedent.
Plaintiff testified as to his pain, limitation and injuries at trial, as did his physicians, as follows:
- excruciating pain in his back and left side that is permanent and will get worse, likely requiring surgery
- chronic neck pain that is permanent and will get worse, likely requiring more surgery
- antalgic gait (limp) due to a dropped foot from weakness
- never able to resume leisure activities, home repair or yard work
- cannot play on the floor or roller skate with his son
- The defendants argued on appeal (unsuccessfully) that plaintiff’s counsel’s summation deliberately (and impermissibly) played on the jurors’ sympathy in referring (a) to the difficult life of his mother in raising four children while working on an automobile assembly line for 25 years and (b) plaintiff’s own struggles in being the sole guardian of his son, born just a few years earlier with cerebral palsy and other medical issues.
- Before trial, the defendant hospital voluntarily paid for plaintiff’s subsequent spinal fusion surgery (at another hospital).