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 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:
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.