On October 10, 2004, Donald Schultz twisted his ankle walking up the stairs at work (he was a 36 year old police dispatcher for the City of Tonawanda) and sustained a simple, non-displaced ankle fracture. He was treated at the local hospital with a brace and instructed to follow up with an orthopedic surgeon.
Mr. Schultz treated with an orthopedic surgeon the next day and, due to unremitting and severe pain on the outside portion of his foot in the area of his fifth metatarsal (the “little toe”), he continued to treat with that surgeon for the next 13 months.
As the pain increased and continued, the doctor noted a concern for RSD (complex regional pain syndrome) and he performed two surgeries on Mr. Schultz’s ankle – first on May 13, 2005 to alleviate the non-union of the fracture and then on September 9, 2005 to tighten the ankle ligaments.
Mr. Schultz’s pain was intractable and unrelenting so on November 10, 2005, he sought out and came under the care of a new orthopedic surgeon. That doctor diagnosed avascular necrosis and on November 30, 2009 performed surgery on Mr. Schultz’s fifth metatarsal and two months later he amputated the head of that toe. The pain progressed, though, and the remaining stump of the toe was then amputated.
Many more surgeries were performed by the new surgeon – 12 in all – including a below the knee amputation until finally, on October 6, 2009, Mr. Schultz underwent an above-the-knee amputation (performed by a third surgeon).
Mr. Schultz sued his first two orthopedic surgeons claiming that (a) the first surgeon should not have performed the two surgeries on Mr. Schultz’s ankle in the face of a suspected diagnosis of RSD because doing so aggravated the RSD and (b) the second surgeon performed various surgeries that were contraindicated and either without a diagnosis or with an incorrect diagnosis.
On February 4, 2014, the Erie County jury found that only the second surgeon was negligent and they awarded pain and suffering damages in the sum of $6,000,000 ($2,000,000 past – eight years, $4,000,000 future – 20 years).
Plaintiff’s orthopedic surgery expert (an instructor at the Yale School of Medicine for 30 years) opined that the second surgeon’s deviations from appropriate standards of care included the following:
- the first surgery, on 11/30/09, was done without a definitive diagnosis to warrant it in a patient with a known pain syndrome
- the second, third and fourth surgeries, on 1/25/06 (to remove the head of plaintiff’s fifth metatarsal), on 6/23/06 (amputation of the fifth metatarsal) and on 2/16/07 (amputation of the remainder of plaintiff’s fifth metatarsal), were not based upon a defined diagnosis and were not needed
- surgeries on 3/21/07 and 3/17/08 (closing a wound and excising a neuroma) caused unwarranted infections
- surgery on 10/1/08 (amputating plaintiff’s fourth toe) was based upon an erroneous diagnosis of bone infection or osteomyelitis
- surgery to amputate plaintiff’s leg below the knee was done on a viable limb, without a bone biopsy and based upon an erroneous diagnosis of osteomyelitis
In addition to all of the foregoing, plaintiff’s injuries included:
- five more surgeries or procedures after his above the knee amputation to assist with the fitting of his prosthetic leg and to deal with infection issues
- extensive depression and anxiety requiring psychological treatment and medication and resulting in a suicide attempt
- total disability from employment as of November 2009
- stress leading to divorce from his wife one year before trial
In addition to damages for pain and suffering, plaintiff was also awarded and the appellate court affirmed damages for plaintiff’s loss of past and future earnings and benefits in the sum of $1,205,989 and approximately $1,100,000 for other future economic damages over 20 years (including $655,500 for prosthetic devices, $157,866 for medical supplies and $135,744 for medications).
- Plaintiff’s ex-wife was awarded $350,000 for her loss of services claim for the seven year period from the date of defendant’s negligence to the date the parties no longer resided in the same household. She testified that she became his primary caregiver with their young son and took over all household duties. Mr. Schultz’s treating psychologist testified that his medical problems contributed substantially to the divorce after 23 years of marriage.
- In his closing argument, plaintiff’s attorney asked the jury to award pain and suffering damages in the precise sum – $6,000,000 – that they decided upon. He made no suggestion as to the loss of services claim.