On a summer day in 2004, Robert Wyble was pushing a lawnmower when his legs suddenly “gave out” and he fell to the ground. It happened again about a month later and then frequently in 2005.

BERLIN, GERMANY - JUNE 15: A worker mows strips of grass in front of the Chancellery with a lawn mower on June 15, 2011 in Berlin, Germany. Germany is currently enjoying summer weather replete with thunderstorms alternating with blue skies. (Photo by Sean Gallup/Getty Images)

Mr. Wyble, then a 42 year old self-employed landscaper, consulted a neurologist who diagnosed his condition as myasthenia gravis – a disorder caused by an interruption of the signals between the nerves and muscles, resulting in weakness of certain muscles.

In April 2009, after almost five years of treatment, it was discovered by another doctor that Mr. Wyble had been misdiagnosed and what he really had was cataplexy – a condition in which an individual falls for no apparent reason and then gets right back up again.

In Mr. Wyble’s ensuing lawsuit medical malpractice lawsuit, a Manhattan jury determined in March 2014 that the doctor who diagnosed myasthenia gravis had departed from accepted standards of medical care and that the departure was a substantial factor in causing significant injuries.

The jury then returned a verdict awarding pain and suffering damages in the sum of $3,500,000 ($2,000,000 past – nine years, $1,500,000 future – 28 years).

In Wyble v. Lange (1st Dept. 2016), the appellate court affirmed the liability finding but agreed with the defense that the damages award was excessive and ordered a reduction of the pain and suffering award to $1,100,000 ($900,000 past, $200,000 future).

Here are the injury details, involving years of rigorous treatment that addressed a condition Mr. Wyble did not have, none of which details were mentioned in the court’s decision:

  • thymectomy –   a major surgery with a 17 day hospitalization in which plaintiff’s thymus was removed when his chest was “split open” and then sewn back with wires, leaving plaintiff with a destabilized chest vulnerable to minor trauma, structural irritation and loss of strength in his upper body
  • 74 unnecessary plasmapheresis treatments (an invasive procedure in which blood was withdrawn, plasma was separated out and replaced with albumin and then the blood was returned) – every two days out of 14 for three years
  • scar tissue and pain at plasmapheresis port sites and scars on his chest and shoulder
  • infection in spine stemming from plasmapheresis, with 12 day hospitalization
  • immune system diminished leaving plaintiff more vulnerable to infections  for the rest of his life
  • prescription and administration of multiple, toxic, immunosuppressant drugs, all “directed at basically clobbering the immune system,” which, especially Prednisone, can cause cataracts, hypertension, diabetes and thinning of bones
  • unable to play with his children or resume playing softball
  • development of prolonged emotionally crippling depression that ended plaintiff’s 23 year marriage

thymus

Inside Information:

  • The jury also awarded loss of services and consortium damages to Mr. Wyble’s wife in the sum of $1,000,000 (past only – six and one-half years). The trial judge ordered a reduction to $100,000 (an amount accepted by Mrs. Wyble). On appeal, Mrs. Wyble sought an increase to $250,000. The appellate court ruled that her request was unpreserved but that in any event the reduced amount was proper.
  • Plaintiff’s wife was at his side during this ordeal for years and especially during the invasive and exhausting plasmapheresis treatments in which, under sterile conditions, she had to flush out the port line each time, clean it, and inject heparin in order to prevent clots. Mrs. Wyble left her husband and moved out of their home in December 2011 (thus terminating her damages claim as of the date she moved out): “I couldn’t do it anymore. … I wanted a husband and a family …. He was … there but not emotionally.”
  • The defense did not introduce any adverse medical testimony to challenge plaintiff’s evidence and medical expert concerning the nature and extent of his injuries.
  • The jurors awarded $1,100,000 more than plaintiff’s attorney, Richard A. Gurfein, suggested in his summation for future pain and suffering ($500,000 more) and loss of services and consortium ($600,000 more).