On December 3, 2004 Alfonso Marin had just dropped off co-workers at their construction site when he was standing behind his parked van at 172nd Street and Broadway in upper Manhattan and an SUV smashed into him, pinning his left leg against the van and crushing his femur.

Marin, then 40 years old, was rushed to the local hospital with a cold, pulseless leg and was diagnosed with severe trauma and massive degloving to his left lower extremity with multiple comminuted segmented fractures,  a complete transection of the bone and lacerated blood vessels, including the major artery and vein, causing extensive blood loss.

In the operating room, doctors initially placed an external fixation device on the femur. Then, they performed a revascularization procedure (to try to restore blood flow to the lower leg) and a fasciotomy (to relieve swelling and help blood travel into the vessels toward the foot).  Finally, though, after several hours, Marin’s leg was surgically amputated above the knee.

Marin sued the driver who hit him and recovered his full policy limits of $100,000. He then sued the hospital and the doctors (employed by the hospital) claiming that they prematurely abandoned their attempts to save his leg and should not have amputated it.

A Manhattan jury concluded that the vascular surgeon had departed from accepted medical practice when he decided that no sufficient measures would control plaintiff’s bleeding in his leg and proceeded with the amputation. The orthopedic surgeon was exonerated.

The jury then awarded plaintiff pain and suffering damages in the sum of $6,000,000 ($2,000,000 past – nine years, $4,000,000 future – 30 years).

In Marin v. New York City Health & Hosps. Corp. (1st Dept. 2016), both the liability and damages verdicts have been affirmed.

Defendants argued that due to the car crash plaintiff’s leg was already partially amputated when he arrived at the hospital and that heroic efforts to save the leg were made in the operating room but the leg was nonviable and could not be salvaged. That position was refuted by plaintiff’s experts who opined that plaintiff would have had a substantial chance (30-40%) of saving the leg if a Fogarty catheter had been used to reestablish circulation.

As to damages, defendants argued (unsuccessfully) that:

• the trial judge improperly denied their request to have the jury apportion liability with the SUV driver (which, they contended, would have resulted in a complete or at least substantial reduction of the percentage of fault and thus the amount of damages they had to pay) and
• the award was excessive because plaintiff would unquestionably have had significant permanent injuries regardless of any malpractice since his leg was crushed and “functionally amputated” from the impact.

Plaintiff conceded that his damages should be “less than an identically situated plaintiff whose entire injury was caused by the party-defendant” but argued, successfully, that the jury’s award was proper because the judge correctly charged the jurors that plaintiff “should be compensated only to the extent that [the jurors] find his condition was made worse” and not “for damage done to the leg prior to his arrival [at] the hospital.”

Here are the injury details:

• above-the-knee amputation of left leg
• placement of five prosthetic legs to date (with several more needed in the future)
• shrinking stump and ulcers
• constant “phantom” pain (despite prescription pain medications)
• worsening prognosis as to ability to ambulate leading to wheelchair confinement in the future

Inside Information:

• Plaintiff could not return to any type of construction work but was able to earn money by selling ices from a cart in the summer and churros in the winter.
• The jury heard from life care plan experts for both sides and awarded economic damages in the sum of $1,652,755 for future medical and psychological care, medications, equipment and supplies, and physical therapy.
• The vascular surgeon who was found liable testified that he had used the Fogarty catheter; however, there was no mention of the catheter in the medical records. Plaintiff’s trial counsel, Ryan Asher, stated in his closing argument that it was an “incredible moment” when one of the defendant’s experts testified that in his opinion the catheter had not been used.