1. Court Affirms Medical
Malpractice Verdict for Failure
to Diagnose and Treat
Compartment Syndrome but
Orders Significant Damages
Reduction

2. By John Hochfelder on January 7, 2013 Posted in
Amputation Injuries, Medical Malpractice
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
Compartment syndrome is a painful condition
that occurs when pressure within the muscles
builds to dangerous levels.

3. 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.

4. 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:

5. • was essentially immobilized in the hospital and
in rehabilitation for approximately one year
• was without a prosthesis for a year and during
that time had to be moved by a Hoyer lift
• underwent nine surgical procedures (three
major surgeries on his lower leg and numerous
debridements)
• sustained global degeneration – the loss of
most muscle strength and coordination
throughout his body
• became totally dependent on others for
activities of daily living such as wheelchair
transfers, showering and toileting

6. Hoyer Lift
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.
Plaintiff argued on appeal that his wife’s
derivative award was proper because Mr. Burke
had, before the amputation, been “a loving
husband and enjoyable partner” with “an
intimate marriage [that] was transformed into a
sad existence of caretaking, worry, and lack of

7. normalcy and support.” Additionally, plaintiff
argued that he could no longer perform any
household chores.
• The defense argued, successfully, that there
was insufficient evidence to support any
significant loss of services award claiming that
strokes before the amputation left Mr. Burke
unable to handle the household finances,
transfer from one spot to another or drive a car
and that he was already essentially immobile
and in need of outside physical assistance.
• Inside Information:
On May 24, 2009, just a year after the verdict
was rendered, Thomas Burke died from brain
cancer, a cause unrelated to his leg or
malpractice claims. Under New York law
requiring large future pain and suffering verdicts
to be paid out over many years (and

8. discontinued in the event of death), almost all
of the future pain and suffering damages in this
case in excess of $250,000 will not be due.
• Two months before the verdict in Burke v.
Carrion, a different jury exonerated Dr. Carrion
in a different case, Mistretta v. Carrion. In that
case, a 15 year old who underwent a
derotational osteotomy claimed that she
developed compartment syndrome because
peroneal nerve compression had not been
addressed intra-operatively. The jury rendered a
defense verdict finding no malpractice.

9. POSTED BY ATTORNEY RENE G. GARCIA:
For more information:- Some of our clients have
suffered this kind of injuries due to a serious
accident. The Garcia Law Firm, P.C. was able to
successfully handle these types of cases. For a
free consultation please call us at 1-866-
SCAFFOLD or 212-725-1313.
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