salvatorefalco.com

The plaintiff, after undergoing surgery to correct hammertoes and remove two bunions on her right foot, suffered complications that led to the amputation of a small portion of her third toe and also now experiences a constant cold sensation in most of her foot. She alleged that malpractice on the part of her doctor was to blame for these complications.

Her lawyer put on a case that relied on:

• Misrepresentation of what witnesses were saying. For example, there was much discussion of an infection on the top of plaintiff’s foot. Plaintiff’s lawyer then claimed that this was proof of infection on the toe that ultimately was amputated, and that when the doctor said there was no infection on the toe, he was contradicting himself.
• Obfuscation of terminology. For example, plaintiff’s lawyer said that one of the doctors in the case claimed that plaintiff had suffered no “permanent injury.” However, what the doctor had said was that she had suffered no “permanent disability” as defined for obtaining a disabled parking pass and that checking the box for permanent disability on the application was an error on his part.
• Outright appeals to sympathy. Yes, it is sad that plaintiff lost part of her toe and had other complications from surgery. I do feel bad for her. But that doesn’t prove negligence.

Also, the plaintiff’s expert witness was a podiatric surgeon of a different kind than the defendant (he does minimally invasive surgery, the defendant does more complicated surgery that can’t be done via minimally invasive procedures). One highlight of his video deposition was an argument about how many bones were in the foot–there are 28. He had said in a deposition for another case that there were 34, and, when defendant’s lawyer brought this up, the doctor argued that 34 could be correct because “every person is different.” He also at one point said that 43 was the correct number. I wouldn’t allow this guy to put a Band-Aid on me, never mind perform any kind of surgery.

The defendant’s lawyer was obnoxious and condescending, but none of us held that against his client. He put on a defense that was made largely unnecessary by the inadequacy of plaintiff’s case. While the defendant has no burden of proof, defendant’s lawyer proved that:

• Defendant did everything that he should have done except chart one piece of data.
• The data that he failed to chart was immaterial to the complications that ensued.
• Defendant did nothing that he shouldn’t have done.

Defendant’s employer at the time of the surgery (defendant has since moved to Georgia) was also a party to the suit, but the employer’s lawyer had little to say that wasn’t covered by defendant’s lawyer.

As you’ve no doubt guessed by now, we found for the defendant. I’ll talk about that in my next post.