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Queens County, NY

This medical malpractice action involved a plaintiff, age in his mid 40s, who visited the defendant’s emergency room with severe lower leg pain and was seen by a physician assistant. The pain had begun the night before while playing soccer and he had been seen at another emergency room and diagnosed with myalgia. The plaintiff contended that at the time he was seen by the defendants, he presented with signs and symptoms of compartment syndrome, including severe pain at the mid-shin, and swelling, tenderness and increased pain upon dorsiflexion. The PA testified that compartment syndrome was part of his differential diagnosis, and that he had never seen a case of compartment syndrome before. However, based upon his clinical examination, he diagnosed the plaintiff with a muscle strain, administered pain medication, and discharged him with instructions to see an orthopedist the following day if he was not better. The plaintiff also contended that the attending physician supervising the PA, who was ultimately responsible for the PA’s care and treatment, negligently signed off on the PA’s note without realizing that the note said no evidence of compartment syndrome, despite containing findings suspicious of compartment syndrome. The plaintiff maintained that calling an orthopedic consultation and/or measuring compartment pressures was indicated at the time of plaintiff’s visit, which would have led to a timely diagnosis of compartment syndrome and an emergency fasciotomy.

The evidence reflected that during the night, the pain continued to increase. At about midnight, the plaintiff’s wife, who is a nurse, considered bringing the plaintiff back to the hospital, but the plaintiff, having been to two emergency rooms already, opted to wait until morning when he could go to an orthopedist. The plaintiff contended that although compartment syndrome more typically occurs after a traumatic injury, the condition can occur from the exertion of exercise.

The plaintiff contended that the PA, with no experience in diagnosing compartment syndrome, should have called his supervising attending or an orthopedist before ruling out this serious condition requiring emergency treatment. The plaintiff further contended that the supervising attending physician should have recognized the inconsistency in the PA’s note and should have recalled the patient for further evaluation. At trial, the supervising physician testified that she reviewed the entire note before signing it, contrary to her prior deposition testimony that she had read only part of it, thus creating some confusion as to exactly what she had read. She did admit to signing off on the note in her capacity as the supervising attending.

The plaintiff saw an orthopedist the following day and compartment syndrome was immediately diagnosed. An emergency fasciotomy was performed. The plaintiff alleged that there was already irreversible nerve damage, which had not existed the day before when the plaintiff was seen at the defendant emergency room. The plaintiff contended that as a result of the delayed diagnosis and treatment, he suffered a foot drop and tibial nerve palsy, and that the nerve damage caused him to develop CRPS in the leg. Following several surgeries to insert and then replace spinal cord stimulators to control his pain, the CRPS spread to his back, and the CRPS caused the development of painful, disabling high amplitude tremors in his leg which occur several times a day. He is currently wheelchair bound. According to testimony from plaintiff’s treating physician, his condition is permanent.

The plaintiff was present in court only for his testimony, which lasted for a few hours on each of two days. The plaintiff’s doctor and life care planning expert maintained that the plaintiff will need extensive future medical care and equipment, including physical therapy, pain management, a custom electric wheelchair, a hospital bed, braces and a modified van for transportation. They also testified that he would require 24 hour home care services for the rest of his life. The vocational expert also testified that the plaintiff, who had been working as an ambulette driver and had an earning capacity of approximately $________ per year, is permanently unemployable.The jury found the PA 20% negligent, the supervising attending physician 40% negligent and attributed 40% responsibility to the plaintiff’s culpable conduct in failing to return to the emergency room that night. They then rendered a gross award (before reduction to present value or reduction for plaintiff’s culpable conduct) that approximated $________. The gross award was allocated as follows: $________ for past pain and suffering; $________ for past lost earnings; $________ for future pain and suffering; $________ per year for ten and a-half years with a 1% growth rate for loss of future earning capacity; $________ per year for future medical and related expenses for 26.6 years with a 1% growth rate; $________ for handicapped home renovations; $________ to the wife for loss of society and consortium; $________ to the wife for loss of past household services and $________ per year for 26.6 years with a 1% growth rate to the wife for future loss of household services.

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