An “Elective” Amputation?

The stories are legion of frivolous claims brought by plaintiffs. And one of the things I should be doing more of, is showing that defense lawyers are capable of equally frivolous conduct. Today will be one of those days.

In this labor law case decided today (Cullen v. Makely) by the Appellate Division (Third Department), a scaffold collapses and a laborer’s leg gets crushed and needs to be amputated. The guy sues the owner of the property. The property owner then turns around and brings a third party action against the guy’s employer for indemnification (if we lose, you give us the money back, because you’re the ones that rigged the bum scaffold). The owner (defendant) makes a motion for summary judgment on that issue against the employer (third party defendant).

In order to prevail on this indemnification claim, however, the property owner must prove a “grave injury” under our Worker’s Compensation law, which as it happens, includes “amputation of an arm, leg, hand or foot.” Pretty clear cut, right? Especially since it was supported “plaintiff’s medical records and an affidavit from his treating physician who opined, with a reasonable degree of medical certainty, that the amputation he performed was due to plaintiff’s chronic pain and disability primarily resulting from his work-related traumatic accident, superimposed on a childhood injury.”

Rather than concede defeat, the poor defense lawyer raises this defense: The amputation was elective. Really. S/he did do that. Don’t take my word for it though, listen to the court:

In response, third-party defendants relied upon their attorney’s affidavit alleging that the amputation was elective and was not caused by the work accident, but was necessary because of plaintiff’s prior leg injuries arising from an accident approximately 30 years earlier when, at the age of five, he was run over by a truck. That affidavit, which lacked any competent medical evidence and contained only unsupported allegations in an attempt to create issues of fact, was insufficient to rebut the medical opinion of plaintiff’s physician.

Is there anyone in this world who thinks a construction worker would electively have his own leg amputated? Or that any doctors would violate their Hippocratic Oath in order to do it? (OK, maybe this one, but I mean normal doctors.)

What’s really amazing is that after the third-party defendant, the employer,  lost in the court below, someone actually thought they could prevail on an appeal.


7 Responses Leave a comment

  • Max Kennerly 2011.1.20 at 17:39 | Quote

    “Pretty clear cut, right?”

    I see what you did there.

  • Patrick 2011.1.20 at 19:03 | Quote

    I’ve gotten pressure from (usually young) insurance adjusters to push the line that, for instance, a three level lumbar fusion patient was faking it and wasn’t in terrific pain.

    To which a southern plaintiff’s lawyer would reply, “Yeah, jury, Mr. Patrick wants you to think that Paul Plaintiff always WANTED to get one of those back fusions! Gimme another one of those rods in my back, Dr. Feelgood!”

    When I forecast that argument, the adjusters usually shut up.

  • Gerry Oginski 2011.1.20 at 19:22 | Quote

    Looks like the defense didn’t have a leg to stand on. Pun intended.

  • Eric Turkewitz 2011.1.20 at 21:01 | Quote

    I’ve gotten pressure from (usually young) insurance adjusters to push the line that, for instance, a three level lumbar fusion patient was faking it and wasn’t in terrific pain.

    He’s not a doctor, he just plays one on TV your leg

  • Richard Hershberger 2011.1.21 at 11:22 | Quote

    The argument sounds like the lawyer was under orders to fight this one, and it is the best he could come up with. But this was appealed? That’s amazing.

  • Eric Dinnocenzo 2011.1.24 at 13:18 | Quote

    I was once speaking to an expert I had retained who also does some defense work. I asked him what, if any, differences he experienced between working for plaintiff and defense attorneys. His response: I find that defense attorneys on teh whole try to push more frivolous arguments and theories.

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