Patient’s Refusal to Undergo A Safe Surgery Likely To Relieve Pain Results in Zero Award for Future Damages

On June 28, 2018, a Trial Judge in Erie County refused to set aside a jury verdict awarding a trip and fall victim $350,000 for past pain and suffering but nothing for the future even though she sustained a permanent painful injury. The plaintiff fractured her arm and the ball of her hip requiring a partial hip replacement. Following 3 months of rehab and physical therapy the plaintiff's recovery began to deteriorate and it became increasingly difficult for her to walk.

Her orthopedist recommended a revision surgery to remove her loosening femoral prosthetic and implant a total hip replacement. The plaintiff agreed but the surgery was cancelled because her husband died and she refused to reschedule it because there would be no one to care for her post operatively. Unfortunately for the plaintiff, her orthopedist testified at trial that the proposed revision surgery was a “reasonably safe procedure, which would improve plaintiff's condition and alleviate her pain.”

Based on the plaintiff's orthopedist's testimony the trial judge instructed the jury on a well settled principle of law called: “Mitigation of Damages”. The jury was told that a plaintiff is not permitted to recover future damages for pain and disability if those conditions “could have been avoided by (undergoing a surgery) which a reasonably prudent person” would have done to alleviate the pain and disability. Basically, the jury found that the plaintiff was acting unreasonably in refusing a safe surgery that would relieve her suffering. McDonough v Transit Road Apartments, 2018 WL 3234201

Ronald C. Burke, Esq

Trial Attorney with 30+ Years of Experience Attorney Ronald C. Burke, Esq. has more than 30 years of experience and has focused his career on representing clients in cases involving personal injury, medical malpractice and legal malpractice. He is a seasoned trial lawyer and has won many seven-figure settlements and verdicts for his clients over the years, including many case victories listed among the largest in the history of the New York State. He has been featured in the news and is a regular lecturer for the New York County Lawyers Association, as well as having lectured before the New York State Bar Association. Ron is also an attorney with Kelner & Kelner, a New York personal injury law firm. Awards and Accolades Mr. Burke's awards and accolades are many. Among them, he has been included in New York Super Lawyers® each year since 2010, and he has received the highest-possible AV® Rating from Martindale-Hubbell®. Verdict Search, a part of the New York Law Journal, frequently recognizes his notable successes after winning some of the highest settlements and verdicts in past years. He was also featured in their list of the "Top New York Verdicts " and "Top New York Settlements." He is a member of the New York State Bar Association and is licensed to practice law in the U.S. District Court for the Southern and Eastern Districts of New York, as well as before the United States Supreme Court. When Attorney Burke is not handling legal malpractice cases, he is highly involved in the local community. He was a member of the Village of Rockville Centre Volunteer Fire Department, has served on the local school board and as Chairman of the local Zoning Board. Learn more about Attorney Burke and how he can skillfully handle your malpractice case by contacting the Law Offices of Ronald C. Burke, Esq. right away to schedule your complimentary case evaluation. Our firm is here to help! Contact a New York Legal Malpractice Attorney Our firm provides each client's case with thorough preparation and aggressive representation, ensuring that you win the best possible results for your case whether it is settled or goes to trial. As a seasoned trial lawyer, Mr. Burke can provide the strong and relentless representation you need to establish negligence in a legal malpractice case and to recover any damages you may have suffered. Our firm can recover compensation for pre-trial and trial malpractice, violations of fee arrangements, loss of income, pain and suffering, and much more. Contact us today!


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