Summation - Pltf - New York Injury Cases Blog · guess what? It helped a little bit. But, again, I don't know what was going on in Dr. Stoeckl's life, because he moves on to surgery

Summation - Mr. Black 48

counsel are present.

THE COURT: Great. Mr. Black, closing

argument, please.

MR. BLACK: Thank you, Your Honor.

Good morning. It's nice to finally be able to

look at you again and even more importantly to have a

chance to talk to you again. And I'm going to say

something that you're probably sick and tired of

hearing at this stage. Thanks. I can't tell you how

much we appreciate you folks, thE!time that you put

ask, was he negligent. I respectfully ask that you

answer that question no. I ask you to do that not

because I say so but because that's what the proof in

this case supports. I've told you many of the reasons,

there are many, many more that you can think about on

your own. I deeply, deeply appreciate your time and

your efforts, and what you are doing for us. And I

thank you.

Thank you, Your Honor.

THE COURT: Jurors, take ten minutes, and

we'll see you back for Mr. Black's closing then.

Thank you.

(11:00 a.m. - Recess - 11:15 a.m.)

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THE COURT:

THE CLERK:

Jury in, please.

Be seated. All jurors and

I


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into this case. And I actually also want to make sure

I thank all the court staff. My first trial in

Buffalo, they've made me feel very welcome.

And you had a chance to hear from two of the best

trial lawyers in all of New York State, Mr. Weidner and

Mr. Miller. And you'll notice that during their

openings and their closing, I gave them the courtesy

and the respect, that I never objected. And, boy, did

I want to object. But now I get to talk to you.

And I want to tell you that a trial is simply a

search for the truth. It's a search for the truth so

that justice can be done. And it's your job to

determine what the truth is.

Now, let me tell you, it's my belief that my job

and Don and Kathy's job is to present all the

information to you so you can arrive at the truth. Not

read selected parts of medical records, but to give it

all to you. And so you saw, I certainly called

witnesses that helped our case; I called witnesses that

actually hurt our case; and I called witnesses that

"probably "didn't make"mu"ch of"a difference either way,

and bored us all to death. But I wanted to make sure

that you had all the information.

And so I want to talk to you in my closing about

the truth that you heard from that witness stand.


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Because, you know, Mr. Weidner's right; sometimes bad

things happen to good people. But in this case,

malpractice is what happened to these good people.

Now, you get a chance to tell us what the truth

is. And you're going to do that by filling out a

verdict sheet. And you're going to make certain

answers to the questions. And so the first question is

going to be, was the defendant Andrew Stoeckl negligent

in his care and treatment rendered to Don. So what's

the answer to that question?

Well, let's start to talk about what the proof

showed about his care and treatment of Don. Within a

very short time period, first seven or eight days, Don

suddenly has these symptoms that Dr. Stoeclcl tells you

are very different than a simple fractured ankle, this

exquisite pain in the toe and on the side of his foot.

And as I told you in my opening, Dr. Stoeckl did

everything right to start with. Hey, you heard that

from my expert, too. He i~ediately saw this weird

condition and said, I think this might be RSD. And so

he's~nds him t~ D'r,.Slough, ~is':partner. And what does

Dr. Slough say? Hey, it looks like RSD to me, too. We

should probably do some testing, right? And what's

kind of amazing is you'll see during his care and

treatment of Don, whenever he gave him any treatment


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that would be effective for RSD -- anti-inflammatory

pain medications, numbing the area -- it provided some

relief.

But Dr. Stoeckl for some reason dropped the ball.

And, you know, I never understood why. We're walking

right along, and he's looking at the foot, he's looking

at the foot, and then all of a sudden he goes on to the

ankle. And I never found out why until he testified at

trial here. Because what did we hear that happened

right about the time of that first surgery into the

second surgery? He told you his life was in an

upheaval, right? He's switching his entire practice

and moving to this big new facility. He told you that

unfortunately his wife's going through a difficult

pregnancy. There is a lot going on in his life. And

he admitted to you, because of that, some of his

records were omitted, some of his records were lost,

and it affected patient care. Don had to pay the price

for that. And that's the problem. Because of those

distractions, or for whatever reason, Dr. Stoeckl

forgot about what his own note said,. that Don was

suffering from RSD.

And as you heard from every doctor that took the

stand, including Dr. Stoeckl, if you operate on someone

with RSD, we know that it will only cause more


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~problems, an increase in pain and an aggravation. But

that's what Dr. Stoeckl did. And Don's pain got worse.

So much so that after the first surgery, for the first

time, the guy with a broken ankle, he prescribes him

narcotic pain medication, Lortab. And not five days,

folks; two separate prescriptions, 110 pills. And

guess what? It helped a little bit.

But, again, I don't know what was going on in Dr.

Stoeckl's life, because he moves on to surgery two.

And '"e!cno"l\vhat happened after surgery two. The whole

thing blew up. Like I told you in my opening, to start

with, he had that little light bulb that's saying RSD,

and then the light bulb went off. But when he did that

second surgery, it wasn't a light bulb, it's a

screaming neon light. And what does he do?

Immediately, let's send him to Dr. Hurley; let's send

him to Dr. Bagnall; let's order the MRI. It was lik.e apanic, right?

But Dr. Stoeckl sat there in front of you and said

he never had RSD. I don't know how he can do that,

21 '. because his last office note, remember the one that's

22 not in the original paper file, it wasn't in the

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certified medical records, what did it say? As he told

you, this is his opinion, within a reasonable degree of

medical certainty, even back on November 2nd, 2004, I


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suspected an element of reflex symptomatic dystrophy

contributing to his pain, given the amount of pain he

was having.

If we scroll down, after he did the Brostrom, from

the immediate post-operative period, he had pain again

out of proportion that I would expect, the pain that he

had initially following the injury in the small toe,

remember the pain that was so bad Don actually cut a

part of his cast off to try and relieve the pain? And

Mr. Schultz was understandably unhappy with the amount

of pain and discomfort in his foot. And what's his

ultimate impression of Don's condition? Pain out of

proportion that I would expect in the left foot.

And I want you to remember something else, too,

just so I don't forget it. I think I heard one of the

attorneys say Don went looking for another surgeon

because Dr. Stoeckl said he wouldn't do surgery. But

you remember Dr. Stoeckl specifically said he never

said that. That wasn't him.

And on that pain in the immediate post-operative

peri?d~ what was Mr. Miller's argument? Well, that was

from synovitis or synovitis in the toe. How in the

world does an ankle surgery suddenly cause synovitis in

the toe?

And let me ask you something else? If Don doesn't


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have pain throughout the whole course and treatment,

why is Dr. Stoeckl telling Don and Kathy that in both

those surgeries, not only is he going to do ankle

surgery but he's also going to do an injection in the

toe while he's under anesthesia.

And, you know, I found something else striking in

Mr. Miller's closing. Remember what he said? All

orthopedic surgeons know what RSD looks like. It yells

at you, RSD. Do you remember when he said that? Well,

Dr. Stoeckl is a smart man. And the first time he saw

these symptoms in Don, what was his immediate reaction?

RSD. Same with Dr. Slough. Same with Dr. Hurley.

Same with Dr ..Ritter. The same with Dr. Antalek --

Antalek. In fact, every orthopedic surgeon but one,

Dr. Parentis. I ask you, are they all stupid? They

don't know what it looks like? This isn't something

Dr. Hermele made up. This is something that's

throughout Don's medical records.

Dh, God, I said the word medical records. Why did

I go on so long about the medical records? You heard

.from every ~itness .that the medical records are the key

evidence in this case. If documents are removed or

purged from a file, it is impossible to prove a

doctor's negligence. If we hadn't found those

documents, we would have never known about all these


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signs and symptoms of RSD that Don had. And we know

from the narrative that Don's pain was much more

extensive and lasted throughout his entirety of care

with Dr. Stoeckl.

And you heard Dr. Stoeckl's explanation. In my

heart of hearts, I don't know if he removed the records

from the file. But somebody did. Don't you think it's

just a little too coincidental --

MR. MILLER: I object to that, Judge.

THE COURT: On the basis of what? Overruled.

Keep going.

MR. BLACK: Don't you think it's just a

little too coincidental that the only records that were

missing had to do with Don's toe pain? The only

records missing had to do with RSD. No notes missing

about the ankle.

And what really bothers me and I think what should

really bother you is what else is missing. What do you

think the October 20th note shows, that nobody's been

able to find? And what effect did that have on Dan's

treatment. down the road? Now, granted, Dr. Parentis

never looked at the records. But how about all those

other doctors who examined Don and gave him opinions?

How about the experts that testified here? We'll never

know how it might have affected Dan's outcome, or the

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Summation - Mr. Black

trial in this case.

In fact, you heard when Dr. Rohrbacher took the

stand, although I butchered his name again and always

will, he was also reviewing a purged file, right? He

didn't have his own partner Dr. Ritter's records where

Dr. Ritter disagreed and said that Don may have

atypical or abnormal RSD. He didn't get that record.

He didn't know about the record where the doctors all

got together and agreed that based on Dan's symptoms,

further surgery should not occur. And I'm not going to

beat up on him. Why was he here testifying in support

of Dr. Stoeckl? He told you, he's been friends with

him for many, many years, and quite honestly in front

of you said, I'm going to be biased. So were we

surprised by what he said in support of his friend?

So what's the unbiased truth? What did Dr.

Stoeckl do wrong? Well, you heard from Dr. Hermele,

who has been beaten mercilessly in both the closings.

Why did I bring Dr. Hermele to come here to talk to you

folks? Well, let's find out a couple of things about

him. The first is he isn't,so~e professional witness

that testifies for plaintiffs, he's a witness that

testifies for both sides. He told you what, for like

15 years, he worked exclusively for free for defense

attorneys reviewing malpractice cases. He's an


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orthopedic surgeon that still sees patients every day,

and he's testified both for and against doctors. And

something else. He's been practicing orthopedic

surgery for 44 years; longer than Dr. Bluman, Dr.

Stoeckl and Dr. Parentis together. He's been

practicing and teaching at Yale medical school, and

he's seen and heard everything.

He didn't go off and do fellowships; instead he

went into the army and he treated our Vietnam veterans

that came back that had suffered traumatic injuries to

their legs and their arms and that now had

osteomyelitis and now had RSD.

So did he tell the truth from that stand? His

testimony was very different than the other experts

because right from the start he told you what was right

and what was wrong. He told you, whether it hurt or

helped Dan's case, what the truth was. So he told you

Dr. Stoeckl's initial care of Don up to the first

surgery was fine. He told you both the surgeries, they

were performed technically correct. He told you Dr.

~toeckl ~~s on"the "right path, but ~e "just dropped the

ball. If Dr. Stoeckl had looked at his notes, listened

to his patient, he would have never performed those two

surgeries, and we might not be here today. Folks,

that's what we mean by rendering negligent care, not


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seeing what was there to be seen, and not acting on theinformation right in front of you.

So the second question you're going to have toanswer as it pertains to Dr. Stoeckl is was his

negligence a substantial factor in bringing about theinjuries sustained by Don.

So what was the effect of Dr. Stoeckl's

negligence? It's simple. If he'd not performed thosetwo surgeries, if instead he'd sent Don to pain

management earlier, we wouldn't be here. He had the

first opportunity to stop his pain and suffering.

Instead, he performed that second surgery that put Don

back into that same excruciating pain in his foot that

he had at the beginning, and Don went on to treat with

Dr. Parentis. Dr. Stoeckl had the first chance to stopall this from happening and instead he left Don inexcruciating pain.

What about Dr. Bagnall? Who called him totestify? It was me. I knew what his records said.Why did I have him come talk to you folks? Because Iwanted you to have the whole truth, for good.or for

bad. And what did he tell you? He said, I examinedDon twice. He told you that when he examined Don on

the first time, he found him exquisitely tender to the

touch, but did not believe that he had allodynia. He


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felt his foot had temperature changes. And based on

that first examination, he believed Don had a nerve

disorder. He prescribed him pain medication and nerve

medication, the treatment for RSD. And guess what? It

worked. By a second visit with Dr. McPherson, his pain

level went from a 9 out of 10 down to a 5 out of 10.

But then he sees Dr. Bagnall for the second and last

time. And at that time Don says, my pain is a 30 out

of 10. Sound like pain out of proportion? Sound like

a bad day for someone that has an RSD condition? But

when Don sees Dr. Bagnall on that day, something

changes. We know he reviewed Dr. Stoeckl's medical

records -- of course, we don't know what he reviewed.

And, unfortunately, Dr. Bagnall has destroyed all of

his records other than those typed notes. So we have

no idea what he looked at. But after two visits, he

throws up his hands and says, while I still list the

diagnosis of nerve disorder, I don't think it is a

nerve injury. Instead, any invasive treatment, meaning

surgery, is not recommended at this time. Huh? Why

not?': If it's not a nerve injury, if you really believe

that there's something physically wrong with the foot,

why would you be telling the patient don't do surgery?

Something doesn't add up, does it?

And you know what's even odder? When Don comes


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back and sees this fellow Dr. McPherson about a week or

so later, what happened with the pain medication and

the nerve medication? That pain that was a 30, it's

back down to an 8. And while Dr. Bagnall in his note

says he finds no swelling and no allodynia, at almost

the exact same time that he's examining Don, Dr. Hurley

performs an exam and he finds that the fifth

metatarsophalangeal joint on the left foot is extremely

swollen and red, it is exquisitely tender to touch, and

an attempt to injecting the area with cortisone,

remember where they just touched him with the needle,

he couldn't even tolerate that. And so his impression:

Reflex sympathetic dystrophy, also known as regional

pain syndrome, or possible bursitis. I don't have an

answer to that one.

So that taJ<.esme to Dr. Parentis. And you're

going to have to answer the same question, whether

his -- whether he was negligent in the care and

treatment rendered to Don. And it's hard to know where

to start, .so I'm going to start at the beginni~g.'. .What did Dr. Parentis tell you from that stand?

He told you when Don carne in for the first time, Don's

crying, he's hysterical, he's swearing, he's

irrational. And someone in that state, he takes a

history from him, and then relies on it for the rest of


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his treatment. Someone in that state, he doesn't say,

geeze, this guy's really upset, people aren't too clear

thinking when they're upset, maybe I'll give Andy a

call and see what he's done for the last year, or maybe

I'll give Dave Bagnall a call and see what he says.

Geeze, he's telling me contradictory things; surgery,

not surgery; nerve, not nerve. Maybe I want to ask

those guys, could you just send me a quick little

letter and tell me what's been happening with this guy?

Instead, he refuses to look at the records, and never

spoke with any of them, other than Dr. Stoeckl about a

year later to tell him he thinks he's going to be sued.

Instead, the only thing he does is get a second MRI,

take him off the pain and nerve medication that was

working, and schedule surgery.

I don't know about the MRI, either. He just had

an injection in his toe.

But I think there's something else that you heard

that throughout his care and treatment of Don, there

was a huge communication problem. You heard from both

Kathy.and Don, what did Dr. Parentis tell them at that

first visit? You have a dead bone in your toe.

Avascular necrosis. And remember I asked Dr. Bluman

about that, I said, what's avascular necrosis? His

identical words, dead bone. So the doctor tells Don


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and Kathy, you've got a dead bone in your toe. What do

you think they say? Oh, my God, cut it out, right? If

you recommend it should be cut out, then cut it out.

He doesn't tell them, you've got synovitis, an

inflammation in your toe that's treated with an

injection and aspiration. He told them the bone is

dead. So Don agrees to his recommendation to do

surgery.

And what happens after that first surgery? The

pain comes right back. So, again, what is Dr.

Parentis's diagnosis? What does he tell Don is wrong

with him? What is his operative diagnosis? Left fifth

metatarsal avascular disease involving the metatarsal

head. Again, on the doctor's recommendation, Don says

go ahead and cut out the metatarsal head. And I think

Mr. Weidner misspoke, because when he went in and

looked at that metatarsal head, doctor said it looked

normal, he cut it out anyways. He never sent it to

pathology. The only thing he sent to pathology was a

little bit of that synovitis stuff he found. The, "

metatarsal h~ad'iook~d so normal to him, he threw th~t

out. And there was never any evidence of avascular

necrosis. That bone wasn't dead. But he doesn't tell

Don that because, as he told you, he doesn't tell

patients about pathology results unless it's cancer.


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So that takes me to surgery three where he cuts

off Don's toe because of pain. And I want to stop

there. You had a chance to hear from the $35,000 man,

Dr. Bluman. You heard all the horrible things he had

to say about Dr. Hermele on direct, right? Are we

surprised? But was it the truth? I want you to

remember what he said when I got to question him. Pain

can be a diagnosis and a symptom. Well, guess what?

Dr. Hermele agrees. You go into the doctor and say,

I've got pain in my toe, and the doctor does an

examination, nothing obvious, I haven't had a chance to

do X-rays, MRls, CT scan, and you've got to list a

diagnosis in a billing statement, what do you write?

Pain. Nothing wrong with that. But what did Dr.

Bluman tell you? What has Dr. Bluman told hundreds if

not thousands of people? When you come to an

orthopedic surgeon with a complaint of pain, before he

can do any type of treatment, we must arrive at a

definitive diagnosis. And he told you, he would never

do surgery without a definitive diagnosis.

So by 'this time" non's been treating with Dr.

Parentis for like what, seven months, right? It's been

seven months. In seven months Dr. Parentis hasn't

ordered any test other than X-ray, never consulted with

any other doctor, never sent Don to any other doctor.


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Even though I took his deposition under oath over

two years ago and he told me he did not remember thatconversation where they discussed the toe amputation,

he came here in front of you folks, and suddenly he canremember what was said, how it was said, what Don meantby it, that Don was serious by it. Did you think thatwas the truth?

And to top that off, he told you folks, he doesn'tgive treatment recommendations.

You heard from both Don and Kathy that beforeevery single surgical procedure they'd say, Doctorremember, they'd take that little sheet with their

questions. What are you going to do? And what's your


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recommendation? If I was your brother or your son,

what would you do?

Did it sound truthful to you when Dr. Parentis

said -- I said, Doctor, so you're telling me, if I say,

what's your recommendation, you'd say, I refuse to

answer? Did Dr. Parentis seem like the type of doctor

that would not speak his mind? Did he seem like the

type of doctor that would refuse to tell you what he

thought was best? I mean, isn't that the sale reason a

person goes to a doctor, for their recommendations?

And you know I guess there is something that we

can blame Don and Kathy for. You see, Dr. Parentis and

Dr. Stoeckl, they weren't Andy and Mike to them. They

were Dr. Stoeckl and Dr. Parentis. They trusted them.

They put all their faith and trust in them. And

whatever Dr. Parentis told them, they believed him. So

Dr. Parentis, if you want to blame Don, you can. You

could blame him for trusting you.

And that brings me back to one of the key

negligent acts throughout Dr. Parentis's care and

treatment of Don. A~ain, both Dr. Herm~le artd Dr.

Bluman, Dr. Parentis's, own expert, all agreed, you

cannot perform surgery without a definitive diagnosis.

And yet Dr. Parentis is lopping off body parts with a

diagnosis of pain. He doesn't know what's wrong, but

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his solution is to cut it off. So I want to talk to

you about what happened in that surgery where he cut

off the toe. You see, you're going to hear from Dr.

Parentis that when he did that surgery, he found the

cause of most of Don's pain, a neuroma. But you

remember on direct what he told you? He said well,

when I got in there, there wasn't a neuroma, it was

just this little entrapped nerve, right?- And so as

long as I was in there, I cut that off, and then I

lopped off the toe. He said, yeah, pathology said it

was a neuroma, but, no, it was just a little entrappednerve.

And then on August lOth, he writes a letter to

Dr. Pawlowski. I refer you down to this part. When I

was dissecting the bone, we did see a very large, not

entrapped nerve, neuroma, which was sent to pathology

and was read as a neuroma. r believe the source of

much of this pain ail along was the neuroma, in

addition to some abnormality in the bone.

r don't know what the abnormality in the bone was

because of course pathology was negative. And-I don't

know what the abnormality in the bone was because you

heard from Dr. Bluman, he cut off a healthy toe.

Fol~s, cutting off a healthy toe without a

diagnosis is what we call malpractice.


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So now he's cut off the first part of the toe.

And guess what? The toe pain goes away. Why did thetoe pain go away? You can't have pain in the toe if

it's gone. But what happens next? The pain moves up alevel.

And I have to tell you folks, I thought that wasthe most critical admission you heard from Dr. Parentisin his testimony. Remember when he was telling you

about that lady that came in and she had RSD, and he

and they wanted to do an amputation, he says oh, no,

no, no, with a patient with RSD, you donlt amputatebecause if you amputate below the knee, she's going to

have pain at that ~evel, and each time we slice. So if

we cut off a toe, it's going to move to the stump; if

we cut off the stump, it will move to the next toe; and

if we cut that off, it's going to move to the foot; andif we amputate below the leg, it's going to move up.Remember you said that? And Dr. Hermele had a word forthat, it's kind of gross but he called it salamisurgery. You slice and you slice and you slice and you.,slice. And, e'acht'imeyou slice, the pain just moves up

a level. Does that sound familiar to anybody?

And Dr. Parentis made another untruthful statementto you folks on direct. In a very loud voice he said,this gentleman never had RSD, and I've never heard of


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abnormal or atypical RSD in my life other than from

Dr. Hermele. Well, what about Dr. Ritter's note that

he had a chance to review; Dr. Ritter's note, right

before he cut off Don's toe. It was his opinion that

Don was presumably suffering from a possible abnormal

type RSD syndrome. So we found out what the truth was

there. This isn't something Dr. Hermele made up.

So after the toe amputation, now the pain is in

the next level of the stump. And what is Dr.

Parentis's definitive diagnosis as to the condition?

Pain. And how does Dr. Parentis treat pain? By

cutting that portion off. Again, he cuts off a healthy

body part without a diagnosis, the hallmark of

malpractice. It's so healthy, he doesn't even send it

to pathology, he just throws it out. And what do you

think happens? Don gets his first infection. And as a

result of that surgery, the pain moves on to the next

level, now the left -- the rest of the area where the

fifth toe was and on to the fourth toe.

And remember in Mr. Weidner's opening, and I was

surprised" he said ita~ain in closing, he was talking

about this stage one, stage two, stage three. There

were no stages. There was one stage, from when Don

first started treating with Dr. Stoeckl until he lost

his leg. Remember Dr. Bluman talked about it on


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direct? And then when I walked up to him and I said,

wait a minute, Doctor, you said eight months, no pain?

Let's not look at the records selectively, let's look

at all of them. Pain in the fourth toe, pain in the

fourth toe, pain in the fourth toe, pain on the lateral

side. And I give Dr. Bluman credit, because when I

finished that, what did he tell you folks? There were

no stages.

So we've got pain again. And what does Dr.

Parentis do at this time? Now he goes in and cuts out

a neuroma. And in his operative report, and I showed

it to you folks, he says neuroma we'll usually treat

with injections but in this case we don't try

injections because, he says, injections didn't help

Don's neuromas in the past. What? When did he ever do

an injection in a neuroma on Don? Must be another one

of those communication errors. And this is when Don

develops the second infection, once again, an infection

at the Ambulatory Surgery Center of Western New York.

And now we've got Dr. Cumbo involved again.

And Dr. Parentis tries to solv~.the infection by

cutting out another part of Don's body. On May 28th,

2008, he cuts out his fourth metatarsal head. And,

again, he's trying to find out why Don's wound won't

heal. And he tells you, I think the infection is


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either in the metatarsal head or those little metal

anchors, but I really don't think it's the anchors

because that's too far back, but I'm going to go find

out. So he goes ahead and does that surgery. And I

want to talk to you about this just a little bit.

Remember Dr. Biuman talked to us about this, and I

asked Dr. Parentis under direct examination, I said,

Doctor, this operative report, it's in sequence, right?

It goes through step by step, it's perfectly accurate,

shows exactly what he did. And so if we come down to

this portion, he says, we were able to find the anchors

and remove both. We irrigated copiously. We took

cultures and we sent the anchors with those cultures.

And remember I asked Dr. Bluman about that, I said, you

know, Doctor, here's my concern. You~re taking

cultures, and you're removing a body part, and you're

pulling it through an infected wound, won't it be

contaminated? Because, you know, if you're pulling it

through the wound, there's contamination in there. And

he says, no, no, no, look at the operative report.

Se~,"what we do is we make sure that we go ahead and

irrigate that area. He said it was like taking a power

washer, right, and clean out all the area, so that way

when we then remove the bone or the piece of tissue, it

doesn't get infected.


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And in his operative report again he tells you

that the metatarsal head looked reasonable. And so now

he's got the metatarsal head in his hand. And

infection is either in the anchors or in the head. And

he decides to throw out the metatarsal head and not

have it tested. And so obviously we have no idea what

that showed.

Which takes me to the next surgery. And, folks, I

think this~is the next very critical error, in a series

of errors that Dr. Parentis made. And it might be the

one that cost Don his leg. You see, even though Don --

I'm sorry, even though Dr. Parentis had just cut Don's

foot open and found no evidence of osteomyelitis, and

even though he just told Don, hey, I reviewed that MRI,

and we all agree that the MRI really doesn't show us

anything because it just could very well just show

trauma from all the surgeries I've done, and I think

every doctor agreed to that here, he decides once and

for all, I'm going to cut him open and find out if he

has osteomyelitis in his fourth metatarsal. And Dr.

Parentis told"jou, "this is my one and only bone biopsy,

right? So let's take a look at that procedure.

His preoperative diagnosis, suspected left fourth

metatarsal osteomyelitis. And if we move down to the

procedure -- remember I had him go through this -- he

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goes through the incision, and he got down to the MTP

joint. Again, this appeared to be relatively benign or

normal, with just scar tissue. He then debrides the

soft tissue, which he told you is basically cutting it

out. And he took cultures of the incisions prior to

getting into the deep wound. He then cultured the area

of the MTP joint, and then he excised the soft tissue

in the area and sent that for culture. Finally, we

excised the distal third of the metatarsal. This is

where he cuts the bone out and sends it for culture.

It loolced to be normal with no obvious ostea, and there

also was no evidence of any abscess or pus.

So what did he just tell you he did? He's

reaching into the infected wound and pulling out the

bone through the infected wound. And can somebody tell

me what did he forget to do? What Dr. Bluman told you,

he didn't irrigate until he was all done. He pulled

the bone through the infected wound, sent it to

culture. And guess what culture showed? The exact

same infection on the outside of the bone as was in the

wound, both of"them cultured e~actly the same, as Dr.

Parentis told you.

And so you've got the bone in your hand. You can

order any test you want on it. Everybody agrees that

pathology is the only chance you have to actually look


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inside the bone. And he sends it for culture. And

that's fine that he sent it for culture, that's right,

we want to find out what's the bacteria, what's the

organism in there, what's the bug, so we can treat it.

No problem with him sending it to culture. But you

want to find if there's osteomyelitis inside the bone.

And instead, he throws it out.

That was the chance to look at the bone. Have him

take slices and see if there was osteo. And if he'd

done that, he would have found out there was no

osteomyelitis. He chose not to get that information.

Is that another communication error? No, that's

malpractice.

If he'd sent the bone, he could have told Don

that, you don't have osteo, and the salami surgery

could have stopped. But instead, when Don returns to

see him on May 19th, 2009, without any further

testing that Dr. Parentis reviewed -- make sure that's

clear, that last MRI, he never saw that. He tells Don

and Kathy, you have persistent o?teomyelitis, and you

need to have your leg amputated. "He tells him~" if you

donlt have your leg amputated, you could die.

And that brings me to the next major communication

problem. I want you to think about this for a moment.

Who is Dr. Parentis's team? Dr. Parentis, Matt and


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Dr. Cumbo. He chose not to have anybody else on the

team. And Dr. Cumbo is treating the infection issue,

right? He knows he's going to have a conversation with

Don and Kathy where they're going to discuss cutting

off his leg. And Don hasn't seen him in a while and

he's been treating with the infectious disease doctor.

I went through his file, and he told you, there's

not one record in Dr. Parentis's file from Dr. Cumbo,

other than back in March of 2007! when he saw him for

the first time. There's not one note from Dr. Parentis

to Dr. Cumbo. Don't you think you write the infectious

disease guy a letter and say, hey, can you tell me

what's going on with this guy?

And he told you that all of Don's hospital records

were available on his own computer, right? Dr.

Parentis said, I could look right at them. Take you

what, five minutes to look right at them? Instead! he

didn't do anything.

And if Dr. Parentis had asked that question of Dr.

Cumbo, or looked at those records, what would he have

learned~tontrary to what Dr. Parentis believed! Don

did not have sepsis between that toe amputation and the

date where he told him he needed to have his leg

amputated. He had a mediport sepsis infection, not a

blood infection. Not that life-threatening problem


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that he told you about. And when I presented those

laboratory results, the blood test to Dr. Parentis,

I'll give him credit, because he immediately told you

that.

So one of the primary reasons that he listed for

doing this surgery, that Don had blood sepsis, it never

existed. And with a simple letter, he could have found

that out. And for some reason, he chose not to get

that information. He chose not to communicate with his

only other team member, and not work with him.

So now he tells Don and Kathy the only viable

alternative is to have your leg amputated. And I want

to be crystal clear about this. Don doesn't want to

have his leg amputated to help his quality of life.

He'd like to keep his leg, thanlc you very much. He

agrees to accept Dr. Parentis's recommendation because

Dr. Parentis tells him, you've got osteomyelitis, and

without an amputation, you could die. And so that's a

tough decision. But it's an easy choice. Amputation

rather than death.

'So o'n'"J~ly 22nd" 20'09,Dr. Parentis cuts off

Don's leg because he has osteomyelitis. And we all

know this. He didn't.

How do we know this? Because pathology

afterwards, the gold standard, reveals no evidence of


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osteomyelitis. And remember I put it up on the screen

for you. This isn't where they took one little

section. Seven sections all throughout every single

part of the leg, looking for osteomyelitis.

The only excuse they could offer was well maybe

they missed that little part where the osteo was.

Really?

But I think what's more telling is what Dr.

Parentis does with that information. We know he got

it, right? His initials are right on it. He got it

before he saw Don and Kathy the next time. So does he

call them immediately and say, hey, I got good news.

You didn't have osteo. Or maybe even say, hey, I think

I got good news, pathology doesn't think you have

osteo. He never tells him at all. He also never tells

Dr. Cumbo, or Dr. Ritter, or anyone.

Just like Don and Kathy, Dr. Cumbo never learned

that pathology was negative until this litigation was

started.

Nobody would have ever known about it if this suit

had not been brought. Does that sound" like"the actions

of a doctor who believes he did nothing wrong? And he

tells you the reason he didn't tell Don or Kathy or Dr.

Cumbo is because it would make no difference, right?

No difference. Remember what Dr. Hermele told you, it


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would be like a woman that thought she had breast

cancer and the doctor goes in and removes the breast

with a mastectomy and then sends it to pathology and

finds out there's no cancer. Don't you think the

doctor would immediately call his patient and say, hey,

there's no cancer. Cause if he doesn't, that patient's

going to spend the rest of their life worrying, it's

going to go to the other breast, or in my body, and I

could die.

But not in Don's case. So instead when the pain

moves up the next level, and he goes in and sees Dr.

Parentis for that last time, literally standing on one

leg, and says, Doctor, I think I've got to have an

above the knee amputation, don't you think you'd tell

him at that stage? Do you think it would have made a

difference? Do you think it would have made a

difference to Dr. Cumbo and Dr. Reynhout, who relied on

Dr. Parentis's statement that Don had osteo in the leg?

You better believe it would have made a difference.

Don would have never had his leg amputated above the

knee if he knew the pathology was negative and he

wasn't going to die at any minute. Dr. Parentis stole

that chance from him because, again, he refused to

communicate.

So what was the effect of Dr. Parentis's

Summation - Mr. Black. 78

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negligence on Don? Well, we know if he hadn't

performed surgery, Don would still have his leg.

When you heard the testimony about how he

systematically was cutting off pieces of Don's body,

didn't you want to scream, stop? If you don't know

what's wrong, get some help. For the love of God, stop

recommending surgery to this guy.

And once he amputated his leg, didn't you want to

scream, tell him about the pathology results. It never

happened.

And the effect of Dr. Parentis's negligence is

that Don's and Kathy's lives were ruined. A healthy

young guy with two legs has been left with one. As Dr.

Parentis told you at one time, the first time he

testified, God gave us two legs. But he took one of

Don's. And you've heard, and I think you've seen, Don

has not coped well with the loss of his leg. He's lost

the enjoyment of his life. And so that's going to take

us to stage two, the real stage two, which is the

damages in this case.

What' f? 'the truth about Don' s damages?' Well,' I

think you found out pretty quickly that in presenting

the witnesses to you, I must have provided the most

unbiased witnesses that you'd swear they were

testifying here for the defense attorneys, right?

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Summation - Mr. Black 79Let's start with Dr. Shefrin. Were we all shocked tolearn that a 40-year-old guy who had lost his leg aftersuffering a broken ankle was suffering from anxiety anddepression and anger? And that he needed some

counseling and some medication? I have to say, I waskind of shocked that Mr. Miller thought he should put

him through all these tests to try and find out if he

really is depressed. I mean, was that an exercise

designed to find out the truth? And I'll simply ask

you folks, do you think it was truthful testimony thatDon has suffered from and will suffer from depressionin the future?

So that takes us to Dr. Pawlowski. Obviously, hedidn't have much of a role in treating Don's injuries.Dr. Parentis didn't make him part of the team. His job

is simply to prescribe Don's medications, and he toldyou about that. And he told you about the variousneeds that Don's going to have for the rest of hislife, and how often he'll have to see him.

You heard from Dr. Baumgarden about the physicaltherapy Don's had to undergo to use his prosthetic leg,and about the therapy he'll need in the future.

You heard from Mr. Catipovic, about the various

needs for an amputee that probably none of us ever knewabout. How ungodly expensive the legs are, right?


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And finally, you heard from Mr. Hogenkarnp, the

city treasurer of Tonawanda, about what Don earned and

what he was expected to earn if he remained with the

City of Tonawanda.

So, folks, what you're going to have to do is

you're going to have to fill out a verdict sheet and

the amounts that you award for each category. And so

the first thing you're going to have to fill out is --

it's not actually the first thing. I'm going to talk

to you about the economic losses before I talk to you

about the pain and suffering. So the first thing

you're going to have to fill out on the one sheet is

what are Don's past economic losses. And you'll

remember Dr. Reiber explained this to you, the first

couple of years Don had no lost wages. And actually

what he did is he subtracted out the pension which

actually made the number a little bit lower. But what

we're going to ask you to put in there is $205,989 for

past lost wages and fringe benefits. And you'll

remember in the lost wages, I didn't put anything in

~h'ere for, you know, the pay vacation or the buy ,out

when you retire. It's just straight lost wages.

Now, once you do the past losses, you're going to

have to then do the future losses. And I've got to

tell you, when doctor -- I'm sorry, when Mr. Rick was


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testifying, I was almost a little bit embarrassed, you

know, one wheelchair for the next 33 years? One power

scooter for the next 33 years? Two visits with the

primary care physician who just said he needs four.

Counseling for three years when the counselor said for

the rest of his life. I mean, there's conservative and

then there's that. But there's a phrase I like to use

all the time, it's called, it is what it is. And so

those are the numbers that we're going to ask you for.

And as you may recall, we then had Dr. Reiber go ahead

and plug in the inflation at the lower rates. And so

I'm going to put this sheet back up in front of you,

and I'm going to tell you, this is a little bit

different than what your verdict sheet is going to look

like.

So the first category that you're going to have to

answer on your verdict sheet is what we call medical

care routine, which includes the primary care

physician, and you remember that Dr. Reiber explained

even though the second category says plastic su~geon,

that's n~t.r~ally right. It's any doctor other than

the primary care. And then the psychologist, again,

just for three years. And so under routine medical

care, if my math is correct, we're going to ask you to

award $34,434.


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Under hospitalizations, we're going to ask you to

award 82,779.

Under diagnostic studies, $16,896.

Under medications -- now, again, this doesn't

include I'm sorry, I chopped that off on you folks.

Here we go. Under medications, this doesn't include

the diet medication that we talked about, but the total

of that is $200,235.

Under prosthetic needs, again, this is the leg and

the -- I'm sorry, the leg and the maintenance and

repair, $955,105.

Medical supplies, the total is $240,866.

Medical equipment, that one scooter a year, but we

get four batteries, one time for the power lift for the

van, no physical therapy, instead we're going to buy

one piece of exercise equipment, one wheelchair, but we

get six cushions, and so the total for that, for

medical equipment, is $14,917.

Home renovations, 17,175.

Equipmen~ maintenance and repair, that's how we're" ,going to ge't by .with one of these, 20,142.

And then finally the household services which

Dan's paying right now through his co-op, but as

doctor -- or as Mr. Rick explained as he gets older,

he's going to need a little bit more help. So the

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Summation - Mr. Black

total for household services, $167,718.

At the same time, there's also going to be future

lost wages. And, again, as Dr. Reiber explained, we

stopped at age 62 rather than 65 or something else, and

so the total amount we're going to ask for future lost

wages and loss of pension benefits is 143,000 -- I'm

sorry, $1,431,127.

And, folks, I don't think there's any dispute on

any of those numbers. So that takes care of what I

call the easy part of the case.

But by far the most difficult part for you folks

is how much to award Don for his past and future pain

and suffering and loss of enjoyment of life and the

psychological injury he suffered.

There's not enough money in the world to bring

back his leg. And there's not enough money in the

world to bring back his life. There's not enough money

in the world to bring back the Don that existed before

this happened. What we're going to ask you to do,

though, is to award him fair and adequate compensation

for what he's gone through over ,the last 9 plus years,

and what he will go through for the next 33 years.

You heard about the pain that he experienced

during this treatment, taking the I.V. pole to work,

hospitalization after hospitalization. During one of


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those hospitalizations, Dr. Cumbo talked about it, he's

in so much pain he's arching his back so they had to

put him in a semi coma to try and help the pain.

Taking the antibiotic that made him so sick. But how

about, even worse, looking down at your foot and seeing

one toe gone, now the rest of the toe, now part of the

next one, now the next toe. And then looking down and

seeing my leg gone below the knee, then above the knee,

and then that horrible scar to try and fit the leg into

the prosthetic device, seeing that every day.

The humiliation and pain of falling over and over

again, when you're trying to use a prosthetic device.

Being in public and having people make comments. How

about getting your wheelchair stuck out in the snow and

having .to have people push you out. Having to have

your wife and your young son spend all their time

caring for you? Instead of being the breadwinner and

part of his family team, being the anchor that's around

all their necks? I can't imagine what he went through.

And worse yet, look at the toll it took on his

family. For over eight years Kathy's life became

taking care of Don. The entire family's life revolved

around doctors' appointments. Remember what Dr.

Parentis said? Almost every visit Kathy was there with

him. Their entire life, around the time of the leg


1 amputation, revolved around whether Don -- whether Don2 was going to live or die, because of what Dr. Parentis3 told him. Obviously, their vacations were ruined.

4 Just going outside of the house became a chore. And

5 Don became more and more depressed and irritable and

6 anxious. And it put a huge strain on his relationship

7 with his wife and his son; and unfortunately became too

8 much, and Kathy and he got divorced. I don't think9 we're surprised. But it means he's now all alone. He

10 lost his best friend and his wife, his caretaker. And

11 for the next 33 years, he'll have to bear all that12 weight on his shoulders.alone.

13 And what does he have to look forward to? He's a14 fighter. So he's going to continue to try and be able15 to use his prosthetic leg better. He's going to keep

16 going to counseling and hope that helps. And he's17 going to try and get out and play sled hockey. But his18 life is always going to revolve around the loss of his19 leg. Every morning when he gets up, and every night20 when he goes to bed, he'll constantly be reminded of

21 .what he no~ has due to Dr. Stoeckl and Dr..Parentis's

22 negligence. Every time he gets a phantom pain episode,23 that shooting excruciating pain, he'll be reminded,24 this never had to happen. And every day for the rest

25 of his life will be a reminder of what he lost -- his


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leg, his wife, and every dream he ever had for his

life. How do I put a dollar figure on that? I can't.

I'm allowed to suggest a figure to you. I can

suggest that an award of 2 million dollars for his past

pain and suffering and 6 million for his future pain

and suffering would be fair. And half of you might

think, that's too much; and half of you might think,

Jesus, that's nowhere near enough for what he's gone

through. But you have the final say, and I want you to

understand that, it's your decision. If the award you

give is not enough to pay for his future stuff, he

can't come back in front of another jury and ask for

more money. This is it. And your decision will stay

with him for the rest of his life.

Now, you're also going to have to decide how much

to award Kathy for what we call her loss of services

claim, which is basically the effect Dan's injuries had

on her and what she had to do to care for Don. And she

really lost nine years of her life. Again, every

moment ?eca~e taking care of Don, and it just became

too much for her. She lost, like she told you, not

only her husband, but her high school sweetheart and

her best friend. And I'm not going to suggest a number

to you but I'm going to leave that to you to decide.

So that takes me to the end. And I was teasing

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Colloquy

defense counsel on our break, that they kind of stole

my normal speech, because what I say is every day I

have to carry in that big briefcase with stuff, and

every night I get to take it back and get rid of some

of it. And what always goes through my mind is, each

time a witness takes the stand, each time a piece of

evidence goes into court, the weight comes off me and

step by step goes on you folks. And at this stage,

it's all your decision. Don has waited for years for

justice in this matter. Every day and every night for

the rest of his life he's going to remember what

happened in this courtroom. He has waited for the

truth to finally be told in a courtroom. And I think

it has. And he knows that when he hears your verdict,.

he's finally going to get the justice he deserves. And

whenever he passes by this courthouse he'll know, this

is where justice is served and the truth is told. I

thank you very much.

THE COURT: Jurors, you've now heard all the

closing arguments .. The.next step, as I've told you, is

the instructions on t.helaw from.me. I.'mpretty much

ready to go, but I think it's probably a good idea to

take about a five-minute recess. If you need more than

that, obviously, we're going to give it to you. But

give me five minutes or so to help me get set up and

Documents

Summation - Pltf - New York Injury Cases Blog · guess what? It helped a little bit. But, again, I don't know what was going on in Dr. Stoeckl's life, because he moves on to surgery