Plaintiff was a man in his mid-seventies who injured his back when he fell off of a ladder. Although he fractured a thoracic vertebrae in the fall, the fracture went undiagnosed for four months, despite the fact that plaintiff was in hospitals or nursing homes for almost that entire time period and was seen by dozens of physicians. As a result of the failure to diagnose the fracture, plaintiff developed spinal cord compression which necessitated an operation and left plaintiff with a compromised ability to walk and with a lifetime of pain.
Defendants claimed that the misconduct of the doctors and nursing homes did not meet the minimum elder abuse requirements under the law and that at most, this was a case of medical negligence and the result should be limited to the $250,000 cap on pain and suffering damages in medical malpractice cases in California. Further, defendants claimed that this was not even negligence because there was no reason for the doctors to suspect a thoracic fracture when all of plaintiff’s symptoms were low-back and not in the mid-back thoracic region.
The law offices of Winer, McKenna & Burritt, LLP, was able to put forward novel elder abuse theories and won a motion to be able to plead punitive damages against the nursing home. After this motion was granted, and after advancing approximately $150,000 of case costs for expert witnesses and investigation, the case was able to be settled.
RESULT: $829,000 settlement on behalf of plaintiff