Case details

Plaintiff required only a toe fusion, not an arthroplasty: defense





Result type

Not present

left big toe
On Feb. 3, 2012, plaintiff Andrew Buckley, 21, a college student, was operating a motorcycle on San Tomas Expressway, in San Jose, when he was struck by a vehicle operated by Doris Sybrian. Buckley claimed to his left foot. Buckley sued Sybrian, alleging that Sybrian was negligent in the operation of her vehicle. Specifically, Buckley claimed that Sybrian changed lanes directly in front of his motorcycle, causing the collision. Defense counsel noted that because Sybrian suffers from dementia, the defense conceded liability and Sybrian did not participate at trial., Buckley fractured the interphalangeal joint in his left big toe. Following the collision, he drove himself to an urgent care center, where he was examined and released the same day. Buckley then had two subsequent visits to Palo Alto Medical Foundation and was examined by a podiatrist who determined that Buckley sustained an interphalangeal joint fracture in his left, great toe. The podiatrist advised Buckley to wait to see how the toe healed to determine whether the pain would resolve on its own because the only other option for treatment was surgery. Buckley claimed that within three months of the injury, he was able to return to his physical activities, which included rock climbing, hiking, and jogging. However, he alleged that, over time, the toe became more painful, resulting in him wanting to have surgery to eliminate the pain. As a result, the podiatrist recommended a fusion of the toe joint, but Buckley had hoped to maintain motion in the joint, so he got a second opinion from an expert podiatrist, Dr. Nguyen Ky. The plaintiff’s expert podiatrist provided Buckley with three surgical options, including a fusion, an arthroplasty, and/or an implant. The plaintiff’s life care planner priced the arthroplasty at $24,433.89, the joint replacement at $47,880.64, and the great toe fusion at $13,693.57. Buckley chose the arthroplasty and had it scheduled for the end of June 2014. However, he ultimately did not undergo the surgery. Thus, Buckley sought recovery of $480 in past medical bills for the six times he saw a physician from the time of the collision up until the time of trial. He also sought recovery of $68 in lost income for the one day of missed work, as a salesperson, following the collision. In addition, Buckley sought unspecified amounts for his future medical expenses and future loss of income, as well as sought recovery of damages for his past and future pain and suffering. Defense counsel did not dispute causation, but argued that only a tiny fraction of individuals with the injury that Buckley had ever underwent surgery. In addition, defense counsel argued that if Buckley ever did undergo surgery, he should undergo the fusion surgery, as opposed to the arthroplasty. The defense’s expert podiatrist testified that he could do the fusion surgery for a global cost of $5,000. Thus, defense counsel asked the jury to award Buckley only $27,823 in total damages.
Superior Court of Santa Clara County, Santa Clara, CA

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