Lawyers at DBMS successfully litigate a wide variety of civil cases and argue appeals in some of the most challenging jurisdictions in the country.

Professional Liability

Maks v. Defendant Orthopedic Surgeon


Defendant Orthopedic Surgeon


Defense verdict


On August 13, 2007, plaintiff injured his right ankle in a fall off a ladder. He was transported to the hospital, where he was diagnosed with a right calcaneal fracture and admitted.  The on-call defendant orthopedic surgeon who saw plaintiff that evening documented swelling of the right calcaneus and ordered a CT scan to determine if open reduction internal fixation surgery would be necessary.

On August 14, 2007, the CT scan of plaintiff’s right foot was performed.  The radiology report documented a comminuted fracture of the calcaneus with minimal displacement.  Based on the degree of swelling and the minimally displaced fracture, defendant Orthopedic Surgeon made the decision to recommend non-operative conservative management, not open reduction internal fixation surgery.  Plaintiff was discharged with instructions to remain non-weight bearing and to follow-up in the hospital’s ambulatory care clinic.

Plaintiff returned to the ambulatory care clinic on several dates through December 2007.  At one point, it was determined that plaintiff had been non-compliant, and was bearing weight on the right ankle against medical advice.

In January 2008, plaintiff transferred care to a second hospital, complaining of ongoing and worsening right ankle pain.  He was diagnosed with a more significantly displaced right calcaneal fracture.  He eventually underwent arthrodesis of the right subtalar joint.  Plaintiff claimed ongoing and permanent right ankle pain and reduced range of motion.

The plaintiff alleged that defendant Orthopedic Surgeon deviated from the standard of care by failing to perform open reduction internal fixation surgery of plaintiff’s displaced calcaneal fracture.  Plaintiff argued that the surgery should have been performed as soon as the swelling allowed, within days to weeks of the injury.

The defense argued that defendant Orthopedic Surgeon’s care and treatment of plaintiff was appropriate and in compliance with the standard of care in all respects.  At no time was plaintiff an appropriate candidate for open reduction internal fixation surgery.  First, the radiographic appearance of the fracture did not show a significant articular displacement.  Second, the evidence indicated that plaintiff had ongoing significant swelling that was an independent contra-indication to surgery.  Therefore, the risk/benefit analysis did not favor surgery.  It would not have been appropriate to subject plaintiff to the significant risks of surgery with the hope of making only minimal improvement in the alignment of his fractures.  The subsequent interval change in the level of displacement was secondary to plaintiff’s non-compliance and weight bearing.