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

Plaintiff v. Defendant Surgeon


Defendant Surgeon


Verdict for the defense


Donohue Brown Mathewson and Smyth’s Stetson F. Atwood successfully defended a surgeon against a claim of deviating from post-operative standard of care.

The plaintiff was a 36-year-old male with a history of right ankle sprains from playing soccer. In May 2012, the defendant surgeon performed an outpatient surgical procedure on the plaintiff’s tendon to stabilize his ankle.  Postoperatively, the plaintiff developed a dehiscence of the surgical incision site, which healed by October 2012.

In December 2012, the plaintiff presented with new complaints of pain in his ankle, and the defendant surgeon ordered an MRI. Over the next three months, the plaintiff’s ankle pain continued to worsen, and the defendant strongly recommended the plaintiff obtain an MRI. The plaintiff returned to the defendant’s office a number of times through February 2013, but did not obtain the MRI until March 2013.

The MRI showed an infectious process in the plaintiff’s ankle. In April 2013, the plaintiff went to a local hospital for treatment. The doctor at this hospital continued to treat the wound as a bacterial infection. In July 2013, the wound had not yet healed. At that time, the infectious disease physicians at the hospital suspected a fungal infection.  After daily infusion therapy for 12 months, the infection healed. As a result of the fungal infection, the plaintiff suffered bone loss in his subtalar joint, requiring a bone graft. Eventually, the plaintiff underwent a subtalar joint fusion, limiting his range of motion in his ankle.

The plaintiff asked for $5.1 million, claiming the defendant surgeon caused a permanent disability after failing to diagnose the fungal infection. The plaintiff claimed damages for pain and suffering, loss of a normal life, increased risk of future harm, and medical expenses.

The defense showed that had there been a fungal infection in February 2013, the last time the defendant surgeon examined the plaintiff, the wound at the surgical site would have presented much differently and would not have shown signs of healing.

The trial lasted two weeks, and the jury returned a verdict for the defense in less than five hours.