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

Szerbinski v. Defendant Orthopedic Surgeon


Defendant Orthopedic Surgeon


Defense Verdict


On January 8, 1998, plaintiff underwent a total knee arthroplasty performed by the defendant orthopedic surgeon. Plaintiff’s past medical history was significant for diabetes and a prior high tibial osteotomy to the same knee. As a result, he was at an elevated risk for slow wound healing and infection.

Plaintiff’s incision site continued to drain until early February 1998. At that time, the incision closed and healed with the exception of an approximately one-inch eschar at the distal end of the incision. From February 1998 through May 1998, plaintiff gradually improved, in that his pain level decreased and his range of motion improved. However, the eschar remained.

On June 1, 1998, plaintiff developed an acute infection in the knee, leading to eight additional surgeries. The additional surgeries included multiple debridements, hardware removal, a muscle flap and ultimately fusion of the knee joint.

Plaintiff alleged that the defendant was negligent in failing to close the incision site completely at any point between the date of surgery and June 1, 1998. According to plaintiff, the closure could have been done by removing the eschar and either approximating the skin or consulting a plastic surgeon for consideration of a muscle flap.

Plaintiff’s argued that, had the defendant done so, the infection would not have developed, the total knee arthroplasty would have been a complete success and the subsequent medical care, including hardware removal and fusion, would not have been necessary.

The defense argued that the defendant acted appropriately in conservatively managing the incision site post-operatively. Specifically, the incision, including the eschar, was gradually improving and, as a result, it would have been poor medical judgment to surgically remove the eschar and attempt to close the skin with additional surgery, which may not have been successful.

The defense further argued that the sole proximate cause of plaintiff’s infection and subsequent course was an incident in which he soaked the incision site while working in or around his pool the weekend before the infection, as documented in the defendant’s office chart.

The jury returned a defense verdict in less than one hour.