In this action, a 53 year old Plaintiff alleged that he fell on Defendant Hospital’s property due a patch of ice and snow on its sidewalk two days after a blizzard.
After the fall the plaintiff presented to an orthopedic surgeon for right elbow pain. Ten years before the fall, the plaintiff had a right elbow replacement. During his initial consultation it was discovered that the hardware in his right elbow had come loose. Accordingly, surgery was performed to: remove the prior right elbow implant and perform irrigation and debridement. The plaintiff remained hospitalized for five days following the surgery. Three months later, the plaintiff underwent a second surgery to his right elbow, consisting of a revision right elbow arthroplasty, repair of nonunited olecranon fracture and radical excision and contracture release of postsurgical heterotopic ossification. Due to ongoing infections, the plaintiff had to have a third surgery to have his elbow implant removed and spacers placed into his arm while he treated an infection. The plaintiff then had a forth surgery to again place the elbow implant back into his arm. The plaintiff, who had accumulated $37,889.09 in healthcare liens, had demanded $325,000 to resolve the claim.
Mr. Petka successfully defended the case on liability. Although this was an unwitnessed and unreported fall, at his deposition the plaintiff testified he was certain of the date of the fall because he got a parking ticket within an hour of the incident. Mr. Petka subpoenaed the records and discovered that the parking ticket was issued 20 days before the plaintiff alleged to have fallen. Mr. Petka then obtained weather records for the date of that the ticket was issued and discovered that it was 54 degrees out at the time and that the temperature did not drop below freezing in the days preceding it. Accordingly, there could not have been any ice or snow on this particular date. This information, combined with the other inconsistencies, cast doubt that the incident ever occurred and prevented the plaintiff from meeting his burden of proof.
