Everyone knows you can get injured when you get into a motor vehicle, operate dangerous equipment, or climb up on a scaffold at a work site. The risk of a serious physical trauma (impact) is inherent in all those activities. I have represented countless victims of such accidents.
But sometimes big injuries can also result from small traumas. For example, I once had a client who suffered a serious injury when one of those drive-thru bank teller windows closed on her hand as she was reaching in for her money. The glass window closed on her hand fairly slowly, and only bruised her hand. But the bank customer later developed a very serious injury known as RSD (Reflex Sympathetic Dystrophy), also known as complex regional pain syndrome, a rare disorder of the sympathetic nervous system characterized by chronic, severe, permanent pain.
Who would have thought that such a minor trauma could cause such a serious condition? Even so, under principles of New York injury law, if we could prove that the bank teller negligently closed the window on my client’s hand, my client was entitled to full compensation for her RSD.
I recently read about another small trauma that caused a disproportionate injury. According to a newspaper article, a woman in New Orleans entered a nail salon to get her toe nails clipped. She warned the professional nail clipper that she suffered from diabetes. (Diabetic foot infection is one and the most frequent causes of lower extremity amputation and therefore you need to be careful when working with a sharp instrument near a diabetic’s foot.)
Following an apparently uneventful clipping session, the woman’s foot began to hurt, even though she did not notice any bleeding or see any evidence that her skin had been pierced. Eventually the pain got so bad she turned herself into an emergency room.
Turns out a flesh-eating bacteria had infected her foot and was literally eating it up. Eventually she had to have her leg amputated up to the knee. (On the positive side, this cut her future toe-nail-clipping costs in half).
Wow. I haven’t been able to get my hands – or eyes – on the Complaint she filed, so I don’t know the exact negligence the plaintiff is claiming. But I assume she is claiming that the nail clipper must have nicked or cut her skin, and that the clipper must not have been properly sterilized, thus causing the infection.
Honestly, it seems like a very tough case. It would be a different story if the clipper had gouged out a chunk of her foot. Or at least drawn blood. But an invisible nick of some kind? How negligent could the clipper have been if the most serious wound she inflicted was invisible? And how do you prove there was any lesion at all?
The plaintiff’s lawyer must be relying on a “the-proof-is-in-the-pudding” argument, which lawyers call “res ipsa loquitur“. The argument goes like this: “Ladies and gentlemen of the jury, the only thing that explains this infection is that the nail clipper must have been dirty and must have wounded the foot, thus, the defendant is doubly negligent, once for failing to properly sterilize, and then again for clumsy clipping”.
I am glad some other lawyer will be making that argument and not me.
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Syracuse NY Personal Injury Lawyers
Michaels & Smolak, P.C.