TT&H Attorney Burke McLemore Wins Amputation Case Based on “Refusal of Reasonable Medical Care” Defense

TT&H attorney Burke McLemore prevailed in a case where Claimant was seeking medical benefits and ongoing wage loss related to a below-the-knee amputation. After a serious leg fracture, Claimant was counseled by numerous physicians to stop smoking. When Claimant failed to stop smoking, Claimant’s leg injury deteriorated, ultimately resulting in the amputation. Burke successfully argued that the amputation was causally related to Claimant’s failure to stop smoking, and not the initial accident.

Claimant testified that she had actually quit smoking. In response, Burke’s “smoking gun” was video surveillance of Claimant chain smoking over the course of several hours. By successfully defending the claim, Burke saved the carrier the cost of the amputation and subsequent medical treatment, as well as up to 375 weeks of future indemnity.

This is the first known case in which failure to cease smoking was successfully used as a theory to defeat a claim using the “refusal of reasonable medical care” defense.

Questions about this case can be submitted to Burke McLemore at bmclemore@tthlaw.com or 717-255-7647.