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• 18 May ' 07:31

  Fractured Jaw Pain and Suffering Verdict Reduced after Appeal to $175,000

  Posted on May 18, 2011 by

  Ricky Love used to hang out at a Brooklyn nightclub known as Rockwell's and went there with friends at 2 a.m. on January 29, 2006.  I doubt he'll be returning. He ended up in an altercation and sustained a fractured jaw.

  Here's Rockwell's, where it all began:

  

  At Rockwell's, Ricky and a friend went to smoke a cigarette in an outside alleyway when he got into an argument with another customer about a spilled drink. A bouncer interceded and ejected Love from the premises.

  Love claimed that the bouncer, without any provocation, repeatedly struck him in the face and banged his head against the wall causing his jaw to fracture.

  Ricky sued Rockwell's and in 2009 a Kings County jury awarded him $250,000 for his three years of pain and suffering (he made no claim for future damages).

  Now, in Love v. Rockwell's International Enterprises, LLC, (2d Dept. 2011), the appellate court has ordered a reduction of the pain and suffering verdict to $175,000.

  We usually mean the mandible when referring to the jaw. It's U-shaped and stretches from ear to ear and is joined to the upper part of the head by two temporo-mandibular joints:

  

  The bouncer was never identified and did not testify. In fact, the defendant argued on appeal that the case should have been dismissed because all of its bouncers were independent contractors - not employees - and plaintiff could only prevail against the club itself if he could prove the bouncer was an employee. This issue, though, was not raised at or before trial so the appellate court ruled it was waived.

  In reducing plaintiff's jury verdict by $75,000, the appellate judges mentioned that this is a jaw fracture case but that's all they said as to the injury details:

  • displaced mandible fracture requiring ORIF surgery to implant a metal plate and screws
  • four day hospital admission
  • jaw wired shut for six weeks
  • at time of trial, jaw still numb and sensitive to hot and cold, and plaintiff had difficulty eating

  There's no explanation of why the judges reduced Mr. Love's jury award but there is a citation to one case that is relevant. In that case,  Atkinson v. Buch (1st Dept. 2005), a dentist mistakenly fractured his patient's jaw during a tooth extraction procedure. He wired it shut immediately (while the patient was still under local anesthesia) but for the ensuing wight weeks Atkinson was in pain, didn't work and could only eat through a straw. The jury awarded $15,000 for pain and suffering ($10,000 past - 3 1/2 years, $5,000 future - 1 year); however, the appellate court increased the award to $80,000 ($75,000 past, $5,000 future).

  Here are two other jaw fracture appellate cases that rule on pain and suffering damages:

  • Barnes v. Paulin (2d Dept. 2010) - $200,000 ($100,000 past - 3 years, $100,000 future - 25 years) for a 19 year old in a car crash who sustained a mandible fracture and a nerve injury, underwent surgery to implant a plate and screws and whose jaw was wired shut for seven weeks. We discussed this case in detail, here.
  • Kennedy v. City of Yonkers (2d Dept. 1999) - $100,000 reduced from $190,000 (all past - 3 years) for a 15 year old boy with a double mandible fracture whose jaw was wired shut for seven weeks and who at trial still had popping and clicking in his jaw.

  • Counsel for Rockwell's argued in summation that the incident never happened and implored the jurors that even if they found his client liable then plaintiff's injuries were so minimal that there should be no award at all for any pain and suffering.
  • Counsel for Love asked the jury to award $300,000 all for past pain and suffering  (conceding that his client hadn't complained about pain since the surgery).
  • The evening began at a private party at an apartment around 10:30 p.m. where Love admitted he "probably took an [ecstasy] pill." He arrived at Rockwell's around 2 a.m., got a drink, went to the bathroom and then for a smoke in the alley where he claimed the bouncer broke his jaw.

  Facial InjuriesJawMandibleTemporo-Mandibular Joints

  • Fractured Jaw Pain and Suffering Verdict Reduced after Appeal to $175,000

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• 11 May ' 08:09

  Teenager's $350,000 Pain and Suffering Verdict Upheld in Minimally Invasive Back Surgery Case

  Posted on May 7, 2011 by

  On September 7, 2005, Courtney Graves was on the Franklin Avenue shuttle train heading to orientation before the start of her sophomore year at Sheepshead Bay High School in Brooklyn. She never made it; instead ending up at the hospital after the train derailed and she was slammed against he window sustaining injuries to her back and shoulder.

  Here's where Courtney was headed:

  

  The train operator admitted liability for the accident but the amount of damages could not be agreed upon so a trial was held in 2009 in Graves v. New York City Transit Authority (Supreme Court, Kings County; Index # 11185/06).

  After hearing testimony from orthopedic surgeons for both sides, as well as from Courtney and her mother,  the jury awarded pain and suffering damages in the sum of $350,000 ($200,000 past - 4 years, $100,000 future - 5 years).

  Plaintiff's pain and suffering award has now been affirmed in Graves v. New York City Tr. Auth. (2d Dept. 2011), a decision that failed to reveal any of the injuries.

  Here are the details of the injuries Courtney sustained:

  • herniated disc at L5-S1 with radicular symptoms of nerve injuries
  • glenoid labrum tear in right shoulder
  • trigger point injections
  • hydrodiscectomy

  Hydrodiscectomy is a minimally invasive, same-day procedure that uses a high-speed water stream to remove herniated discs. Using a fluoroscope to project live x-ray pictures onto a monitor, the surgeon places a high velocity fluidjet instrument within the spinal disc without using a large incision (and usually under local anesthesia).

  

  Previously very fit and a member of her school's basketball and track teams, Courtney was unable at all to resume any sporting activities.

  Courtney missed school for a few days just after the accident and almost two months in March and April 2007 at the time of her surgery. Unfortunately, her back and shoulder pain remained. While Courtney graduated high school on time in June 2008, she was unable to continue her nursing school education (she was unable to sit for long periods) and took a leave of absence in June 2009.

  Courtney's doctor testified that her injuries are permanent and may require two surgeries:

  1. a lumbar discectomy
  2. surgery to repair the labral tear.

  labrum is a soft ring of cartilage surrounding the shoulder socket (the glenoid) and it acts as an anchor to hold the bones together in the joint.

  

  • defense doctor stated that plaintiff had undergone an ill-advised overly conservative course of physical therapy that thwarted her recovery. He also was of the opinion that Courtney won't need any more surgery.
  • In closing, defense counsel acknowledged the defendant's responsibility for the accident but stated that "the results were not entirely significant" and asked the jury for a total pain and suffering award of $50,000.

  Back InjuriesDiscectomyHydrodiscectomyLabrum

  Rotator Cuff Tear Surgery after Traumatic Shoulder Dislocation Leads to $100,000 Pain and Suffering Award on Appeal

  Posted on April 30, 2011 by

  In 2009, a Manhattan jury awarded 54 year old plumber Bill Bouzas $10,000 for his pain and suffering (past - 2 years, future - zero) after a slip and fall accident left him with a dislocated shoulder and rotator cuff tear surgery

  Shoulder dislocation:

  

  Rotator cuff tears can be degenerative and caused by repetitive rubbing of bone spurs:

  

  We discussed the Bouzas case, , and as we predicted, the trial judge's refusal to modify the verdict upward was appealed.

  Last week, in Bouzas v. Kosher Deluxe Restaurant (1st Dept. 2011), the $10,000 award was deemed inadequate and the appellate judges:

  1. ordered an increase to $100,000 for past pain and suffering and
  2. affirmed the jury's refusal to make any award  for future pain and suffering

  issues on appeal were not uncommon - to what extent a plaintiff may recover pain and suffering damages when there's evidence that he:

  • previously injured the same body part (here, the shoulder) or
  • had pre-existing significant degenerative changes in the area.

  There was no question that Bouzas's  shoulder was dislocated in the fall. Shoulder dislocations are very painful and they must be reduced (put back into place), often, as here with a very painful manipulative procedure.

  

  defense contended that the medical evidence showed the rotator cuff tear pre-existed the fall, was due to degenerative disease of the joint and was not related to the slip and fall trauma. Excerpts from the medical testimony (treating orthopedic surgeon Mark Klion, M.D. and the defense expert Jerry Lubliner, M.D.) are included in the defendant's brief on appeal, here.

  Plaintiff testified that he had no prior shoulder problems or limitations whatsoever but that since the accident he can't lift his arm straight up, doesn't have nearly the strength he used to and is significantly restricted in his job - especially so as to the overhead work often required in plumbing. The jury, though, was evidently persuaded by plaintiff's own surgeon's records which showed that he already had "extensive degenerative changes" in his rotator cuff.

  The appellate court cited two cases as to damages.

  1. (1st Dept. 2009) - a 49 year old man's $5,000 pain and suffering award (all past - 4 years) was ordered increased to (all past) after a car accident and torn rotator cuff surgery. The defense argued and the court noted that the jury was entitled to decline to make an award of future damages in view of the testimony of the  defense biomechanical engineering expert that it was unlikely plaintiff struck his shoulder on the steering wheel in the accident.
  2. Miller v. Tacopina (1st Dept. 2006) - a 27 year old man's $10,000 pain and suffering award ($5,000 past, $5,000 future) was ordered increased to $80,000 ($40,000 past, $40,000 future) after a car accident left him with a mild separation of the acromioclavicular joint in his shoulder that did not require surgery.

  • Defense counsel stated in his summation: "At absolute best, this is a pre-existing injury. It was aggravated, okay." Plaintiff argued on appeal, unsuccessfully, that this was a major concession that required an award for future pain and suffering. The defense position was that it was responsible only for the dislocation, which had been fixed and from which plaintiff had recovered, and there were no continuing or future damages.
  • New York law is clear that one may recover damages for any increased disability or pain from an accident that aggravated a pre-existing condition and judges routinely instruct juries to this effect along the lines of Pattern Jury Instruction 2:282.
  • Plaintiff consulted with an orthopedic surgeon, Robert Marx, M.D., prior to the one who operated on him. Dr. Marx, not called to testify at trial, confirmed in his report that an MRI showed plaintiff sustained in the fall an "acute-on-chronic massive full thickness tear of the rotator cuff.
  • There was no claim for lost earnings in this case.

  Acromioclavicular JointDegenerativeDislocation

  Multimillion Dollar Verdict Affirmed on Appeal for Man who Fell and was Run Over by Subway Train

  Posted on April 28, 2011 by

  James Sanders abused alcohol and heroin and he ended up in jail for a year. As a condition of his parole, he was placed in a methadone program at Kings County Hospital. At about 10 a.m. on December 12, 2002, the 41 year old Sanders went to his methadone clinic, got "medicated" and as he left he ran into an old friend with whom he drank five ounces of pure rum

  Methadone plus rum, a bad combination:

      

  Sanders then went to the subway station to go home but at about 11 a.m. he fell onto the tracks and was run over, sustaining horrendous injuries.

  We discussed the ensuing lawsuit and many of the injury details, here, and we predicted an appeal would follow the jury's verdict (a) that the subway motorman was 70% at fault and Sanders 30% and (b) awarding Sanders $6,000,000 for his pain and suffering damages (after apportionment).

  In a stunning victory for the plaintiff in Sanders v. New York City Transit Authority (2d Dept. 2011), the appellate court hasnow affirmed the verdict in its entirety - both as to the liability split and the reasonableness of the damages awarded.

  Affirming $8,550,000 for pain and suffering (before apportionment for comparative fault) was not the stunning part of this decision. After all, plaintiff sustained the following injuries:

  • below-the-knee amputation of his right leg
  • total blindness of one eye (resulting from trauma to his sixth cranial nerve)
  • loss of much of the big toe on his left leg
  • chronic phantom pain and pain where his prosthesis meets his stump
  • fractures of facial bones and his mandible (jaw) with chronic facial and mouth pain
  • severed right ear that had to be sewn back onto his face
  • head injury with piece of skull removed and post-traumatic seizures requiring anti-seizure medication Depakote

  Man learning to walk again with a below-the-knee prosthesis:

  

  The court did not cite any prior cases to support its affirmance on damages; however there are two cases that are quite relevant as to the amount of pain and suffering damages:

  1. Firmes v. Chase Manhattan Automotive Finance Corp. (2d Dept. 2008), previously discussed by us, - $5,000,000 reduced from $7,400,000 for a 23 year old who sustained a below-the-knee amputation in a motor vehicle accident, underwent 11 surgeries and was unable to use a prosthesis
  2. Villaseca v. City of New York (1st. Dept. 2008),  previously discussed by us, here - $5,000,000 reduced from $8,000,000 for a 50 year old blinded in one eye who had pre-existing macular degeneration in the other eye, thus leaving him with almost no vision at all

  The big battle in this case - both at trial and on appeal - was over liability. Plaintiff contended that he fell when the train was hundreds of feet away. Defendant argued that plaintiff fell in front of a train that was no more than 20 feet away. The parties (and their engineering experts) agreed that a subway motorman will not be liable and an accident is unavoidable when a person falls onto the tracks only 20 feet away from a train moving as slow as 15 m.p.h (as here); however there was also agreement that there would be liability, and an accident would be avoidable, where a person falls onto the tracks when a train at 15 m.p.h. is 100 or more feet away.

  Conceding the mathematics of perception and stopping time, plaintiff's trial attorney, the noted Gary Pillersdorf, boldly stated in his opening statement: "But if in fact my client fell when the train was 20 feet away, I apologize for wasting your time."

  So the big issue to be determined at trial was how far away the train was when Sanders fell onto the tracks. And that's where things got very heated at trial and on appeal.

  Defense counsel argued that Sanders was not telling the truth, "he's lying to you from start to finish" and that there could be no basis for finding the motorman at fault in view of the following evidence:

  • the motorman swore at trial that plaintiff fell when the train was no more than 20 feet away
  • a disinterested witness stated the train was 10-12 feet away, but certainly no more than 30-40 feet
  • plaintiff stated at a pre-trial deposition that he had no idea where the train was when he fell ("I don't remember where the train was when I fell.")

  Plaintiff's counsel contended that:

  • Sanders testified at trial that just before he fell he looked and the train was not yet in the station
  • the disinterested witness was not credible and not disclosed until until the middle of trial although he gave a statement to defendant's investigators four days after the accident

  • Defense counsel argued that the case should have been dismissed because before trial plaintiff submitted a sham affidavit stating the train was hundreds of feet away when he fell. The affidavit was brought to plaintiff one night by a law firm employee who told him that unless he signed it his case would be dismissed. It contradicted plaintiff's deposition testimony (that he had no idea where the train was) and the defense argued the affidavit was feigned, especially so because at trial plaintiff admitted he'd never read it before signing. The appellate court rejected this argument simply stating that there was no conflict between plaintiff's affidavit and his deposition testimony.
  • Plaintiff testified at trial that he recovered memory of the accident as a result of attending group therapy sessions.
  • Plaintiff's engineering expert, Nicholas Bellizzi, testified that the subway car should have come equipped with a black-box-data recorder and that the defense hid crucial information pointing to liability by failing to produce the recorder. The defense argued that there was no such evidence and that this claim was an improper diversion.
  • Plaintiff at first denied drinking rum but in view of toxicology evidence to the contrary, he admitted drinking in a car with his friend just before the accident (and just after drinking methadone too). Toxicology experts at trial agreed that Sanders was impaired (though not intoxicated).

  Below the Knee AmputationBlindnessSeizures

  Six Broken Ribs from Fall on Bus Results in $600,000 Pain and Suffering Verdict Affirmed on Appeal

  Posted on April 17, 2011 by

  Gerald Phillipps was 84 years old on January 17, 2007 when he took a city bus down Fifth Avenue in Manhattan. As the bus came to his stop and he stood up to leave, the bus suddenly lurched forward and Mr. Phillipps was thrown onto his back on the floor of the bus, sustaining fractures of his fourth through ninth ribs.

  Fractured ribs are typically among the most painful traumatic injuries but they usually heal well without operative intervention:

  

  Unfortunately for Mr. Phillipps, his ribs did not heal well. In his ensuing lawsuit against the bus line, a Manhattan jury found that the city bus driver was negligent and that Phillipps was entitled to a pain and suffering award of $600,000 ($300,000 past - 3 years, $300,000 future - 4.8 years).

  The transit authority argued that the accident described by Mr. Phillipps simply did not take place. There were several facts to support the defense:

  • no one reported the accident until two months later
  • after he was helped up from the floor of the bus Mr. Phillipps walked out on his own and went to his intended destination where he stayed for a short while and then called a cab to go to the emergency room at NYU Medial Center
  • Phillipps used a cane to walk for years before the accident, due to an old hip fracture that left one leg shorter than the other and, for many years, he had been on medication to prevent low blood pressure (which can cause dizziness and falls)
  • plaintiff produced no eyewitnesses and he didn't even know which bus he was on or what the driver looked like (having said nothing to the driver after the fall)

  Apparently thinking that it would cast plaintiff in a bad light, defense counsel also noted where Mr. Phillipps went when he left the bus - a strip club known as Rick's Cabaret:

  

  defense argued that plaintiff had a weak case:

  1. on liability (there was no corroborating witness) and
  2. on damages (arguing that plaintiff had other, more serious, pre-existing injuries and in any event healed well from the rib fractures)

  As to the strip club, plaintiff's counsel countered that his client was a lonely widower seeking companionship who testified honestly and that this issue is "entirely irrelevant ... unless you want to punish him for immorality."

  Clearly, the six-woman jury believed plaintiff's version of the accident and was not disturbed about his intended destination. Their $600,000 verdict for the plaintiff has now been upheld on appealPhillipps v. New York City Transit Authority (1st Dept. 2011); however the court's decision left out any mention at all of the injuries.

  Our research team has uncovered the injury details

  • hospital admission for the ensuing seven days with extensive narcotic medication, including Oxycontin, that continued for nine months until discontinued in favor of four times a day Excedrin and nightly sleeping pills
  • apical pneumothorax (punctured lung) with pleural effusion (fluid in the lungs)
  • bedridden for one month at home with 24-hour nursing care
  • displaced rib fractures that failed to fully heal (i.e., they were not in anatomic alignment) or did so only with deformities (i.e., with scar or fibrous tissue, not bone)
  • shortness of breath and pain on deep breathing or coughing
  • spasms in the rhomboid muscles that were objectively diagnosed, are permanent and cause constant pain

  

  Plaintiff testified credibly that, before the accident, he had been able to walk, stand and take the bus without difficulty and he often did so attending social functions throughout the city.

  Now, though, as a result of his injuries and constant pain he

  • needs a four-wheeled walker for support (rather than just a cane)
  • is unable to sit or stand for lengthy periods
  • is unable to walk distances he used to
  • has breathlessness and wheezing he never had before
  • can no longer climb in and out of his bathtub and showers sitting on a bench
  • spends most of his time at home lying down in bed with a special wedge pillow

   Inside Information:

  • defense never made an offer to settle despite the fact that, as insiders tell me, this case could have been settled before trial for about $100,000.
  • During the trial, defense counsel requested that the case be postponed because an orthopedist he had planned to call as an expert, Serge Parisien, M.D., had fallen and injured his back and was thus unavailable for seven weeks. The judge denied the request and the only orthopedist to testify was plaintiff's expert, William Kulak, M.D., who opined that plaintiff's pain and limitations are permanent and will not improve (transcript here).
  • The NYU Medical Center records were in evidence but defense counsel argued that the jury should not see the entries that recorded what plaintiff stated when he arrived at the hospital  regarding the mechanism of his injury - that when he stood up to get off the bus at his stop he fell on his back secondary to the unsteadiness of the bus. Both the trial judge and the appellate panel rejected this defense argument and ruled that the entries were relevant to diagnosis and treatment and properly viewed by the jurors.
  • Mr. Phillipps is a Holocaust survivor whose history was recently recorded for posterity, as discussed here

  In view of the absence of witnesses and what appeared to be relatively insignificant injuries, the result in this case was not predictable. Add to that an earlier motion and appeal regarding the sufficiency of the notice of claim (a pre-lawsuit filing required in cases again municipalities), credit should be given to plaintiff's counsel, Alan M. Greenberg, a well known and widely respected advocate, another of whose prior cases with an outstanding result we discussed,

  PneumothoraxRhomboid MusclesRib InjuriesSpasms

  Spinal Cord Injury Leads to $3,500,000 Pain and Suffering Award by Appellate Court

  Posted on April 8, 2011 by

  Ray Hammond was 42 years old on February 4, 2004 when he was walking his six year old daughter home from school at about 2:45 p.m. As they crossed a street in in Queens, he was holding her hand when he wasstruck by a left turning car

  

  Mr. Hammond was thrown in the air, landed on the hood of the car, smashed against the windshield and ended up at Jamaica Hospital Medical Center where he was admitted and confined for three and a half months.

  In an ensuing lawsuit, the driver was found fully at fault for the accident and the jury then awarded Hammond pain and suffering damages in the sum of $4,000,000 ($2,000,000 past - 4 years, $2,000,000 future - 40 years).

  On appeal, the defendant argued that the pain and suffering award was excessive. The appellate court agreed, in part. In Hammond v. Diaz (2d Dept. 2011), the $2,000,000 verdict for 40 years of future pain and suffering has been ruled excessive and therefore reduced by $500,000 (the $2,000,000 for past damages was affirmed). The total pain and suffering award thus now stands at $3,500,000.

  The jury made a loss of consortium award to plaintiff's wife in the sum of $1,000,000; however, the appellate court found this excessive too and ordered a reduction to $200,000 ($100,000 past, $100,000 future).

  Unfortunately, the court's decision reveals nothing at all about Mr. Hammond's physical injuries in this case (except to state that Mr. Hammond was hospitalized for 3 1/2 months and then treated as an inpatient at a rehabilitation hospital for an additional month).

  Essentially, Mr. Hammond sustained spinal cord contusions near C-4that left him with permanent hemiplegia (paralysis of muscles on one side of the body).

  

  consequences of plaintiff's hemiplegia:

  • footdrop with permanent limp and need to use a foot brace
  • dominant right hand and arm weakness, with muscle atrophy and and the inability to clench

  Typical drop foot brace:

  

  While in the hospital, Mr. Hammond's left lung became infected from septic shock and he was required to undergo a lobectomy, in which the lower lobe of one lung was removed.

  Previously a self-employed optician, Hammond was unable to work at all for two years. He then found a job in a friend's practice for two days a week but testified at trial that he remains unable to grip anything with his right hand, suffers from muscle spasms several times every day and fatigues quickly while in constant pain all over his right side.

  Mr. Hammond's other activities remain severely limited in that he can no longer:

  • swim (he'd been an expert)
  • run
  • walk long distances or
  • play with his daughter, except in very minimal ways

  defense argued for a reduction in damages because plaintiff's condition had significantly improved from the time of his initial hospitalization (when he was unable to move of his limbs) to the time of trial (when he could walk,  perform many activities of daily living and took yoga classes three days a week).

  • Two doctors testified: Ahmed Elfiky, M.D., a neurologist for the plaintiff (transcript here) and Edward Toriello, M.D., an orthopedic surgeon for the defense (transcript here). The defense has plaintiff examined by its own neurologist before trial but that doctor did not testify and plaintiff was granted a so-called missing witness charge.
  • closing arguments, plaintiff's attorney asked the jury to award pain and suffering damages in the sum of $5,000,000 ($2,000,000 past, $3,000,000 future) while defense counsel refrained from suggesting a figure.

  Foot DropHemiplegia

  Anna Gloria Rivera was born in 1988 and within three months she was diagnosed with  (a chronic inflammatory disease of the airways).  with  to alleviate her symptoms but from time to time suffered from asthma attacks that would sometimes end up with emergency room treatment before she'd be released back to her home, school and an otherwise normal life of a young kid.

  

  In the early morning hours of December 21, 1998, though,  and was rushed by ambulance to a city hospital, Woodhull Medical and Mental Health Center.

  After four hours and forty-five minutes of frantic treatment, during which she was restrained to a hospital bed,  due to  

  In the ensuing lawsuit ,  (Supreme Court, Kings County; Index # 6288/00), the hospital and its doctors and technicians were found to have committed malpractice because they:

  The jury awarded pre-death pain and suffering damages in the sum of  based on evidence that during the 4 3/4 hours that Anna was being worked on at the hospital she endured excruciating pain and panic, especially as 

  Here is an 

  The  on appeal in  (2d Dept. 2011).

  The appellate court decision failed to mention any of the underlying facts as to Anna's pain and suffering. Nor did the court compare this award with similar cases.

  During the terrible final few hours of Anna Rivera's life, she suffered enormous physical pain and terror from:

  • unrelenting pain while  and struggling to survive;
  •  at not being allowed the presence of and comfort from her parents
  • panic and fear from being  to the bed without the paralytic and sedatives
  •  from the endotracheal tube while having to endure the invasive intubation procedures three times without anesthetics, sedatives and muscle relaxants
  •  from fighting and bucking against the endotracheal tube 

  Here are the  in arguing, successfully, that the $3,500,000 pain and suffering verdict is reasonable and should not be modified downward:

  •  (1st Dept. 2003) -  for pre-impact terror and other injuries in shooting of a hostage who died  later
  •  (2d Dept. 2007) -  for pain during  of consciousness after car accident
  •  (2d Dept. 2002) -  for  of conscious pain from multiple fractures and internal injuries in car accident before death on the operating table 35 minutes later

  •  The appellate court also ruled that . Even though Anna died at the age of 10 years, her mother should have been permitted to present to the jury her claim for lost future potential economic support. The court cited  (Court of Appeals 1980) in which  in pecuniary damages was affirmed in the case of a 12 year old boy's death. In , there was evidence that Anna was quite accomplished academically and helped out around the house with chores and the like.  While an 

  • Rib Injuries

  • Teenager's $350,000 Pain and Suffering Verdict Upheld in Minimally Invasive Back Surgery Case
  • Rotator Cuff Tear Surgery after Traumatic Shoulder Dislocation Leads to $100,000 Pain and Suffering Award on Appeal
  • Multimillion Dollar Verdict Affirmed on Appeal for Man who Fell and was Run Over by Subway Train
  • Six Broken Ribs from Fall on Bus Results in $600,000 Pain and Suffering Verdict Affirmed on Appeal
  • Spinal Cord Injury Leads to $3,500,000 Pain and Suffering Award by Appellate Court

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• 30 Mar ' 09:54

  Police Officer's Hand and Wrist Injury Result in $500,000 Pain and Suffering Verdict Affirmed on Appeal

  Posted on March 29, 2011 by John Hochfelder

  On October 9, 2005, Michael Nutley, a 35 year old New York City police officer on duty, slipped and fell on a New York City Transit Authority subway stairway at the 111th Street and Greenwood Avenue station in Queens.

  

  Officer Nutley injured his dominant right hand and wrist  and sued the NYCTA claiming that the sixth step of the stairway was cracked and missing concrete and that this defective step caused him to fall and injure himself. The jury substantially agreed  finding that the defendant was 90% at fault (and that Nutley bore 10% of the responsibility for the accident and his injuries).

  A trial on damages then ensued. After hearing testimony from plaintiff and medical experts for both sides, the jury awarded pain and suffering damages in the sum of $500,000 ($300,000 past - 3 years, $200,000 future - 30 years) and that award has now been affirmed on appeal in Nutley v. New York City Tr. Auth. (2d Dept. 2010).

  The appellate court decision gives little information as to the injuries in this case other than to state that:

  1. the injury was to plaintiff's dominant hand and wrist, "required surgery," and
  2. "plaintiff  continued to experience pain, numbness, tingling, loss of strength and loss of motion in his wrist and hand."

  Here are the missing injury details:

  • post-traumatic carpal tunnel syndrome, right wrist flexor tenosynovitis (an inflammation of the tendon and tendon sheath) requiring
  • right carpal tunnel release surgery, right wrist flexor tenosynovectomy

  

  During carpal tunnel surgery, a cut is made in the palm and the transverse carpal ligament is divided so that the size of the  narrow tunnel-like structure in the wrist (formed by the carpal bones and ligament) is increased and the pressure on the nerve is decreased:

   

  Officer Nutley was unable to work after the surgery for about five months and then returned first on a light duty basis for two months and thereafter without restrictions. Nonetheless, he had pain and disabilities continuing through trial, even worsening of his pre-surgical symptoms, including:

  • pain
  • diminished grip strength
  • numbness and tingling
  • burning sensation

  Inside Information:

  • Plaintiff was examined by an orthopedic surgeon for the defense, Raz Winiarsky, M.D., who testified that plaintiff fully recovered and was not at all disabled. Plaintiff's attorney attempted to discredit the doctor's testimony pointing out that he testified often for defendants (and particularly this defendant), suggesting that he routinely found that claimants were all better and referring to plaintiff's testimony that the exam lasted only two minutes.
  • Plaintiff's expert, Louis C. Rose, M.D., previously a hand surgeon for the NYPD, testified that when he examined plaintiff almost two years after the accident plaintiff had significantly decreased ranges of motion, positive findings on both Tinel's test and Phelen's test and reduced grip strength. He opined that a second surgery would be the only way to address these injuries but it has a high rate of failure and therefore it's likely Nutley is permanently disabled. The defense pointed out that Dr. Rose saw plaintiff only once and that plaintiff's treating surgeon did not testify.
  • Plaintiff's credibility was seriously attacked in view of his August 23, 2007 application to be a volunteer first responder to any future terrorist attacks in New York City. In the application, Nutley stated had no weakness in his hands. He testified that he understood the purpose of the application was to determine if he could carry and wear the extensive equipment required of a first responder and he thought he could do so and that had he stated otherwise he would not have been approved for the program.
  • Plaintiff's counsel asked the jury for pain and suffering damages of $1,060,000 ($300,000 past, $760,000 future). Defense counsel did not suggest any figures.

   

   

  Tags: Carpal Tunnel Syndrome, Hand Injuries, Tenosynovitis, Wrist Injuries

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  Latest Trimalleolar Ankle Fracture Case - $625,000 Pain and Suffering Verdict Affirmed

  Posted on March 22, 2011 by

  Meghan Hopkins, a 22 year old graphic designer from Ohio, was visiting her boyfriend in New York City on July 31, 2006  when she tripped and fell on a defective walkway at the 14th Street subway station.

  Meghan sustained a severe ankle fracture and sued the New York City Transit Authority claiming that the walkway was defective and unsafe (the concrete floor was cracked and raised) and that the defendant should have repaired it before the accident. On September 10, 2009, a Manhattan jury  found the defendant 100% at fault.

  The jury then assessed plaintiff's pain and suffering damages and awarded her $625,000 ($350,000 past - 3 years, $275,000 future - 55 years).

  In Hopkins v. New York City Tr. Auth. (1st Dept. 2011) the entire $625,000 award has been upheld by the appellate court which rejected the defense claim that the award was excessive.

  As noted in the court's decision, plaintiff sustained a trimalleolar fracture and had to undergo two surgeries:

  1. an open reduction internal fixation (ORIF) with two metal plates, two long pins and eight screws to secure the plates
  2. removal of the hardware almost three years later

  Ms. Hopkins testified that she continued to have trouble with stairs, lifting heavy objects and driving, has pain if she walks too much and can no longer run or engage in any sports.

  Plaintiff's treating orthopedic surgeon testified that three years post-accident she already had signs of early post-traumatic arthritis and that her prognosis is poor. It's likely, he said, that Meghan will develop arthritis and then she'll need more surgery (such as an ankle fusion).  

  

  The main case cited by the court in Hopkins is Ruiz v. Hart Elm Corp. (2d Dept. 2007), in which $900,000 was affirmed for a 22 year old woman with severe bimalleolar fractures and obliterated ligaments resulting in three surgeries (ORIF and two hardware removals) and the inability to upwardly flex her foot because her tibia and fibula were fusing together. That case appears to have involved significantly more serious injuries than those sustained by Meghan Hopkins

  Nor are any of the other three cases cited by the court in Hopkins very relevant:

  1. Colon v. New York Eye Surgery Assoc. (1st Dept. 2010), previously analyzed by us, - $950,000 affirmed for a 49 year old woman with an avulsion fracture of her tibia without surgery but with RSD.
  2. Rydell v. Pan Am Equities (1st Dept. 1999) - $500,000 affirmed for a woman with a severely fractured ankle with ORIF, hardware removal and symptoms of the onset of arthritis. This seems at first glance quite relevant but it's more than 10 years old and there is no readily available information about the age of the plaintiff or the precise nature of her fracture.
  3. So v. Wing Tat Realty (1st Dept 1999) - $600,000 affirmed for a 25 year old woman with an ankle fracture, torn ligament, ORIF, hardware removal and traumatic arthritis. Again, this case is more than 10 years old and there's no information provided about the nature of plaintiff's fracture.

  evaluation of trimalleolar fracture pain and suffering cases has come before our appellate courts with some frequency and we've discussed them before, for example, .

  The award of $625,000 for Ms. Hopkins appears to be at the higher end of typical trimalleolar cases resolved on appeal in view of the following recent decisions

  • Ryals v. New York City Tr. Auth. (1st Dept. 2010) - $400,000 affirmed for a 37 year old in a case sent back for a retrial on liability apportionment [previously discussed by us, here]
  • Fishbane v. Chelsea Hall, LLC$550,000 reduced from $800,000 for a 69 year old man [previously discussed by us, here]
  • Downes v. City of Mt. Vernon (2d Dept. 2009) - $288,000 affirmed for a 66 year old woman [previously discussed by us, here]

  • The defense did not call any medical witness to controvert plaintiff's treating surgeon's trial testimony.
  • There was evidence brought out by the defense on cross-examination that plaintiff had a pre-existing rheumatoid arthritis condition but her treating surgeon did not consider it significant because it involved the autoimmune system and Meghan's arthritis was post-traumatic.

  

   

  Ankle InjuriesBimalleolar FractureORIFPost-Traumatic ArthritisRheumatoid ArthritisTrimalleolar Fracture

  $4,700,000 Affirmed as Reasonable for Pain and Suffering in Neck and Back Injury Slip and Fall Case

  Posted on March 14, 2011 by John Hochfelder

  On September 21, 1998,at about 12:30 p.m., Shelton Stewart took the subway train from his job in Manhattan to his home in the Bronx. He got out at the Gun Hill Station and began walking down the subway stairwaysto the street.

  Stewart slipped and fell on what he later claimed was pigeon excrement.

  Pigeons are often seen on and around stairways at the city's subway stations:

  

  Stewart, then 47 years old, was rushed to Jacobi Medical Center where he was diagnosed with a cervical contusion and admitted for one month of treatment. He ended up with several spinal surgeries and claimed permanent and total disability from the fall.

  Stewart sued the city's transit authority charging it was negligent in allowing the stairway to remain slippery, especially so because this (the pigeon droppings) was a a recurring condition. The defendant vigorously denied liability and argued that plaintiff alone was responsible for his fall.

  On December 19, 2007, after many years of contentious litigation, in Stewart v. New York City Transit Authority (Index # 13911/99; Supreme Court, Bronx County), a jury ruled that both the city and the plaintiff were negligent (the defendant 80%, plaintiff 20%).

  The jury set Mr. Stewart's pain and suffering damages at$4,700,000 ($2,000,000 past - 10 years, $2,700,000 future - 20 years). That amount, along with loss of earnings and medical expense damages, was subject to a 20% reduction for plaintiff's comparative fault.

  The transit authority appealed claiming that there was no way any liability at all should have been assessed against it and, alternatively, that the damage awards were unreasonably excessive and should be reduced.

  Last week,  in Stewart v. New York City Transit Authority (1st Dept. 2011), the appellate court affirmed the $4,700,000 assessment for pain and suffering damages.

  The court decision sets forth the basics and here are the details of plaintiff's injuries:

  • cervical spine compression fractures and contusions at C4-C5
  • posterior cervical decompression and laminectomy at C3-C7
  • thoracic spine compression fractures at T11-T12
  • fusion surgery at C4-C5 with implantation of hardware, plates and screws
  • post-operative Methicillin-resistant Staphylococcus aureus (MRSA) infection requiring debridement surgery
  • lumbar spine herniated discs requiring lumbar laminectomies and posterior spinal fusion at L3-L5 with six large pedicle screws and plates and an iliac crest bone graft

  Lumbar fusion surgery with pedicle screws and bone graft:

  

  Even after all of the surgeries, extensive physical therapy and several epidural steroid injections and nerve blocks, Mr. Stewart remained in great pain and his back muscles were spastic. Ultimately, to pump anti-spasm medication on a continuous basis, his doctors prescribed and surgically implanted a synchronized baclofen pump:

  

   At trial, plaintiff testified that he was still very much disabled from the accident:

  • needs a walker to ambulate
  • has spasms in his spine after sitting too long
  • has difficulty sleeping, bathing and dressing himself
  • was unable to return to his job (as a doorman) nor even an easier pizza deliveryman job that he tried

  Plaintiff's medical expert testified that, due to the accident, Mr. Stewart is permanently and totally disabled.

  As to damages, the defense focused upon a prior injury. In June of 1997 (a little more than a year before the accident), Mr. Stewart underwent surgery to remove two herniated cervical discs. Plaintiff admitted that before the subject accident he had some difficulty walking dues to weakness in his legs for which he occasionally used a leg brace and a cane until a few months before the fall.

  Mr. Stewart had been working without any disability at the time of his fall and his medical expert opined that whatever his prior conditions were, the subway stairs fall was "the straw that broke the camel's back," caused the need for both spinal fusions and the baclofen pump and left him totally and permanently disabled.

  • The defense expert, orthopedic surgeon Phillip Keats, M.D., admitted that he hadn't practiced medicine in seven years, made over $1,000,000 a year from litigation (almost exclusively working for defendants) and 25% of his court appearances were for the New York City Transit Authority.
  • Several trial rulings went against the defendant including the limiting of evidence of plaintiff's prior injury to the damages part of the trial (not allowing it to be presented in the liability portion as a cause of the fall) and precluding undisclosed until trial witnesses (city employees who would have stated the stairway was clean and plaintiff said he fell because he missed a step).
  • As a result of his doorman and porter jobs, Stewart claimed he'd become a bit of a self-taught expert on pigeon excrement, having seen and cleaned a considerable amount over the years. He was allowed to testify as to color and texture differences between newly deposited and older droppings and what the defendant should and could have done to rid the area of pigeons.
  • Plaintiff's attorney was Bob Genis, of Sonin & Genis, well known among New York's trial lawyers as an expert on evidence law (which clearly was a factor in his superb achievements in this case).

   

   

  Tags: Back InjuriesBone, Cervical Fusion Laminectomy , Grafts", Lumbar Fusion, MRSA, Neck Injuries

  Neck Injury and RSD from Electrical Shock - $2,500 Pain and Suffering Verdict Affirmed on Appeal

  Posted on March 8, 2011 by John Hochfelder

  On December 13, 1999, then 40 year old Terry Olmstead was  employed as a shift manager by Pizza Hut of America, Inc.'s franchisee in Chittenango, New York (near Syracuse). While working in the kitchen near a metal work table, Ms. Olmstead received a severe electrical shock when she touched the table surface.

  

  Treated at an urgent care center and a hospital that day and the next, Ms. Olmstead claimed that the shock caused all kinds of pain and disability, especially neck pain, and that as a result she was unable to work for the next month. She returned for three weeks but was unable to continue, left her position and then claimed permanent disability.

  Here is a portion of her Bill of Particulars in the ensuing lawsuit, Olmstead v.  Pizza Hut of America, Inc. (Supreme Court, Madison County; Index # 1930-02). Various injuries were set forth in the bill of particulars but by the time of trial the main injury claims were:

  • cervical spinal cord and nerve root sprain, strain and pain
  • complex regional pain syndrome (RSD)

  Plaintiff's attorneys had difficulty identifying the party responsible for the allegedly defective electrical installation and delayed filing suit until December 13, 2002, one day before the statute of limitations was to expire. In 2006, the electrical contractor they sued obtained an appellate court dismissal of the suit against it.

  Pizza Hut remained the only defendant but for the second time the case was delayed for several more years because Pizza Hut did not comply with court orders requiring it to disclose information and produce for deposition a witness who had knowledge of the electrical system and its installation.

  Pizza Hut could not find anyone to testify as to whether the ground fault circuit interrupter (GFCI) was defective. Modern electrical systems require GFCIs in the form of either outlets or breakers in order to protect people from electrocution.

  

  In April 2009, an appellate court upheld the trial judge's order granting plaintiff's motion to sanction Pizza Hut for its willful failure to comply with discovery demands. Thus, liability against Pizza Hut was established and the trial would address damages only.

  Finally, in August 2009, the damages only trial was held. After extensive medical testimony, including three physicians for the plaintiff and two for the defendant, the jury found that Ms. Olmstead was entitled to a mere $2,500 for her pain and suffering (all past).

  Plaintiff appealed, claiming that the damages award was grossly inadequate for a case involving complex regional pain syndrome (RSD, or reflex sympathetic dystrophy).

  RSD is a chronic, painful and progressive neurological condition that affects the skin, muscles, bones and joints. Its pathophysiology is controversial and there are no widely accepted diagnostic tests for it. Nonetheless, when jurors are convinced that a plaintiff suffers greatly from causally connected RSD, very significant pain and suffering verdicts are rendered and upheld on appeal (for example: $3,100,000 - wrist, $3,500,000 - hip and $950,000 - ankle).

  The appellate court, though, in Olmstead v. Pizza Hut of America, Inc. (3d Dept. 2011), upheld the jury's mere $2,500 pain and suffering verdict noting that:

  • there was sharply conflicting medical evidence as to the plaintiff's injury and the cause of her current complaints
  • plaintiff had significant preexisting injuries
  • plaintiff was dishonest about her prior condition and her current limitations

  There's more, a lot more, to what caused the jury to award such a small amount for pain and suffering and the appellate court to sustain it. Here are the missing details:

  1. In 1989, ten years before this incident, plaintiff sustained traumatic neck pain, headaches, face tingling and numbness and tingling in her arm when she was thrown into a swimming pool on her head. She was treated for these conditions by several doctors that year and the next.
  2. Plaintiff did not disclose details of the prior accident and treatment to her treating and testifying neurologist in this case (other than to tell him that her symptoms had not lasted very long).
  3. Six months before the current accident, plaintiff treated with a doctor for tingling on her face for two weeks along with neck pain and headaches.
  4. At trial, plaintiff was caught in a very serious lie with respect to her bowling activities - she testified that she used to bowl before this incident but that she last bowled in December 1999 because of her new injuries. In fact, she had been bowling regularly since 2003.

   Inside Information:

  • Plaintiff's main argument on appeal was that the trial judge should not have allowed the jury to consider the defense that plaintiff's preexisting injuries were the cause of any current or future complaints of pain or disability. Plaintiff contended that the preclusion order partially striking defendant's answer barred any defense related to preexisting injuries.The bulk of plaintiff's brief on appeal was devoted to this losing position.
  • Plaintiff's main treating and testifying doctor was Pieter Kark. She treated with him from March 2000 through October 2003. By the time of trial, Dr. Kark admitted that he lost his license to practice medicine due to findings of professional misconducthere is the latest of three orders issued against Kark by the New York State Board for Professional Misconduct). Kark also admitted at the trial that he had not practiced since November 2004.

   

  Tags: Cervical Sprain, Complex Regional Pain Syndrome, Neck Injuries, RSD

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  Record Pain and Suffering Award in Leg Amputation Case

  Posted on February 20, 2011 by John Hochfelder

  This tragic amputation case was big and important at trial two years ago and now that an appeals court has weighed in, it's still big and important.

  We wrote about Gloria Aguilar's case back in 2009, . Ms. Aguilar, then a 45 year old housekeeper, had been run over by a city bus in 2005 and as a result her left leg had to be amputated above the knee.

  In April, 2009, a Manhattan jury awarded her$27,500,000, as follows:
  

  • $16,000,000 for pain and suffering
  • $9,500,000 for future medical expenses
  • $2,000,000 for her husband's loss of consortium and services 

  Gloria Aguilar with her husband and two of their three children:

  

  [Photo from New York Daily News, February 17, 2011]

  As we predicted, the $27,500,000 award has been substantially reduced on appeal. Last week, in Aguilar v. New York City Transit Authority (1st Dept. 2011), the pain and suffering award was reduced to $10,000,000 ($5,000,000 past - 3.7 years, $5,000,000 future - 32.6 years).

  Additionally, the medical expense award was reduced to $7,000,000 and Mr. Aguilar's claim was reduced to $1,500,000. The total award now stands at $18,500,000.

  Even with the appellate court reduction, the $10,000,000 pain and suffering award represents the largest ever approved by an appellate court in New York for a leg amputation.

  Some of the details of Ms. Aguilar's injuries are set forth in the appeals court decision. Here are some more:

  • her first of 10 surgeries was a below-the-knee amputation of her left leg but, two days later, due to devascularization and necrosis, doctors sawed off further portions of her leg, converting the procedure to an above-the-knee amputation
  • within the month, two more revisions of the amputation had to be performed, during each of which doctors sawed away more and more of Ms. Aguilar's left leg
  • phantom pain from the severing of the sciatic nerve in her left leg
  • her right leg sustained a degloving injury in the area of her heel requiring several irrigation and debridement procedures under general anesthesia and leaving her permanently unable to control her ankle or support her right leg, essentially wheelchair bound and unable to care for her own hygenic needs
  • her post-traumatic stress disorder and severe depression, with recurrent nightmares and sleep disorders, were described in detail by an expert psychiatrist who testified that they are permanent and that she needs to continue in the regular care of a psychologist as she's been doing since her initial hospitalization
  • extensive medication is needed for pain and depression, including more than a dozen pills a day and a pain patch on her foot

  The defense contested liability at trial but in the appeal did not challenge the jury's finding that the bus driver was 100% at fault.

  Conceding that Ms. Aguilar's injuries were horrific and life-changing, the defendant argued on appeal that $16,000,000 for pain and suffering was excessive and, in particular, urged that the jury should not have been permitted to make awards for "mental suffering, emotional and psychological injury" in addition to awards for physical pain and suffering.

  It was indeed wrong for the trial judge to allow the jury to make separate awards for mental and physical pain and suffering. As the defense suggested, that may have resulted in a higher overall verdict than would have been reached had there properly been only one pain and suffering category.

  Defense counsel, however, did not at trial object to the separate awards for mental and physical pain and suffering and, in any event, the appellate judges found that the error was not so egregious as to require a new damages trial. They simply reduced the combined pain and suffering awards by $6,000,000 and held that $10,000,000 is a reasonable sum for all of the (mental and physical) pain and suffering in this case.

  There was very little comparable precedent discussed by the parties or cited by the court as to what would be a proper sum for pain and suffering. Bondi v. Bambrick (1st Dept. 2003) appears to be the most relevant. In that case, a $9,750,000 pain and suffering award ($2,250,000 past - 5 years, $7,500,000 future - 50 years) was upheld on appeal for a 35 year old woman in a motorcycle accident who sustained a traumatic below-the-knee amputation of her leg.

  Ms. Bondi underwent nine surgical procedures, was in constant pain for which she required many drugs and a pain patch, had pervasive scarring and suffered similar psychological trauma. Ms. Aguilar's attorney, Ben B. Rubinowitz, argued that factoring in the rise in inflation since 2003, the $9,750,000 approved in the Bondi case represents a figure today well in excess of $10,000,000. The appellate judges apparently agreed.

  Inside Information:

  • Before trial,  Ms. Aguilar was examined by experts retained by the defense in several specialties - orthopedic surgery, rehabilitation medicine, plastic and reconstructive surgery and neuropsychology; however, none of these experts were called to testify at trial.
  • Mr. Aguilar's award for loss of consortium and services, even as reduced on appeal from $2,000,000 to $1,500,000, is a record award. In this regard, the appellate decision mentions only the fact that due to the accident he and his wife have been unable to engage in marital relations. Unmentioned were numerous other facts of their daily existence such as his lifting her in and out of the wheelchair, holding her while on the toilet, and wiping, cleaning and bathing her.

   

   

   

  Tags: Amputation Injuries, Degloving Injury, Loss of Consortium Damages, Phantom Pain, Post-Traumatic Stress Disorder

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  Massive Leg Injuries Result in $11,500,000 Jury Verdict for Pain and Suffering; Recovery Reduced to $4,000,000 after Appeal and Apportionment for Comparative Liability

  Posted on February 17, 2011 by John Hochfelder

  On October 28, 2004, an 18 year old college student was  crossing 70^th Street at Eighth Avenue, in the Bay Ridge section of Brooklyn. On her way to the bank to perform an errand for her father, Walla Mohamed wound up under the front wheel of a city bus making a right turn and sustained very serious injuries.

  Another pedestrian hit by a bus:

  

  Walla sued claiming that she was in the crosswalk but the bus driver contended she was well outside the crosswalk – perhaps 20 feet beyond it – walking in between two illegally parked cars, so that he couldn’t spot her until it was too late.

  On November 19, 2007, a Kings County jury rendered a verdict in Walla’s favor and found that her pain and suffering claim warranted an award of $11,500,000; ($4,000,000 past - 3 years, $7,500,000 future - 60 years). After a 20% reduction for comparative fault, plaintiff's net award stood at $9,200,000.

  On a post-trial motion by the defense, the trial judge ruled that  the damages verdict was excessive and he slashed it to $6,000,000 ($2,000,000 past, $4,000,000 future) at which point plaintiff's net pain and suffering award stood at $4,800,000.

  The defendant appealed arguing that there should be a new trial because the trial judge erred in two ways:

  1. precluding the testimony of expert witnesses and accident reconstruction evidence and
  2. allowing evidence as to the transit authority’s internal rules barring passengers from crowding in the front of the bus (past a white line on the floor)

  The defendant also argued that the trial judge's reduction of the future pain and suffering award did not go far enough. 

  In Mohamed v. New York City Transit Authority (2d Dept. 2011), the appellate judges have now rejected the defense arguments as to the evidence issues and, accordingly, they affirmed the jury’s finding that defendant was 80% at fault.

  The appeals court also reduced the future damages verdict to $3,000,000, agreeing with the defense that the trial judge’s $3,500,000 reduction of the jury’s award for future pain and suffering was not enough.

  Walla’s total pain and suffering recovery has thus been reduced to $4,000,000  - 80% of the $5,000,000 gross award ($2,000,000 past, $3,000,000 future).

  Unfortunately, there was no mention in the appellate court decision as to the nature of the injuries other than a statement that Walla sustained “serious injuries.”  We have uncovered the facts.

  Injuries Details: When Walla was struck by the bus, it pushed or threw her several feet and one of its tires ran over her right leg.  The injuries were indeed serious – a massive degloving injury of the full length of her right leg. This was a horrendous injury in which soft tissue, down to the bones, including neurovascular bundles, were literally torn away and peeled off from her upper groin down to her mid-calf.

  Here are the other undisclosed injury facts:

  • on the street, Walla saw the entire musculature of her upper thigh exposed and was in excruciating pain as she “could literally feel [her] skin getting ripped off, [her] fat, [her] muscle”
  • when ambulance personnel arrived, they struggled to free her leg, which adhered to the surface of the roadway
  • she was taken to Lutheran Medical Center where she remained for a month and underwentthree excruciatingly painful surgical debridements
  • she was then sent to New York – Presbyterian Medical Center in Manhattan where she stayed an additional five weeks and underwent three more surgical procedures including debridements and the application of skin grafts, spending much of her time in the burn unit and tank
  • she was discharged to home in a wheelchair, unable to walk and for six months thereafter underwent extensive and painful physical therapy
  • she was confined to her home for nine months on both IV and oral narcotic pain medications
  • she missed one year of college and at the time of trial was left with exquisite pain, horrific disfigurement, a limp and parasthesia to her entire right leg with 30% reduced range of motion and the need to use a cane to walk

  

  Inside Information:

   

  Continue Reading...

  Tags: Debridement, Degloving Injury, Leg Injuries, Skin Graft

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  who stated that his diagnosis of pathological bereavement was based on his examination of Ms. Ferreira, his review of all of the medical records and on Ms. Ferreira's eight years of carrying around and displaying two photographs of her deceased daughter taken after resuscitation efforts failed. He recommended ongoing psychiatric treatment.

  Inside Information:

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  • Police Officer's Hand and Wrist Injury Result in $500,000 Pain and Suffering Verdict Affirmed on Appeal
  • Latest Trimalleolar Ankle Fracture Case - $625,000 Pain and Suffering Verdict Affirmed
  • $4,700,000 Affirmed as Reasonable for Pain and Suffering in Neck and Back Injury Slip and Fall Case
  • Neck Injury and RSD from Electrical Shock - $2,500 Pain and Suffering Verdict Affirmed on Appeal
  • Record Pain and Suffering Award in Leg Amputation Case
  • Massive Leg Injuries Result in $11,500,000 Jury Verdict for Pain and Suffering; Recovery Reduced to $4,000,000 after Appeal and Apportionment for Comparative Liability

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• 06 Feb ' 18:16

  Emotional Distress Verdict of $1,000,000 Upheld for Mother in Medical Malpractice Stillborn Case

  Posted on February 6, 2011 by

  On July 1, 1997, a 24 year old woman, pregnant at seven months with her first baby, went into precipitous labor at home. Lucia Ferreira and her husband had been excited about the birth of their first child (a girl) but tragedy was about to unfold - the baby was in a footling breech position and her head became stuck in the birth canal

  

  With no oxygen or blood able to get through the umbilical cord, the baby asphyxiated and was pronounced dead on arrival at the hospital.

  A lawsuit followed - Ferreira v. Wyckoff Heights Medical Center (Civil Court, Kings County, Index # 1449/02) - in which it was claimed that plaintiff had been improperly evaluated and treated at the Brooklyn hospital when she'd presented there several times complaining of abdominal pain (due to premature labor) the week before the stillbirth (including three times the day before without being admitted).

  Wyckoff Heights Medical Center:

  

  After a 10 day trial in November 2006, the jury found that the hospital had committed malpractice in sending Ms. Ferreira home just 24 hours before her baby's death. Plaintiff argued that the breech position should have been detected and she should have been admitted and treated for premature labor and/or a Cesarean section could have been performed to deliver a healthy baby. The jury agreed and she was awarded $1,000,000 for her emotional distress injuries (past - 8 years, future - zero).

  The defendant appealed claiming that the pain and suffering award was excessive. Now, in Ferreira v. Wyckoff Heights Medical Center (2d Dept. 2011), the appellate judges upheld the liability verdict against the defendant and sustained the propriety of $1,000,000 for pain and suffering. As to the verdict amount, they merely stated that the award "does not deviate from what would be reasonable compensation."

  We have uncovered the details as to plaintiff's pain and suffering claim:

  • pathological bereavement
  • post-traumatic stress disorder
  • significant depression

  defense argued that the award was improperly fueled by compassion and sympathy and was excessive because plaintiff:

  • never sought any mental health treatment after only a single counseling session a month after the incident, and
  • recovered, as evidenced by her successful return to full-time work in a collection agency in 2000 and the birth of a healthy child in that year

  Plaintiff countered, though, with the fact that she treated only once because she could not afford counseling fees and because she found it too painful to talk about and thereby relive the horrible event.

  She also presented expert testimony from a psychiatrist who stated that he diagnosed of pathological bereavement was based on his examination of Ms. Ferreira, his review of all of the medical records and on Ms. Ferreira's eight years of carrying around and displaying two photographs of her deceased daughter taken after resuscitation efforts failed. He recommended ongoing psychiatric treatment.

  There was no case law cited in the appellate court decision as to prior similar injuries and that's because, in stillborn cases, until 2004, damages for a mother's emotional distress  were not recoverable without an independent physical injury to the mother. The Court of Appeals, in Broadnax v. Gonzalez (2004), changed the law to allow emotional distress damages without physical injury to the mother.

  The $1,000,000 emotional distress damages award that was sustained in Ferreira v. Wyckoff Heights Medical Center is significant for two reasons:

  1. it's the first time this New York appeals court was asked to review a pain and suffering award made to a plaintiff for emotional injuries sustained as a result of a stillbirth; and,
  2. the court declined to reduce a substantial verdict in a case in which there was a paucity of objective proof of the injuries

  • Since Ms. Ferreira's case was brought before the law changed, her initial claim was for wrongful death damages (e.g., the baby's short-lived physical pain) on the theory that her baby was born alive. When she changed her theory - arguing instead that her baby was stillborn - the defense objected but to no avail.
  • In 2005, one of defendant's in-house lawyers penned a provocative article entitled, "The Medical Malpractice Crisis, Again." And one of defendant's arguments on appeal was that to permit the $1,000,000 pain and suffering award for this newly allowed emotional distress damages claim would have a materially detrimental impact on New York's health care crisis. The appellate court judges did not discuss these issues.
  • jurors found that Ms. Ferreira was negligent because she failed to seek further medical treatment after her return home from the hospital about 24 hours before the stillbirth but that they then found that her negligence was not a substantial factor in bringing about the premature delivery and death of her baby. The defense argued (unsuccessfully) that these two findings are inconsistent and require reversal of the verdict. The appellate judges rejected this argument because had plaintiff been admitted to the hospital the day before (and not sent home) the premature breech birth of the baby without medical intervention could have been prevented.
  • Both sides were represented by appellate attorneys widely regarded as among the best in New York - Arnold E. DiJoseph for the plaintiff and Mauro Lilling Naparty LLP (formerly known as Mauro, Goldberg & Lilling) for the defendant.

  AsphyxiaEmotional Distress, Post-Traumatic Stress, Psychological Damages, Stillbirth

  • Emotional Distress Verdict of $1,000,000 Upheld for Mother in Medical Malpractice Stillborn Case

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• 03 Feb ' 21:01

  $3,000,000 for 11 Months of Pre-Death Pain and Suffering Affirmed in Medical Malpractice Case

  Posted on January 30, 2011 by

  Theresa Capwell was 33 years old and in good health when she started experiencing abdominal pain. She was diagnosed with pancreatitis (an inflammation of the pancreas) and admitted to Westchester Medical Center on September 18, 2000.

  Within five days of her hospital admission, Theresa suffered acute respiratory distress and she was placed on a ventilator. On October 4th, she suffered a heart attack and brain damage from lack of oxygen (anoxic brain damage).

  

  As a result of the anoxia, she was in a persistent vegetative state from which she never recovered and Theresa Capwell died 11 months later on September 10, 2001.

  A medical malpractice lawsuit followed - Capwell v. Guneratne (Supreme Court, Westchester County, Index #14832/02) - in which plaintiffs (Theresa's husband and their three young daughters) claimed that her brain damage and death were caused by mistreatment of her pancreatitis and mismanagement of her respiratory condition.

  Essentially, plaintiffs argued that the doctors at Westchester Medical Center failed to recognize that Theresa's problems stemmed from pancreatitis. Instead, they erroneously suspected and treated her for ovarian cancer. That misdiagnosis led to a cascade of ever worsening medical problems: Theresa got sicker and sicker and ultimately suffered from life threatening respiratory distress that led to a ventilator placement, a tension pneumothorax, a heart attack and anoxic brain damage. Then, death.

  The jury returned a verdict in plaintiff's favor on December 12, 2008 finding that the hospital's malpractice had caused Theresa's injuries and they awarded $7,000,000 in damages as follows:

  • pre-death pain and suffering - $3,000,000 (11 months)
  • loss of consortium - $4,000,000 (11 months)

  The defense made a post-trial motion challenging the verdict amounts as excessive. The plaintiffs countered that they were reasonable and asserted their own challenge for the jury's failure to award any wrongful death damages (i.e., economic losses sustained by the family members due to Theresa's death, such as the value of her household services and parental guidance). In a , the judge rejected the defense claim that the pain and suffering award was excessive but agreed that the loss of consortium award was excessive and should be reduced - to .

  Also, the trial judge agreed with plaintiffs that there should be a new trial on the issue of wrongful death damages - that is, whether, in addition to causing Ms. Capwell's pre-death injuries, the malpractice also caused her death. If so, her family may be entitled to substantial additional economic damages, most significantly loss of parental guidance for the 7, 9 and 11 year old girls.

  defendant appealed. This week, in Capwell v. Muslim (the name of the case after some defendants were dismissed) (2d Dept. 2011), the appellate court affirmed the trial judge's decision.

  Plaintiffs argued, successfully, that $3,000,000 is a reasonable sum for pain and suffering in this case because, as a result of the brain damage until her death 11 months later, Theresa Capwell was:

  • confined to her bed
  • lived out her days cared for by others in every aspect of her existence
  • could not communicate with the outside world beyond facial expressions, hand squeezing, eye movements and following simple commands (like moving her feet)

  The affirmance of a $3,000,000 pre-death pain and suffering for a period of 11 months is quite significant. Generally, pain and suffering awards in brain damage cases that are sustained in excess of $1,000,000 involve much longer periods of time, such as:

  • Reed v. City of New York (1st Dept. 2003) - $5,000,000 ($2,500,000 past - 6 years, $2,500,000 future - 30 years); 43 year old; brain damage with progressive tissue loss in lobes
  • Paek v. City of New York (1st Dept. 2006) - $4,300,000 ($1,300,000 past - 6 years, $3,000,000 future - 40 years); 36 year old; traumatic brain injury with severe cognitive dysfunction
  • Weldon v. Beal (2d Dept. 2000) - $5,000,000 ($2,000,000 past - 12 years, $3,000,000 future - 15 years); 26 year old; anoxic brain damage
  • Evans v. St. Mary's Hospital ($800,000 past - 13 years, $1,000,000 future - 31 years); 28 year old; anoxic brain damage

  Plaintiffs argued that while Theresa's period of suffering was much less than those in most cases involving multi-million dollar pain and suffering awards for brain damage, the distinctive factor in this case is that the 11 month period represented the remainder of plaintiff's life. Thus, they cited Cepeda v. New York City Health and Hospitals Corp. (1st Dept. 2003) in which $750,000 was held reasonable for an infant who died 12 days after suffering severe brain damage at birth due to medical malpractice. In that case, the court found that the fact that decedent experienced pain and suffering for most of her life was a factor in assessing the pain and suffering award.

  Interestingly, neither party discussed the relevance of a recent case - Schaffer v. Batheja (2d Dept. 2010), about which we wrote in detail, here. In that case, the court approved a pre-death pain and suffering award of $2,500,000 for a woman in a coma who was only sporadically aware of her condition (she'd lapsed into a coma due to medical malpractice) for the 4 1/2 years until she died.The distinction between these two cases appears to be that the court determined that Ms. Capwell's level of awareness was much more significant than Mrs. Schaffer's.

  $1,000,000 loss of consortium award was based upon the fact that Scott and Theresa Capwell had enjoyed an idyllic 11 year marriage described by him as "the perfect life." They raised three young girls (Theresa was the homemaker, Scott the bread winner), enjoyed a very intimate relationship and were in "bliss." After the malpractice, for 11 months, their entire relationship consisted of his visiting her in the hospital, touching her face and kissing her in an effort to relax her, playing her favorite television shows and watching her deteriorate and die. The testimony in this regard was quite poignant and the appellate judges declined to disturb the trial judge's reduction of the jury award for loss of consortium from $4,000,000 to $1,000,000.

  • As to pain and suffering, the defense argued not only that $3,000,000 is excessive but also that Theresa was already suffering from numerous underlying health problems when she entered the hospital and that plaintiffs failed to prove she sustained new, different or exacerbated pain and suffering.
  • Plaintiffs' law firm, Kramer, Dillof, Livingston & Moore, is widely recognized as one of the top medical malpractice firms in the state.
  • The loss of parental guidance claims belonging to Theresa Capwell's three young daughters could add several million dollars more to the plaintiffs' recovery in this case. As much as $1,500,000 has been held reasonable by an appellate court for loss of a young child's parental guidance (Paccione v. Greenberg - 2d Dept. 1998). If the new jury in Capwell v. Muslim finds a causal connection between the malpractice and the death and determines to award parental guidance damages, the size of the awards in this case may break new ground.

   

   

   

  AnoxiaDistressLoss of Consortium DamagesLoss of Parental GuidancePancreatitisPersistent Vegetative StatePneumothoraxRespiratory, Wrongful Death

  Emotional Distress Damages for Morgue's Mishandling of Body - $400,000 Approved by Appellate Court

  Posted on January 27, 2011 by

  George Jones died on November 21, 2003 at the age of 51 years. His body was found (alone) two days later in his Bronx apartment and taken to the city's medical examiner's office (the morgue) where an autopsy determined he'd died of natural causes. His mother, Lucille Jones, was notified and two of her other children went to the morgue for the grim purpose of identifying their brother.

  

  Mrs. Jones then planned a wake and an open casket funeral for November 28th. On November 25th, though, when the funeral director showed up at the morgue to pick up the body, he was advised that the body of Mr. Jones was missing from the morgue. For more than a week, his whereabouts were unknown.

  Eventually, on December 2nd, Mrs. Jones was informed that her son had been transported out of state and buried in a potter's filed in Pennsylvania. It turned out that the morgue had negligently released the body of Mr. Jones to the wrong funeral home - one that had come to pick up the body of a different man (named Jorge Jones).

  A proper funeral for George Jones was never held. He was exhumed and returned to New York but by then his body was badly decomposed and he had to be cremated on December 8th.

  Mrs. Jones brought a lawsuit -- Jones v. City of New York (Supreme Court, Bronx County; Index # 8009/05) -- in which she claimed emotional distress damages caused by the city's wrongful interference with her right to the immediate possession of her son's body for burial and her ability to see him one last time and pay proper respect.

  Liability against the city was determined in May 2008 in a motion for summary judgment decisionand then, on February 13, 2009, after a two day trial solely on the issue of damages, the jury awarded Mrs. Jones for her emotional distress pain and suffering.

  As to her emotional distress damages, Mrs. Jones testified that:

  • she was devastated upon learning that her son's body was missing
  • the cremation of her eldest son had a profound effect upon her
  • normally a lively woman who loved to cook and play with her grandchildren, she was not herself for more than a year
  • lost more than 40 pounds

  After the trial, the defendant argued that the damages award was excessive but the trial judge issued a decision on August 24, 2009 denying the motion. An appeal followed.

  Now, in Jones v. City of New York (1st Dept. 2011), the appellate court has ruled that $800,000 is excessive and that there should be a reduction to$400,000.

  Despite the substantial reduction by the appellate court, the $400,000 award is substantial and significant:

  1. The two prior appeals court decisions cited by the court ruling on damages in similar cases could have led the judges to slash the verdict even further. In Duffy v. City of New York (1st Dept. 1991), a $1,500,000 verdict was reduced to for the negligent withholding of the news of the death of plaintiff's son for 18 months, thereby depriving plaintiff of the right to take possession of the body for a proper burial. And in Emeagwali v. Brooklyn Hospital Center (2d Dept. 2009), pain and suffering damages for parents in the sum of $1,900,000 were reduced to $350,000 where the defendant improperly disposed the remains of a stillborn fetus, thereby depriving the plaintiffs of a chance to conduct a religious burial ceremony for their child and causing them emotional distress.
  2. Plaintiff offered no medical testimony at all substantiating her claims of emotional distress. She'd neither treated with any physician or therapist nor sought counseling from, or even described the events to, her pastor with whom she was very close. In Emeagwali v. Brooklyn Hospital Center, for example, there was extensive testimony from a physician as to the mother's psychological injuries, including severe depression and inability to leave the house. The defense sought to make much of the lack of any similar corroborating testimony to support the emotional distress claims of Mrs. Jones but the jury was obviously unimpressed with that argument and convinced of the genuineness of plaintiff's claims.

  • In his closing argument, the defense attorney suggested that plaintiff was exaggerating her damages for financial gain and that plaintiff's "sadness" may be worth no money at all, just a heartfelt apology.
  • In her closing argument, plaintiff's attorney Denise M. Dunleavy took umbrage with the defense suggestion that an apology is all that's owed and advised the jurors that the verdict sheet they'd soon be handed to complete has a provision only for money damages, "the only way the city will give a heartfelt apology."

  Emotional Distress

  Pre-Death Pain and Suffering Verdict of $3,500,000 Upheld on Appeal in Death of Ten Year Old Girl

  Posted on January 25, 2011 by

  Anna Gloria Rivera was born in 1988 and within three months she was diagnosed with asthma (a chronic inflammatory disease of the airways). Growing up, she used a nebulizer with Albuterol to alleviate her symptoms but from time to time suffered from asthma attacks that would sometimes end up with emergency room treatment before she'd be released back to her home, school and an otherwise normal life of a young kid.

  

  In the early morning hours of December 21, 1998, though, Anna suffered a severe asthmatic episode and was rushed by ambulance to a city hospital, Woodhull Medical and Mental Health Center.

  

  After four hours and forty-five minutes of frantic treatment, during which she was restrained to a hospital bed, Anna's lung collapsed and she died due to  tension pneumothorax.

  In the ensuing lawsuit , Rivera v. City of New York (Supreme Court, Kings County; Index # 6288/00), the hospital and its doctors and technicians were found to have committed malpractice because they:

  • administered oxygen at an excessive rate
  • failed to manage intubation properly resulting in extubation and re-intubation
  • failed to administer sedatives and paralytics

  The jury awarded pre-death pain and suffering damages in the sum of $3,500,000 based on evidence that during the 4 3/4 hours that Anna was being worked on at the hospital she endured excruciating pain and panic, especially as she fought, her arms and legs restrained in bed, against the treatment and her breathing difficulties. 

  Here is an endotracheal tube, like the one doctors inserted into Anna's airway to try to save her:

  

  $3,500,000 verdict has now been upheld on appeal in Rivera v. City of New York (2d Dept. 2011).

  The appellate court decision failed to mention of the underlying facts as to Anna's pain and suffering. Nor did the court compare this award with similar cases.

  During the terrible final few hours of Anna Rivera's life, she suffered enormous physical pain and terror from

  • unrelenting pain while gasping for air and struggling to survive;
  • extreme fright, anxiety and confusion at not being allowed the presence of and comfort from her parents
  • panic and fear from being physically restrained to the bed without the paralytic and sedatives
  • choking and gagging from the endotracheal tube while having to endure the invasive intubation procedures three times without anesthetics, sedatives and muscle relaxants
  • severe agitation from fighting and bucking against the endotracheal tube
    

  
  Here are the cases relied upon by the plaintiff in arguing, successfully, that the $3,500,000 pain and suffering verdict is reasonable and should not be modified downward:

  • Lubecki v. City of New York (1st Dept. 2003) - $3,000,000 for pre-impact terror and other injuries in shooting of a hostage who died one hour later
  • Twersky v. Busch for pain during of consciousness after car accident
  • for of conscious pain from multiple fractures and internal injuries in car accident before death on the operating table 35 minutes later
    

  •  The appellate court also ruled that plaintiff's claim for pecuniary damages should not have been dismissed by the trial judge. Even though Anna died at the age of 10 years, her mother should have been permitted to present to the jury her claim for lost future potential economic support. The court cited Parilis v. Feinstein (Court of Appeals 1980) in which $50,000 in pecuniary damages was affirmed in the case of a 12 year old boy's death. In Rivera v. City of New York, there was evidence that Anna was quite accomplished academically and helped out around the house with chores and the like.  While an appellate court would not likely sustain much more than a low six figure verdict in this instance, plaintiff may proceed to a new trial for additional damages on this claim alone if the parties do not now settle the pecuniary damage claim.

    

  AsthmaIntubationPneumothoraxPre-Death Pain and Suffering

  Knee Injury Pain and Suffering Verdict Increased on Appeal to $1,400,000

  Posted on January 16, 2011 by

  Angelo Diaz reported to work at 5:15 a.m. on July 15, 2002 at the New York City Department of Sanitation's maintenance garage in Manhattan. The then 40 year old Diaz was going about his work for an hour or so moving trucks from the garage (like the one seen below) to the street outside when he stepped out of one of the trucks and slipped on oil or grease on the truck's interior step.

  

  Mr. Diaz twisted and banged his left ankle and knee, resulting in severe pain. He was taken to the local hospital where he was treated, diagnosed with an ankle sprain and released with a cane. His ankle got better and he returned to work within three weeks but then his knee was more painful and unstable

  Shortly thereafter, an MRI revealed a torn meniscus in his knee.

  

  Diaz never returned to work and in early 2003 started a lawsuit (Diaz v. City of New York -Supreme Court, New York County, Index #116703/03) to recover money damages for his pain and suffering, medical expenses and lost earnings.

  Trial was held over 10 days in September 2008 and the jury returned a verdict 100% in plaintiff's favor. The defendant was found negligent in that the worksite was in an unsafe condition; in particular, grease was left  inside of the truck.

  The jury then determined that plaintiff was entitled to pain and suffering damages in the sum of $950,000 ($800,000 past - 6 years, $150,000 future - 31 years). Plaintiff was also awarded significant sums for his future loss of earnings and medical expenses.

  city appealed the verdict claiming there was no basis for finding negligence. And plaintiff cross-appealed claiming that the future damages award ($150,000 for 31 years) was too low.

  Now, in Diaz v. City of New York (1st Dept. 2011), the plaintiff's position has been vindicated on both accounts. The appellate judges affirmed the liability finding and increased the future damages award to $600,000

  total pain and suffering award is now $1,400,000 (with the total verdict for all damage items adjusted to $2,672,433 considering the appellate court's modifications to the earnings and medical expenses awarded by the jury).

  The appellate court was clearly impressed by medical testimony establishing that Diaz's knee injuries are permanent, necessitated four arthroscopic partial menisectomies - surgical procedures to remove part of the torn meniscus from the knee joint - and that he will require knee replacement surgeries in the future.

  

  The fourth arthroscopic surgery involved an osteochondral transplant to the medial femoral condyle using a bone plug.
  

   

  Within two years of the accident, Diaz was declared disabled from his job by his employer. And, by the date of trial, he could still not work in a similar capacity (as a sanitation or construction worker), or do any work that required lifting, bending or squatting. His pain and knee stability were better but he still had pain every day under his patella (the kneecap) and could not play or coach baseball, ride a bicycle, or dance, all of which had previously played a big part in his life.

  Plaintiff's treating orthopedic surgeon explained to the jury how the meniscus is the shock absorber of the knee and that its removal increases the risk of further injury to the knee. He said that Diaz was already already suffering from quadriceps atrophy, patellofemoral syndrome (grinding of the kneecap against the femur) and post-traumatic arthritis and it was "highly likely" that he will require at least one partial knee replacement and two total knee replacements during his lifetime.

  • Plaintiff's trial attorney, Jonathan Michaels of Pena & Kahn, succeeded in winning just about every courtroom battle in this hotly contested case. He obtained missing witness charges, preclusion of evidence of plaintiff's prior ankle injury and permission to claim damages for clinical depression without the testimony of a mental health expert.
  • Plaintiff's third surgery, in 2007, was brought about by a new accident - his knee buckled as he stepped off a curb.
  • defense did not present any medical witnesses (relying instead merely on cross-examination of plaintiff's doctor).
  • $700,000 reduction in the future loss of earnings claim resulted from a mathematical error by the jury.
  • appellate judges cited two cases to support their ruling that $150,000 was inadequate for future pain and suffering damages - Kelly v. City (1st Dept. 2004) and Calzado v. New York City Tr. Auth.(1st Dept. 2003). In Calzado, $700,000 was affirmed for future pain and suffering over 32 years for a woman with knee ligament and meniscal tears requiring future knee replacement surgery. That case is quite relevant. In Kelly, though, $57,000 was affirmed for future pain and suffering damages for a 37 year old man with similar injuries. That case appears irrelevant. More relevant would have been a reliance upon Smith v. Manhattan and Bronx Surface Transit Op. Auth. (1st Dept. 2009) in which was affirmed for future pain and suffering over 40 years in a similar torn meniscus case (i.e., two surgeries to date and knee replacement needed in the future).

  
  

  ArthritisArthroscopic SurgeryKnee InjuriesMeniscal TearsPatellofemoral SyndromeTotal Knee Replacement

  Shoulder Injury Pain and Suffering Verdict - $250,000 Upheld after Malpractice by Attorneys

  Posted on January 12, 2011 by

  Rosalie David, a 57 year old schoolteacher, was a front seat passenger in a car driven by her husband on January 25, 2003 in Cortlandt Manor, New York. Waiting to make a left turn, their car was rear ended by a car driven by Dennis Astrologo.

  Complaining of pain in her right shoulder, Mrs. David was taken by ambulance to the local hospital where she was x-rayed (negative), treated (with a sling and pain medication) and released.

  She followed up with an orthopedic surgeon three days later and he immediately ordered an MRI which revealed a full thickness rotator cuff tear

  A week later, Mrs. David underwent surgery to repair her rotator cuff.

  

  In the meantime, on February 3, 2003, Mrs. David retained lawyers to pursue her claim for injuries arising out of the accident. They filed suit on June 9, 2003. Mistakenly, though, the lawyers filed in the wrong court - the Civil Court of the City of New York, a court in which the maximum recovery is $25,000.

  When her lawyers realized their mistake, it was too late. They sought permission from the Supreme Court to transfer the case to that court but their application was denied and that denial was upheld on appeal.

  She then engaged new counsel and successfully sued the lawyers for malpractice. In that case (David v. Mallilo & Grossman (Supreme Court, New York County, Index # 107490/06), a motion for summary judgment was granted in plaintiff's favor and upheld on appeal - it was easily determined that the law firm committed malpractice.

  A trial was then held in which, as in all attorney malpractice cases, plaintiff then had to prove that she would have won her underlying car accident lawsuit. Further, she had to prove what her financial recovery would have been.

  The liability element was easily resolved in Mrs. David's favor (this was a rear-ender car accident) but the issue of damages was hotly contested before the trial judge awarded pain and suffering damages in the sum of $250,000.

  It turns out that five days before the car accident Mrs. David bruised her right shoulder in a minor slip and fall incident and that she sought medical attention from noted orthopedic surgeon, Jacob D. Rozbruch, M.D., the day before the car accident. He diagnosed her with acute bursitis, arthritis and a possible rotator cuff tear. He injected her with lidocaine and kenalog.

  

  At trial, Dr. Rozbruch testified that it was the car accident alone that was the immediate cause of the rotator cuff tendon tear because of the significant change in her examination between her initial visit the day before the car accident and her subsequent visit a few days thereafter. He said that before the car accident Mrs. David's muscle strength was perfectly normal and that the injections had given her a good result.

  defense presented two physicians, an orthopedic surgeon (Anjani Sinha, M.D.) and a neurologist (James Liguori, M.D.), each of whom examined Mrs. David four and a half years after the accident. They testified that her right shoulder injuries pre-existed the car accident. That testimony, though, was discounted by the trial judge because it contradicted written reports they had generated shortly after their examinations in which they had stated that it could not be determined whether the torn rotator cuff was related to the accident or was pre-existing.

  The trial judge's decision to award $250,000 for pain and suffering has now been upheld on appeal in David v. Mallilo & Grossman (Appellate Term, 1st Dept. 2010). That award is within the range of recently sustained verdicts in rotator cuff surgery cases, as discussed by us most recently here

  appellate judges noted that for several months after the accident plaintiff's injuries left her:

  • restricted in bathing, dressing and household activities
  • unable to drive, type, write on the blackboard or lift boxes at school where she worked

   And Dr. Rozbruch opined that Mrs. David's shoulder injuries included:

  • continued lack of full muscle strength, possibly permanent
  • recurring subacromial bursitis and pain
  • risk of recurrent tear of the rotator cuff with repeat surgery

  • Mrs. David had been forced to accept  $25,000 to settle her Civil Court lawsuit because that's the most one may sue for in that court.
  • Pursuant to CPLR 325(d), the attorney malpractice lawsuit, commenced in Supreme Court, was tried in Civil Court but there was no limitation of monetary jurisdiction with respect to the $250,000 verdict. The parties consented to have the case tried by a judge instead of a jury.
  • Plaintiff's husband was awarded $25,000 for his loss of consortium claim.
  • In 2004, a $1,400,000 verdict was rendered against Mallilo & Grossman (in favor of another personal injury law firm) because a by-then disbarred associate had tapped into the plaintiff law firm's answering service to intercept calls from potential personal injury clients.
  • Mrs. David was represented by Philip A. Greenberg in her attorney malpractice suit. Given the result he obtained and the extensive opposition he faced at every turn, his advocacy was outstanding.

   

  ArthritisBursitisRotator Cuff Tear

  • (1)

  Ankle Fracture Pain and Suffering Verdict for $400,000 Sent Back for Retrial on Liability Apportionment Only

  Posted on January 6, 2011 by

  Leshai Ryals walked out from the rear door of a city bus on University Avenue in the Bronx on January 19, 2004 at about 11:30 a.m., took two steps in the street and then slipped on snow and ice. She broke her ankle and sued claiming that the bus driver was liable because, having failed to pull up to the bus stop (he dropped her off 10 to 15 feet from the curb), he breached his duty to provide her a reasonably safe place to disembark.

  Here's a bus letting passengers off away from the curb but without any snow or ice in the street:

  

  In Ryals v. New York City Transit Authority (Supreme Court, Bronx County, Index # 21244/04) the bus driver claimed that he could not pull up to the bus stop curb because it was blocked by an 18 wheeler milk truck whose operator was making a delivery to the C Town supermarket on the sidewalk.

  At the trial in March 2009, the supermarket manager testified that there was space in front of the stop for the bus driver to park and that his employees had shoveled a path for people to get from the curb to the street. Based on that testimony, the trial judge granted plaintiff's motion for a directed verdict on liability. She ruled that the defendant was fully liable for the accident and therefore there was no need to submit that issue to the jury.

  The only questions submitted to the jury were related to damages. They then awarded the 37 year old Ms. Ryals  pain and suffering damages in the sum of ($250,000 past - 5 years, $150,000 future - 5 years).

  The defendant appealed, arguing that the trial judge should have let the issue of liability be determined by the jury. The appellate court agreed and in Ryals v. New York City Tr. Auth. (1st Dept. 2010), the liability verdict has now been reversed and the matter remanded for a new jury trial on the issue of liability.

  In general, trial judges may grant a motion for a directed verdict only when there is no rational process that would lead the jury to find for the non-moving party. In this case, the appellate judges stated that a rational jury could have rendered a defense verdict on liability - they could have found that the bus driver dropped off his passengers at the safest location under the circumstances.

  appeals court did not disturb the $400,000 damages verdict so on retrial that figure will apply to the new liability verdict.

  The decision did not, though, mention the injuries sustained by the plaintiff so here are the details:

  • trimalleolar ankle fracture
  • open reduction surgery with internal fixation of syndesmotic screws
  • second surgery to remove the screws
  • unable to work as telecommunications provider's manager for 3 1/2 months

  The ankle joint is a hinge joint that consist of three bones: the tibia, the fibula and the talus

  1. The bottom (distal) end of the fibula forms the lateral malleolus which is the bump on the outside of the ankle.
  2. The distal end of the tibia forms the medial malleolus which is the bump on the inside of the ankle.
  3. And the posterior malleolus is the back of the tibia at the level of the ankle joint.

  When all three malleoli are broken, it's called a trimalleolar fracture

  

  The award in this case is in line with sustained awards for pain and suffering in other cases dealing with trimalleolar fractures, such as:

  • Fishbane v. Chelsea Hall, LLC (2d Dept. 2009) - $550,000 for 69 year old [reduced from $800,000 jury verdict]
  • Downes v. City of Mount Vernon (2d Dept. 2009) - $288,000 for 66 year old [discussed previously, here
  • Robles v. City of New York (2d Dept. 2006) - $700,000 for 55 year old [reduced from $1,200,000 jury verdict]
  • Sienicki v. 760 West End Avenue Owners, Inc. (1st Dept. 2005) - $250,000 [increased from $50,000 jury verdict]
  • Uriondo v. Timberline Camplands, Inc, (1st Dept. 2005) - $315,000 for 40 year old
  • Clark v. N-H Farms, Inc. (2d Dept. 2005) - $425,000 for 43 year old
  • Guttierez v. City of New York (2d Dept. 2000) - $1,000,000 for 15 year old [reduced from $3,080,000 jury verdict] 

  • In addition to the transit authority and its driver, the plaintiff originally sued the supermarket on the theory that it bore concurrent responsibility for the accident because its employees were unloading the milk truck that blocked the bus stop. The claims against the supermarket were dismissed well before trial on a motion for summary judgment.
  • There was no dispute at trial as to the general principle that city bus drivers are obligated to provide reasonably safe places for passengers to disembark. Here is PJI 2:166, the basic instruction trial judges give to jurors in such cases.

   

   

  Ankle InjuriesFibulaMalleolusOpen Reduction Internal FixationTalusTibiaTrimalleolar Fracture

  • $3,000,000 for 11 Months of Pre-Death Pain and Suffering Affirmed in Medical Malpractice Case
  • Emotional Distress Damages for Morgue's Mishandling of Body - $400,000 Approved by Appellate Court
  • Pre-Death Pain and Suffering Verdict of $3,500,000 Upheld on Appeal in Death of Ten Year Old Girl
  • Knee Injury Pain and Suffering Verdict Increased on Appeal to $1,400,000
  • Shoulder Injury Pain and Suffering Verdict - $250,000 Upheld after Malpractice by Attorneys
  • Ankle Fracture Pain and Suffering Verdict for $400,000 Sent Back for Retrial on Liability Apportionment Only

  Copyright © 2011, The Law Firm of John M. Hochfelder. All Rights Reserved.

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• 31 Dec ' 13:07

  Dental Malpractice Pain and Suffering Verdict for $450,000 Upheld on Appeal

  Posted on December 31, 2010 by

  On August 9, 2006, an electrical fire broke out destroying oral surgeon Gideon Kay's offices in a house on Utopia Parkway in Flushing, Queens.

  Here is the actual home of the dental practice as it appeared shortly after the fire:

  

  Within days, Dr. Kay sent letters to his patients advising them of the fire and that for medical reasons he had to retire immediately from the practice of dentistry.

  Linda Rizzo, a 58 year old retiree, had been undergoing four years of dental treatment with Dr. Kay for which she had paid $36,000. She, like many others, though, was literally left out in the cold because Kay claimed that the fire destroyed patient records and he could not make arrangements with another dentist for continued care.

  Claiming that Dr. Kay had inserted both upper and lower bridges that did not fitand that she'd been abandoned, Ms. Rizzo sued Dr. Kay. In the suit, Rizzo v. Kay (Supreme Court, Queens County, Index # 24608/06), plaintiff sought pain and suffering damages for permanent residual injuries of her jaw and gums.

  Kay was sued by many more patients on similar grounds and the state Office of Professional Misconduct and Discipline charged him with practicing dentistry while his ability was impaired by physical disability. Kay did not contest the charge and his application to surrender his license was granted on October 23, 2007.

  Meanwhile, Rizzo's suit proceeded and a jury verdict was rendered in May 2009. Kay was found to have departed from the accepted standards of care (in other words, he was adjudged negligent) and  Rizzo was awarded pain and suffering damages in the sum of ($300,000 past - 3 years, $150,000 future).

  The defendant appealed claiming that the jury verdict was excessive. This week, the verdict was affirmed in Rizzo v. Kay (2d Dept. 2010).

  The appellate court did not describe the injuries sustained. Here are the details:

  • 10 implant procedures and the insertion of ill-fitting bridges
  • need for 1-2 years restorative work
  • severe shooting ear pain
  • headaches
  • difficulty eating
  • TMJ disorder (pain and clicking in the temporomandibular joint)

  

  An award of $450,000 for pain and suffering damages in a dental malpractice case is significant. Here are other recent significant dental malpractice cases in which pain and suffering damages have been ruled upon by the appellate courts in New York:

  • Garber v. Lynn (1st Dept. 2010) - $150,000 for 71 year old with improper bridge that caused pain, gum swelling and need for 20 implants and 14 crowns [case discussed here]
  • Clarke v. Limone (2d Dept. 2007) - $125,000 for improperly performed root canal causing cellulitis, infection and TMJ
  • Resnick v. Linkow (1st Dept. 2006) -$400,000 for 41 year old; nerve penetrated during dental implant surgery leaving him with permanent facial numbness, a drooling sensation and itchiness. 
  • Dansby v. Trumpatori (1st Dept. 2005) - $550,000 for 48 year old; misplaced bridge caused abscesses and eye swelling, need for intravenous treatment and surgery
  • Green v. Blanket (1st Dept. 2005) - $225,000 for 60 year old; improperly performed root canal fractured linguinal root causing  pain on bite, swelling and inability to chew on one side
  • Becker v. Woods (2d Dept. 2005) - $750,000 for 41 year old with nerve damage from injection causing permanent parasthesia to side of face and scalp with tingling, twitching, numbness and low voltage electrical currents coursing through face
  • Krechmer v. Mintzer (1st Dept. 2004) - $275,000 for negligently made nightstand (a dental appliance) resulting in open bite, lisp and difficulty chewing
  • Cicalese v. Carter (2d Dept. 2004) - $105,000  for TMJ caused by dentist placing a bridge too forcefully
  • Rafaniello v. Gronowitz (App. Term 2004) - $348,000 for unneeded extraction of several teeth requiring periodontal, restorative and orthodontic treatment

  • Defendant argued that the controversial trial judge, Duane Hart (about whom we've written before, here) improperly and unfairly inserted himself into the trial by asking too many questions of witnesses and demonstrating partiality toward the plaintiff. While the appellate court rejected this argument, in light of the fact that similar conduct by Judge Hart has resulted in several reversals and the need for new trials they admonished him and basically told him to stop acting improperly.
  • Defendant claimed he had an unspecified heart problem that led to his retirement; however, no medical evidence was introduced at trial to substantiate that claim.

  Dental MalpracticeHeadachesMedical MalpracticeNerve DamageTMJ

  • Dental Malpractice Pain and Suffering Verdict for $450,000 Upheld on Appeal

  Permalink  |  View Entire Page

• 30 Dec ' 15:36

  Bus Passenger's Shoulder Injury Case Dismissed after Two Trials and Three Appeals; $450,000 Verdict Nullified

  Posted on December 28, 2010 by

  Linda Boyd got on a city bus in the Bronx on September 24, 1998. She was walking toward the back of the bus as it pulled away from the stop and lurched forward. Ms. Boyd grabbed the metal strap above her but it was defective and slid out of place causing her right shoulder to twist.

  Here is a bus driver grabbing onto typical straps, like the one Ms. Boyd grabbed:

  

  Claiming a torn rotator cuff caused by the sliding of the defective strap, Boyd sued.

  At trial in 2005, the jury in Boyd v. Manhattan Bronx Surface Transit Operating Authority (Supreme Court, Bronx County, Index # 14783/99) awarded the then 56 year old plaintiff $450,000 for her pain and suffering ($225,000 past - 7 years, $225,000 future).

  Plaintiff's injuries included:

  • rotator cuff tear
  • shoulder impingement syndrome
  • 50% permanent loss of range of motion
  • surgery - acromionectomy, coracoacromial ligament excision and repair of rotator cuff tear

  Here is some of the anatomy involved in this case:

  

  The $450,000 awarded in this case for pain and suffering for a rotator cuff tear with surgery appears to be a significant result in view of several other recent cases, such as:

  • Shifrel v. Singh (1st Dept. 2009) - $50,000 for past only for a 49 year old (jury had awarded $5,000 past and zero future); no future damages due to lack of permanency.
  • DeSimone v. Royal GM, Inc. (2d Dept. 2008) - $350,000  verdict upheld for a 30 year old who made a good recovery, was able to return to work within five months and required no further medical treatment after one year.
  • Chase v. Mullings - (1st Dept. 2002) - $190,000  verdict (amount uncontested on appeal)  for a 58 year old woman in a bus accident who sustained a partial tear in her non-dominant shoulder.

  Here is a good example of a torn rotator cuff:

  

  verdict was affirmed in 2006 but the defendant obtained permission to appeal further and in 2007 the Court of Appeals reversed and ordered a new trial holding that the trial judge should have instructed the jurors that in order to prevail in this case plaintiff needed to have shown that the defendant had either actual or constructive notice of the defective strap.

  In the second trial, the jury rendered a defense verdict on October 21, 2008 - it found that there was no prior notice because the bus driver had not negligently failed to inspect the bus before driving his route.

  Plaintiff's attorney asked the trial judge to set aside the defense verdict because, she alleged, defense counsel engaged in a litany of inappropriate behavior (e.g., asking the judge within earshot of the jury to shut plaintiff's attorney's mouth and yelling and making groundless objections during plaintiff's summation). The trial judge agreed, concluding that the jury was improperly affected by the constant and bitter rancor exhibited by (both) counsel during the course of the trial. Accordingly, the defense verdict was set aside and a new trial ordered

  In the third appeal in this case, the defense sought a reversal of the trial judge's decision and reinstatement of the defense verdict in the second trial. The appellate court has now agreed with the defense

  reversing the trial judge's order, the appeals court judges found that while there was improper conduct by defense counsel, it did not create a climate of hostility that so obscured the issues as to have rendered the trial unfair. Also, the judges noted: plaintiff's attorney failed to ask for a mistrial when the egregious behavior occurred and plaintiff's attorney herself was intemperate throughout the proceeding.

  The case is now over, finally, after more than 12 years.

  Inside Information:

  • Defense counsel disputed the causation of plaintiff's injuries in view of a slip and fall incident 4 1/2 years before this accident in which plaintiff fractured her right arm (humerus) and sustained a right shoulder sprain. Plaintiff's doctor testified that the arm fracture and shoulder sprain had healed and were unrelated to the new shoulder injuries.
  • In an unusual move, on the eve of the third trial (which did not occur because of the new appellate ruling), plaintiff's attorney asked the judge for separate trials on liability and damages. Her reason: the huge expense of paying doctors to come to court to testify (averaging about $5,000 to $15,000 per doctor). Plaintiff had already been through two trials and was reluctant to lay out thousands more before securing a liability verdict. Usually, plaintiffs want damages testimony (e.g., the treating doctor describing the surgery) heard by the jury before liability is determined so that the jurors will appreciate the seriousness of the injuries.
  • Plaintiff's attorney was Candace Pluchino while defendant's trial counsel was Edward Flores. Defendant's appellate counsel was Lawrence Heisler a widely respected and successful attorney for the New York City Transit Authority.

  AcromionHumerus FracturesImpingementRotator CuffShoulder Injuries

  Pre-Death Pain and Suffering Verdict of $3,000,000; Case Dismissed on Appeal

  Posted on December 22, 2010 by

  Tragedy struck on January 28, 2004 when four year old Nico Rivera died. He'd fallen ill on December 22nd with what appeared to be flu-like symptoms and over the next 4 1/2 weeks, his parents took him several times both to and from his pediatrician's office and the hospital. After his second seizure, Nico stopped breathing, his father resuscitated him and an ambulance returned him to the hospital but he died that day.

  Autopsies indicated that the cause of death was acutemyocarditis (an inflammation of the muscular wall of the heart).

  

  Nico's parents sued (Rivera v. Greenstein, Supreme Court, Bronx County, Index # 26799/04) claiming that the pediatrician was negligent in her failure to have ordered heart-related tests that would have discovered the cardiac involvement and that had these tests been done Nico would have received the medical care he needed to survive.

  On December 9, 2008, the Bronx County jury found that:

  • the pediatrician was negligent in failing to order a cardiac evaluation and  certain tests (a CK-MB test, an EKG and a serum troponin test) and that these failures were substantial factors in causing Nico's death
  • $3,000,000 was fair and just compensation for Nico's  4 1/2 weeks of pain and suffering

  Here is a copy of the actual verdict sheet completed by the jurors.

  defense asked the judge to dismiss the complaint notwithstanding the verdict or, alternatively, to reduce the damages award because it was excessive. In his post-trial decision, the judge determined that the liability verdict was proper; however, he opined that the $3,000,000 pain and suffering award was "a classic case of a runaway jury" and that it should be reduced to $300,000. The judge cited no cases in support of the reduction.

  On appeal this week in Rivera v. Greensteinentire case against the pediatrician has been dismissed on liability grounds. The appellate judges, in an unusually detailed opinion discussing complicated medical facts, ruled that there was no evidence that the doctor departed from accepted medical standards in failing to order the cardiac tests because:

  1. the tests she did perform and Nico's symptoms could also indicate problems with other areas of his body and
  2. all of the tests she did perform indicated a normal heart

  Additionally, as a separate basis for dismissing the case, the appellate judges found that plaintiff had failed to establish proximate cause. In medial malpractice cases, this is often referred to as the "so what" defense - meaning that even if there was mistreatment the plaintiff must link up that negligence with the claimed injury in order to win at trial

  Here, plaintiff did not present evidence as to what care Nico should have received for his presumed heart condition that would have made a difference. The failure to show what the doctor could have done to save Nico had she discovered myocarditis meant that proximate cause was lacking and the verdict could not stand.

  Here is PJI 2:70, the pattern jury instruction language New York judges use regarding the meaning of proximate cause.

  Had the liability verdict been upheld, there is little doubt but that the $3,000,000 pain and suffering verdict would have been reduced and some figure closer to the $300,000 ordered by the trial judge would have been assessed by the appellate judges. 

  Without in any way suggesting that the death of this young boy was not tragic or that he did not suffer a great deal, prior case law indicates clearly that $3,000,000 was excessive under the facts in this case in which during all or some of 4 1/2 weeks before his death, Nico's pain and suffering included

  • unable to sit, walk or stand on his own
  • had to be fed by his parents
  • did not talk
  • cried often
  • sustained two seizures

  There is little case law as to pain and suffering damages analogous to this case; however, there have been a few cases (most of which we discussed here and here) that would give some guidance as to a sustainable figure for Nico Rivera's pre-death pain and suffering:

  • Frenchman v. Westchester Medical Center (2d Dept. 2010) - $1,000,000 in medical malpractice case; 7 1/2 months of constant pain, morphine use and fear of death
  • Dowd v. New York City Transit Authority (2d Dept. 2010) - $1,200,000 in a bus-pedestrian accident case; 18 minutes from impact to death; legs partially amputated, crush injuries, fear of impact and death
  • Perez v. St. Vincents Hospital (2d Dept. 2009) - $800,000 in medical malpractice case; 30 minutes of choking on food
  • Ramos v. Shah (2d Dept. 2002) - $450,000 in medical malpractice case; 10 days of pain from dehydration
  • Johnson v. Queens Long Island Med. Grp. (2d Dept. 2000) - $1,200,000 in medical malpractice case; 12 weeks of stomach pain and vomiting, need for colostomy and seizures
  • Hoehmann v. Siebkin (2d Dept. 2007) - $525,000 in medical malpractice case; 10 days of pain from massive inflammation of colon and multiple organ failure

  In Nico Rivera's case, there was no evidence that he was aware of or feared his impending death, significant factors present in each of the foregoing cases.

  • Plaintiffs settled before trial for $150,000 their claims against a neurologist who'd treated Nico years earlier for a suspected neurogenic disorder and who examined Nico and ordered a brain MRI a few days before Nico died.
  • two autopsy reports, both of which stated that on gross inspection the heart appeared normal.  One report (from the hospital) found microscopic evidence of focal myocyte necrosis (muscle cell death) on 2 of 34 slides and stated therefore that myocarditis was the cause of death. The other report (from the city's medical examiner) did not find myocyte damage but stated the cause of death was myocarditis based on the hospital slides.
  • only one mention in any medical records as to pain Nico suffered from before he died - the day after the pediatrician first saw him, she noted that he appeared "uncomfortable when legs touched."
  • Plaintiffs' attorney was Elsa Rodriguez Preston; the pediatrician was represented by Schiavetti, Corgan, DiEdwards, Weinberg & NicholsonCarl Weinberg at trial and Samantha E. Quinn on appeal).

  Medical MalpracticeMyocarditisNeurogenicPre-Death Pain and SufferingWrongful Death

  Dental Malpractice Pain and Suffering Award Increased on Appeal from $25,000 to $150,000 Plus $100,000 in Punitive Damages

  Posted on December 18, 2010 by

  On July 29, 2005, Helen Garber began extensive treatment in a dental office on 57th Street in Manhattan known as Toothsavers, a practice established by Jerry Lynn, with 50 employees including numerous dentists. 

  

  Over the next few months, the 71 year old Ms. Garber was treated at Toothsavers under a comprehensive plan that included implants, caps and permanent bridgework. By November a permanent bridge was made but it didn't fit. It had to be revised three times. Finally, in February 2006, Garber left Toothsavers and never returned.

  She sued for malpractice in April 2006 (Garber v. Lynn, Supreme Court, New York County, Index # 105673/06) and two years later a Manhattan jury found that there had indeed been malpractice (in the fit and placement of the temporary bridge) and plaintiff was awarded pain and suffering damages in the sum of $25,000 ($10,000 past - 3 years, $15,000 future). She was also awarded $75,000 in past and future dental expenses and $260,000 in punitive damages

  Now, on appeal, in Garber v. Lynn (1st Dept. 2010), the liability verdict has been affirmed while the pain and suffering award has been increased to $150,000 ($90,000 past, $60,000 future), the punitive damages award upheld but reduced to $100,000 and the dental expenses award affirmed.

  Here are the details of plaintiff's injuries:

  • pain
  • swelling of gums which bleed easily, pull away from the bone and trap bacteria
  • impairment of ability to chew
  • inability to clean the area around the bridge

  Plaintiff established that to restore the damage she needs more than 20 additional implants and 14 crowns

  

  defense argued  on appeal (unsuccessfully) that the pain and suffering award should not be increased, in part, because Ms. Garber had failed to mitigate her own damages in that she wore an ill-fitting, painful temporary bridge for three years without seeking new treatment. Thus, they claimed, the jury was justified in concluding plaintiff acted unreasonably and, accordingly, discounting her claims of pain and suffering. This argument was rejected by the appellate court.

  The affirmance of the punitive damages award is significant because, as New York's highest court held in McDougald v. Garber (1989), they are prohibited unless the harmful conduct is intentional, malicious, outrageous or otherwise aggravated beyond mere negligence. And, as was held in Bothmer v. Schooler, Weinstein, Minsky & Lester, P.C. (1st Dept. 1999), even where there is gross negligence, punitive damages are awarded only in singularly rare cases such as those involving an improper state of mind or cases involving wrongdoing to the public.

  Defense counsel argued that the conduct of Toothsavers was, at worst, mere negligence, and nowhere near the severe standards required for the imposition of punitive damages. The key to the punitive damages award in this case, though, was the fact that it was a Toothsavers technician - not a licensed dentist - who always fit, placed, adjusted and re-cemented plaintiff's temporary bridge.

  The appellate court noted that the unlicensed practice of dentistry is a crime and the jury was therefore free to conclude that Toothsavers was "callous in its indifference to such illegality" by having a mere technician repeatedly conduct complicated procedures such as fabricating, placing and adjusting the bridge. This, the court concluded, is precisely the sort of willful or wanton negligence or recklessness that warrants deterrence and an award of punitive damages.

  • Ms.Garber had gone to Toothsavers only to ask about repairing two chipped front teeth. After an examination, she was told she needed a whole lot more dental work including implants, caps and permanent bridgework. A $25,000 fee was quoted. When she said she couldn't afford $25,000, the fee was adjusted down to $5,000 - and treatment began that day.
  • Jerry Lynn and Toothsavers were notorious long before Helen Garber walked in the door. They were the subject of an expose in the New York Daily News on March 10, 2000.
  • In March 2002, Lynn did not contest the charge of rendering substandard dental treatment and surrendered his dental license to the New York State Board of Regents. No longer allowed to practice, Lynn then entered into what the trial judge stated was a sham transaction - the purported $6,000,000 sale of his shares in Toothsavers to Sol Stolzenberg, then a 69 year old dentist employed by Toothsavers who had recently declared bankruptcy.
  • The judge also stated that the evidence was overwhelming that Lynn controlled the day to day operations of the dental practice and that Dr. Stolzenberg was a "strawman."
  • technician - defendant Raimondo Perez - appears to have been a licensed dentist in the Domincan Republic for 11 years but when he applied here to a program for foreign dentists he was rejected.
  • New York City attorney Joel M. Kotick represented Ms. Garber and says he's represented patients in 50 cases against Lynn over the years. And has been successful in every one of them.

  Dental MalpracticeMedical MalpracticePunitive Damages

  • Bus Passenger's Shoulder Injury Case Dismissed after Two Trials and Three Appeals; $450,000 Verdict Nullified
  • Pre-Death Pain and Suffering Verdict of $3,000,000; Case Dismissed on Appeal
  • Dental Malpractice Pain and Suffering Award Increased on Appeal from $25,000 to $150,000 Plus $100,000 in Punitive Damages

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• 12 Dec ' 09:21

  $562,000 Appeals Court Award for Pain and Suffering from Thoracic Nerve Injury Causing Scapular Winging and Disabled Arm

  Posted on December 12, 2010 by

  He was a tough 47 year old steel cutter employed for many years at the Goodyear-Dunlop plant in Tonawanda, New York (the Buffalo-Niagara Falls metropolitan area) when in 2004 he noticed his right arm was swelling. After visits to a local ER and his primary care doctor, Richard Winiarski ended up seeing a vascular surgeon who told him he had a blood clot andthoracic outlet syndrome, pain in the arm and shoulder areas caused by a rib compressing upon a subclavian blood vessel.

  Here is the involved anatomy:

  

  The doctor successfully treated the clot over the next six months with blood thinning medication and an injection (known as a lytic procedure). All seemed fine but she recommended a rib resection operation to prevent a recurrence of the blood clot. The surgery involved removing the first rib so as to allow more space for the blood vessel.

  During surgery, though, the doctor did not identify the thoracic nerve (which runs through the belly of the middle scalene muscle) and the nerve was damaged  when she cut through the muscle using an electrocautery device - a surgical tool which is heated with electric current to cauterize, or burn, vessel tissue.

  

  Immediately after the surgery, Mr. Winiarski had tremendous pain in the area of his scapula (or "shoulder blade") and within two weeks at physical therapy he was seen to have scapular winging (in which the scapula protrudes at rest or with arm and shoulder movement).

  

  In the medical malpractice lawsuit that followed (Winiarski v. Harris - Supreme Court, Erie County, Index #3375/07), the jury found that the thoracic nerve had been injured by the surgeon  whose failure to identify the nerve was malpractice. The jurors then awarded plaintiff damages for his pain and suffering in the sum of $52,000 ($12,000 past - 4 years, $40,000 future - 24 years).

  On appeal, in Winiarski v. Harris (4th Dept. 2010), plaintiff's pain and suffering award has been increased to $562,000($162,000 past, $400,000 future).

  The appellate decision states that plaintiff suffers from scapular winging and a permanent limitation of his right shoulder and arm; however, there's more. Here are the details as to the injuries, which are permanent because the nerve cannot heal, grow back or be replaced:

  • 80% loss of use of his arm
  • can only lift his arm to 45 or 90 degrees (with decreasing range of motion)
  • pain requiring lifelong use of the narcotic medication Lortab
  • sleep deprivation and depression

  • Mr. Winiarski was unable to resume heavy labor and was therefore fired from his job at Goodyear-Dunlop. He then took a job as a shoe salesman in a department store but had to stop after several months because it required him to climb ladders holding shoe boxes. The jury awarded him (and the appellate court affirmed) loss of earnings damages (including health insurance and pension) in the sum of approximately $1,300,000 ($200,000 past, $1,100,000 future). 
  • The court also upheld Mrs. Winiarski's claim for loss of consortium in the sum of $120,000 ($20,000 past, $100,000 future).
  • Defense counsel claimed (unsuccessfully) that the trial judge committed reversible error when he granted plaintiff an adjournment of several days to start his proof. The doctor was scheduled to be out of town at a medical conference and objected to the adjournment because it would mean she'd be unable to attend the end of the trial proceedings (the defendant did in fact miss summations and the judge's jury instructions).
  • trial judge had increased the future pain and suffering award to $540,000 - an amount deemed $140,000 too much by the appellate judges. It appears that they wanted to bring the award in this case somewhat more in line with the $500,000 pain and suffering award affirmed recently in Garrow v. Rosettie Assoc. (3d Dept. 2009), one of the few cases dealing with injuries very similar to those sustained by Mr. Winiarski.

   

  Arm InjuriesLoss of ConsortiumMedical MalpracticeNerve DamageRib ResectionScapular WingingShoulder Injuries, Thoracic Outlet Syndrome

  • $562,000 Appeals Court Award for Pain and Suffering from Thoracic Nerve Injury Causing Scapular Winging and Disabled Arm

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• 09 Dec ' 14:29

  $6,500,000 Pain and Suffering Verdict Reduced to $1,000,000 for 32 Year Old Woman who underwent Unneeded Mastectomy

  Posted on December 9, 2010 by

  She moved to New York City from Jamaica as a 29 year old and within the year she felt a lump on her left breast. Over the next year and a half, Lydia Williams had mammograms, an excisional biopsy (that revealed cancer), a CT scan and chemotherapy before her doctor told her she needed a mastectomy (surgical removal of her breast) in order to tell if any cancerous cells remained.

  On November 22, 2000, Ms. Williams had the surgery (a modified radical mastectomy with axillary dissection - the removal of 26 lymph nodes). Immediately following, she also had abdominal trans-flap breast reconstruction surgery which involved transferring tissue from her abdomen to try to recreate her left breast.

  

  When the post-op pathological study was reviewed a few weeks later, it turned out thatthere was no cancer

  Williams then sued her surgeon and the hospital claiming that the surgery was unnecessary and that she was entitled to damages for her pain and suffering (both physical and psychological) related to the loss of her breast.

  On October 3, 2008, the jury in Williams v. New York City Health & Hospitals Corp. (Supreme Court, Bronx County; Index # 14520/01) returned a verdict finding that the surgeon had committed malpractice in unnecessarily performing a mastectomy and that he did so without properly informing his patient of other options.

  The jury found that Ms. Williams was not given the option of a lumpectomy (in which a small incision is made and the rest of the breast remains intact):

  

  Williams was awarded pain and suffering damages in the sum of $6,500,000 ($3,000,000 past - 8 years, $3,500,000 future - 42 years). In a post-trial decision, Justice Cynthia S. Kern agreed with the defense that the damages award was excessive and ordered a reduction to $1,000,000.

  This week, in Williams v. New York City Health & Hospitals Corp. (1st Dept. 2010), the appellate court has affirmed both the liability finding and the trial judge's reduction of the damages award to $1,000,000.

  Here are some details as to the plaintiff's injuries

  • complete surgical removal of her left breast
  • permanent scarring and disfigurement across abdomen and breast
  • significant post-op pain requiring a morphine pump and constant pain to the date of trial
  • chronic pain and swelling in her left arm, symptomatic of lymphedema
  • restricted social and athletic activities

  The appellate judges split 3-2 in their decision. The majority justified the $5,500,000 reduction of the jury award simply by referring to (but not discussing the relevance of) three prior cases that bear factual similarities and by stating that there was no trial testimony establishing that plaintiff had suffered extreme emotional distress.

  Here are the three cases cited by the majority:

  1. Motichka v. Cody (1st Dept. 2001) -$850,000 reduced from $2,250,000 for unnecessary modified radical mastectomy
  2. King v. Jordan (3d Dept. 1999) - $800,000 upheld for unnecessary mastectomy
  3. Lopez v. Bautista (2d Dept 2001) - for failure to diagnose cancer, later requiring a mastectomy

  The foregoing cases are all about 10 years old and in certain respects they are factually distinguishable from the Williams case. Lydia Williams was 32 years old at the time of her trial and unmarried; whereas, Ms. Motichka was 45 years old when she underwent her mastectomy, Ms. Lopez was 42 and married and Ms. King was 52 and married. Furthermore, Ms. Williams was cancer free free after her chemotherapy and need not have suffered any disfigurement while the injuries suffered by the plaintiffs in the other cases were of degree (they would have suffered less disfigurement and less pain). The appellate judges discussed none of these facts.

  The two dissenting judges found that the graphic, unsettling photos of plaintiff's body taken a few months after the surgery (that were shown to the jury) obviated the need for any extensive testimony by plaintiff or a psychologist regarding her extreme emotional distress. They stated that extensive testimony regarding plaintiff's emotional damages might have been overkill and that it was obvious (a "universal truth") that plaintiff's physical injuries and disfigurement resulted in tremendous lifelong psychological damages. The dissenting judges would have approved a pain and suffering award of $4,000,000.

  • Plaintiff's attorney asked the jury for $4,000,000 in pain and suffering damages for his client (and I hear that plaintiff would have accepted $1,200,000 before trial).
  • Defense counsel stated in his closing that not only was there no malpractice but also "the doctors in this case absolutely, absolutely saved the life of Lydia Williams."
  • defense argued (unsuccessfully) that there was an improper attempt to inject race into this case - plaintiff's attorney, in his closing argument, had stated that Ms. Williams was a poor Jamaican without insurance and that poverty and race have an impact on whether patients get the option of breast conserving treatment.

  Emotional LossMastectomyMedical MalpracticePsychological DamagesScars

  • $6,500,000 Pain and Suffering Verdict Reduced to $1,000,000 for 32 Year Old Woman who underwent Unneeded Mastectomy

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• 06 Dec ' 19:10

  • A few months after the verdict,  while waiting for a decision on defendant's post-trial motion seeking to set aside the verdict and/or have a new trial, Janda was arrested on charges related to using someone else's Social Secutiy number. Brett Nomberg, Janda's lawyer, claimed that the arrest was engineered by the insurance carrier liable to pay the judgment hoping that Janda would be deported and unavailable for a new trial. With Nomberg's win this week, there will be no new trial.

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