New York Injury Cases Blog | Medical Malpractice Law

Future Pain and Suffering Damages Verdict Reduced in Spinal Injury Aggravation Case

By John Hochfelder on May 7, 2013 Posted in Back Injuries

On August 18, 2004, Burnett Williams was working for a lead abatement contractor at the 170th Street subway station in the Bronx. He was inspecting lead as old steel was being removed in connection with demolition and construction at the station and was injured when he stepped on and fell through temporary plywood flooring and his buttocks and back landed on a steel girding beneath the flooring.

Williams, then 56 years old, claimed that the accident aggravated prior back injuries that had been quiescent but now required surgery.

His ensuing lawsuit against the subway operator and general contractor (the City of New York and the Metropolitan Transit Authority) resulted in summary judgment for plaintiff under the provisions of Labor Law 240(1) and 241(6) because the flooring constituted a hazardous opening that was not guarded by a cover fastened in place and plaintiff was not provided any device to protect against this height related injury.

The matter then proceeded to a trial on damages only that resulted in a verdict on June 24, 2010. The Bronx County jury found that the accident aggravated plaintiff’s condition and that he was therefore entitled to pain and suffering damages in the sum of $3,200,000 ($1,200,000 past – six years, $2,000,000 future – 15 years).

On appeal, in Williams v. City of New York (1st Dept. 2013), the award for future pain and suffering damages has been reduced by $800,000.

Two years before the accident, in 2002, Williams started experiencing low back pain. In May 2003, doctors diagnosed a herniated disc at L4-L5 that produced L5 radiculopathy. A month later, the pain was so bad Williams stopped working for six months. After physical therapy and a series of epidural steroid injections, Williams was getting better and he returned to work in September 2003.

Williams continued to work full time (albeit with some back pain) from September 2003 until his accident on August 18, 2004. Although he finished his work day (in great pain), Williams never again returned to any type of employment. His back pain got worse and worse and on March 1, 2005 he underwent lumbar discectomy in which his then larger than ever L4-L5 herniated disc was surgically removed.

Lumbar Discectomy:

While his radiating leg pain and weakness improved, his back pain returned. Pain management was attempted, unsuccessfully, with injections and intradiscal electrothermal therapy (IDET – an invasive procedure in which a catheter is threaded through a needle into the lumbar disc to heat it for 15-20 minutes).

A provocative discogram and lumbar fusion surgery were performed in 2007.

At trial, Williams told the jurors that his leg pain was much relieved and his back pain was somewhat relieved: “I have good days [four times a week] and bad days.” Good days meant he could walk outside, do some light shopping and run some errands. Bad days meant he woke up in pain that was so bad it lasted all day and he could do little more than lie on the floor wishing he were dead.

Inside Information:

Plaintiff’s attorney asked the jury to award $1,500,000 for past pain and suffering plus $2,250,000 for the future. Defense counsel argued that plaintiff’s condition was exacerbated only minimally as a result of the subject accident and that after the fusion surgery he returned to his pre-accident condition. Therefore, she asked that any award for past pain and suffering be “minimal” and that there be no award at all for the future.
Defendant’s pre-trial offer to settle was $125,000 while plaintiff’s demand was $3,000,000.
The defense argued that the jury’s award of $115,000 for future medical expenses was grossly excessive because after plaintiff’s fusion surgery in 2007 doctors had not recommended any significant additional treatment or surgery. The appellate judges apparently agreed in part when they ordered a $45,000 reduction of the future medical expenses award.

Appeals Court Affirms $2,000,000 Pain and Suffering Verdict for Neck Injury

By John Hochfelder on April 11, 2013 Posted in Neck Injuries

On January 13, 2006 at about 1 p.m., Mohammed Kayes, then 44 years old, was walking with his three year old daughter on the sidewalk adjacent to Queens Boulevard near 34th Street in Long Island City. Suddenly, a transit authority truck backed up and pushed over a 40 pound stop sign and pole that then dislodged and struck Kayes on his head and neck. He was knocked to the ground unconscious.

In his ensuing lawsuit against the truck driver and the transit authority, Kayes was awarded summary judgment on the issue of liability and a jury trial on the issue of damages only was held in Queens County resulting in a plaintiff’s verdict in the sum of $2,000,000 for pain and suffering damages ($500,000 past – four years, $1,500,000 future – 30 years). Defendants appealed arguing that the award was excessive; however, in Kayes v. Liberati (2d Dept. 2013), the jury verdict has been affirmed.

Here are the details of plaintiff’s injuries and treatment:

Large bruise on head with pain in neck, head and back requiring emergency ambulance transport to the local hospital
Treated in E.R. with neck brace and pain medication, discharged eight hours later after negative CT scan
Medical clinic treatment after two sleepless nights in pain; treated with pain medications and referred to physical therapist where he was treated for nine months 1-2 times per week
Continuing neck and left arm pain with radiculopathy, spasms and significant loss of range of motion in neck
MRI confirms herniated disc at C5-6 (impinging on nerves) and EMG confirms related left arm nerve damage
Epidural steroid injections
Surgery July 11, 2007: anterior cervical discectomy and fusion in which the disc between C5 and C6 was removed, a piece of bone was inserted as a stabilizer and a titanium plate was screwed in to lock the two vertebrae together

The surgery helped reduce the pain in plaintiff’s left arm but it did not eliminate his neck pain. Mr. Kayes had continuing headaches, neck pain and burning pain on the left side of his head. Several pain medications and a new course of physical therapy were tried to little avail.

Mr. Kaye testified as to his continuing injuries and disabilities:

unremitting pain, both day and night
cannot lift more than 10 pounds
dizziness from the medications
unable to drive a car, play with his child, do household chores or return to work as a busboy

Plaintiff’s surgeon, Alexander de Moura, M.D., testified that his prognosis is “guarded” at best and that within 10 years plaintiff will require additional cervical surgery because of increased stress on the level above the fusion site where the disc was already starting to degenerate more.

At the close of trial, before the jury began its deliberations, the trial judge directed a verdict as to plaintiff’s future medical expenses $831,640) and lost earnings ($605,000) because the defendants had failed to put forth “one iota” of evidence contradictory to that proffered by plaintiff. The appellate court, though, ruled that the judge should not have taken those issues away from the jurors because they could rationally have determined that the awards for those items of damage could have been less than the amount directed by the judge. Accordingly, a new trial was ordered to be held on the issue of damages for future medical expenses and lost earnings only.

Inside Information:

Plaintiff was examined by defense experts in orthopedics and neurology but neither physician was called to testify because their examinations pre-dated plaintiff’s surgery and defense counsel never opted to have follow-up examinations conducted.
The only post-surgical examinations for the defense were conducted by an ophthalmologist and a psychologist which the trial judge declared was “amazing”: “After surgery to fuse the upper levels of the neck, instead of having an [examination] as to the neck … they take a a psychiatric [examination] and opthalmologic [examination] ….”
The only witness called by the defense was a radiologist who reviewed the MRI and confirmed that Kayes had sustained disc herniations at C5-6 and acknowledged that the fusion surgery will accelerate the degenerative process in plaintiff’s cervical spine.
The claim for plaintiff’s three year old daughter was settled for $8,000 at the start of the trial.

Appellate Court Upholds $1,250,000 Pain and Suffering Verdict in Wrist Injury Case

By John Hochfelder on March 31, 2013 Posted in Wrist Injuries

On June 4, 2008 at about 11:30 p.m., Drucilla Alfonso was crossing the intersection at 39th Street and Third Avenue in Manhattan, in the crosswalk, when she was struck by a left turning city bus. The force of the impact spun her around, causing her to fall to the ground.

39th Street at Third Avenue in Manhattan

Alfonso, 52 years old, was taken by ambulance to the local hospital where she was diagnosed with a right (dominant) distal radius fracture (a broken wrist) that was casted initially but required open reduction internal fixation surgery two weeks later.

Bones of the Wrist and Hand

In her ensuing lawsuit, the bus driver was found fully at fault and a Manhattan jury awarded Ms. Alfonso pain and suffering damages in the sum of $1,250,000 ($450,000 past – three years, $800,000 future – 27 years).

On appeal, the defendants challenged only the amount of the award, claiming it was excessive; however, the entire award has been affirmed in Alfonso v. Metropolitan Transit Authority (1st Dept. 2013).

Here are the wrist injury details:

comminuted intra-articular fracture of the distal radial metaphysis with dorsal angulation of the distal fracture fragment
open reduction internal fixation (ORIF) of wrist fracture with 11 screws drilled into and through the bones and insertion of a metal plate to anchor the screws
follow-up wrist treatment twice a week for three months
unable to return to work until 10 months after the accident
constant pain and diminished grip strength

Post-ORIF Surgery

Plaintiff also claimed other injuries caused by the accident:

right shoulder pain requiring there months of outpatient hospital treatment with permanent limitations of range of motion
aggravation of cervical herniated disc at C5-6

The defendants urged that plaintiff made only a half-hearted attempt to link the herniation and shoulder claims to the accident trauma and that her case should stand or fall on the wrist injury and nothing more.

The defendants argued, unsuccessfully, that the pain and suffering award of $1,250,000 “exceeds by a factor of at least two an amount that qualifies as reasonable compensation.”

As to the wrist, they noted that plaintiff underwent only one surgery and would not need another, she ceased all medical treatment well over a year before trial and she was able to return to her job that included typing less than a year after the accident.
As to the shoulder, any pain or mild limitations were simply a byproduct of the wrist injury.
As to the neck, plaintiff made no allegations in her bill of particulars dated October 13, 2008; she first alleged this injury in her supplemental bill of particulars in November 2009. Also, plaintiff made no mention of neck pain in her testimony and her attorney made no mention of this injury in either his opening or closing statement.

The parties agreed with the appellate court that the decisions in three prior cases are relevant and instructive in determining the propriety of the amount of the pain and suffering award in this case. All three involve distal radius fractures requiring one or more surgeries.

Diouf v. New York City Transit Authority (1st Dept. 2010) – $1,000,000 for 55 year old man with bilateral fractures (discussed by us previously, here)
Hayes v. Normandie LLC (1st Dept. 2003) – $985,000 for 57 year old man
Cabezas v. City of New York (1st Dept. 2003) – $900,000 for 50 year old man

Inside Information:

Two medical experts testified. Paul Post, M.D., an orthopedic surgeon, examined plaintiff and opined that she had markedly diminished range of motion in her wrist, her grasp was weak and her condition will get worse with the onset of arthritis. Plaintiff’s expert opined that she has permanent restricted range of motion in her shoulder and the disc herniation caused stiffness and inability to turn her head fully. The defense called Iqbal Merchant, M.D., a neurologist, who testified only as to the cervical injury stating: “I can’t say whether it comes from the injury or not, but there is a lot of arthritis.” An orthopedist who had examined plaintiff for the defense was not called to testify.
In closing arguments, defense counsel suggested that $100,000 was a fair pain and suffering award; whereas plaintiff’s counsel asked the jurors to award $1,250,000 and after 45 minutes of deliberations, that’s the exact amount they awarded.

Appellate Court Overturns $2,000,000 Verdict for Post-Traumatic Stress Disorder and Punitive Damages in Case alleging Excessive Force by Police

By John Hochfelder on March 27, 2013 Posted in Psychological Damages, Punitive Damages

Carlos Pacheco was 23 years old and had a five year history of seizure disorders. Typically, an ambulance would be summoned to his apartment in the Bronx and he’d be taken to the hospital, treated and released. On September 30, 2006, Carlos was having a seizure and his girlfriend called 911.

After police and ambulance personnel arrived, Carlos became combative and was restrained and then he was subdued with handcuffs, a chair restraint and stunned with a Taser by a police officer.

This latest seizure landed Carlos in the hospital for two days for observation and testing. The Taser incident landed the City of New York and several of its police officers in court with a lawsuit by Pacheco claiming that the police used excessive force (he claimed he was tasered at least six times while the defense claimed it was only two) and that as a result he suffers from post-traumatic stress disorder.

The case came on for trial in the Bronx on September 14, 2010 and resulted in a verdict in plaintiff’s favor finding that excessive force had been used and that plaintiff was entitled to pain and suffering damages in the sum of $1,042,499 ($409,166 past – four years, $633,333 future – 48 years). In addition, the jury awarded punitive damages in the sum of $1,000,000. Thus, the total jury award was $2,042,499.

The defendants’ motion seeking to set aside the verdict and/or reduce the damages was denied in a post-trial decision by the Hon. Geoffrey D. Wright dated May 7, 2012.

Thereafter, defendants appealed and now, in Pacheco v. City of New York (1st Dept. 2013), the entire verdict has been set aside, the judgment reversed and the complaint dismissed because, the court held, the evidence was insufficient to permit the jury to find that excessive force had been used.

The appellate court did not reach or discuss the issue of whether the damages awarded by the jury were excessive. The parties, though, argued that point in connection with the post-trial motion. It appears that had the verdict been upheld as to liability, the pain and suffering damages would have been reduced because of the paucity of medical treatment and proof.

Here are the injury details:

post-traumatic stress disorder or PTSD (an expert neurologist who examined plaintiff three years later testified that plaintiff suffers from nightmares, flashbacks, sleep disorder, depression, mood and memory problems, all of which are permanent and progressive)
burn marks and pain from the Taser on chest, abdomen and back
wrists and ankles pain from the use of restraints

The defense noted that apart from the initial hospital admission of two days when plaintiff was evaluated as to his seizures and then an emergency room visit a few days later when plaintiff complained of some ankle and leg pain, Pacheco never once over the ensuing years sought any medical or psychological treatment at all for his injuries. Furthermore, the only one who ever made a diagnosis of PTSD was plaintiff’s expert (the defense did not call upon a medical expert of its own) who examined plaintiff once for 45 minutes three years after the incident. Finally, any burn marks or pain, the defense claimed, were either minimal and/or had healed quickly.

To recover punitive damages, a plaintiff in a case alleging excessive force by a police officer must prove conduct that was wanton, reckless or malicious. Even assuming plaintiff here could have (or did) sustain that burden of proof, it does not appear that as much as $1,000,000 would have been upheld had the liability verdict been affirmed. In Ferguson v. City of New York (1st Dept. 2010), for example, a punitive damages award of $2,700,000 was sustained but there an officer acted in complete disregard of police procedure and fired his gun into the back of a suspect’s head killing him instantly. The amount of punitive damages must be reasonably related to the harm done and the flagrancy of the conduct and therefore Ferguson v. City of New York is distinguishable from Papa v. City of New York (2d Dept. 1993) in which a punitive damage award of $1,250,000 was reduced to $500,000 because in the Papa case (as in Pacheco v. City of New York), there was no one shot and killed.

Inside Information:

In her opening statement, defense counsel argued that plaintiff “was looking for a pay day as a result of officers trying to help him” and he was entitled to nothing at all. In his summation, plaintiff’s counsel said that Mr. Pacheco’s life was ruined and he asked the jury to award $3,500,000 in pain and suffering damages plus $1,000,000 in punitive damages.
Lab tests at the hospital immediately following the Taser incident indicated that plaintiff had an inadequate amount of previously prescribed anti-seizure medication Dilantin in his system and his expert admitted that that’s why he seized.
Plaintiff never told his expert about two important matters: a year and a half after the incident he’d been kicked out of his house and had to leave all of his belongings behind and six months later he broke up with his long time live-in girlfriend. The expert admitted that he “would have liked to have known that” information.
At a settlement conference in court seven months before trial, the city offered $100,000 but plaintiff would not take less than $125,000 (and thereafter increased his settlement demand to $600,000).

Another Significant Verdict Affirmed for Non-Surgical Spinal Injuries

By John Hochfelder on February 14, 2013 Posted in Back Injuries, Neck Injuries

On November 23, 2003, at about 8 p.m., Alicia Rutledge was boarding a city bus at the corner of 125th Street and Seventh Avenue in Manhattan. She claimed that the bus driver closed the doors on her when she was on the first step. Her arms were pinned by the doors of the suddenly moving bus and her body twisted. Alicia yelled to the driver to stop, he did so abruptly and then she entered the bus, took her seat and traveled to her stop.

Getting on the Bus

The next morning Alicia went to a hospital emergency room complaining of pain in her left arm and shoulder and an inability to feel her fingers. She was treated and released but remained in pain. Although she worked a few days over the next two weeks as a certified nurse’s aide assisting the elderly, her pain worsened and Alicia never returned to her job. She underwent MRI testing and was diagnosed with a herniated disc at L4-5 and bulging discs at C4-5 and C5-6.

In January 2005, Alicia sued the bus operator, the New York City Transit Authority, and the case came on for trial in Manhattan on October 13, 2010. The jury rendered a verdict for the plaintiff, awarding her pain and suffering damages in the sum of $500,000 ($100,000 past – 7 years, $400,000 future – 20 years). The verdict has now been affirmed in Rutledge v. New York City Transit Authority (1st Dept. 2013).

This case is significant for several reasons. First, it is a relatively large pain and suffering award for a non-surgical spinal injury case (we discussed another such case previously, here). Second, inasmuch as this was a motor vehicle accident case, the so-called threshold as to minimum injuries had to be met by plaintiff (and the jury nearly dismissed the case finding that plaintiff met only one of the three categories delineated in the jury charge). Third, plaintiff’s treatment for her injuries appeared to be relatively minimal and with significant gaps.

Here are the injury and treatment details:

chiropractic treatment until relocation to Atlanta in April 2004
several epidural and trigger point injections, as well as nerve blocks
severe back pain caused discontinuation of two sedentary jobs in Atlanta, one after four weeks and the other after three months; unable to work at all thereafter
10 physical therapy treatments in 2008
monthly pain management 2008-2010
continuing headaches, neck and back stiffness and radiating pain
continued use of back brace and cane

Mark McMahon, M.D., an orthopedic surgeon, examined plaintiff one time, in 2010, a few months before trial. Dr. McMahon testified at trial and opined that plaintiff’s injuries include:

moderate (50%) to severe (67%) permanent decreased range of motion in her back and neck
L4-5 herniated disc compressing the spinal cord and exiting the nerve roots
C4-5 and C5-6 bulges impinging on the nerve roots
inability to return to nursing career
needs cervical and lumbar decompression and fusion surgeries

Inside Information:

George Paul, M.D., an orthopedic surgeon, testified for the defense. He examined plaintiff three months after the accident and testified at trial that his examination of Ms. Rutledge was 100% normal; he did not find anything wrong with her. He admitted, though, that until he took the stand at trial, he had never seen any of plaintiff’s medical records or test results.
The jury found that plaintiff met the 90-180 threshold category under Insurance Law Section 5102 but that she had neither a significant limitation of use of a body function or system nor a permanent consequential limitation of use of a body organ or member. The defense argued (unsuccessfully) that the $400,000 future pain and suffering award should be reduced to reflect the jury’s findings of non-permanence and no significant limitation.
In closing arguments, plaintiff’s attorney suggested an award for past pain and suffering in the range of $1,000,000 to $1,500,000 and for future pain and suffering in the range of $3,000,000 to $5,000,000. Defense counsel argued that the bus driver was not at fault and that in any event plaintiff’s injuries did not meet the threshold and therefore “she’s not entitled to any money.”
In addition to pain and suffering damages, the jury also awarded (and the defendant did not challenge) $200,000 for past and future loss of earnings and $100,000 for future medical expenses (apparently the cost of the two spinal fusion surgeries testified to by Dr. McMahon).

Nursing Home Negligence Causes Pressure Ulcers; Substantial Pain and Suffering Damages Verdict Affirmed on Appeal

By John Hochfelder on January 25, 2013 Posted in Medical Malpractice

Tragedy struck Gualbert Alvarez twice in his young life.

On July 15, 2001, he dove into shallow water and struck his head, causing spinal cord damages, which left him permanently paralyzed from the neck down. He was 24 years old.

Gualbert was rushed to Jamaica Hospital where he was in a coma for three months after his diving accident and underwent numerous surgeries. After being medically stabilized, he was transferred to the Rusk Institute for rehabilitation, then to Pelham Bay Nursing Home and, in December 2001, he was transferred to Beth Abraham Nursing Home where he remained for 26 months until July 6, 2004.

In March 2004, tragedy struck a second time when Alvarez, who could not turn independently and needed assistance to get out of bed, developed bed sores (also called pressure sores, pressure ulcers and decubitus ulcers). They started as Stage II in his feet and heels but then, over 11 days, he developed a Stage IV ulcer in his left buttock.

In January 2005, Alvarez sued the nursing home claiming that his bedsores were a result of the staff’s negligent skin care – in failing to regularly position his body.

On March 9, 2011, a Bronx jury agreed and found that the defendant was negligent and that plaintiff was entitled to pain and suffering damages in the sum of $750,000 ($500,000 past – seven years, $250,000 future – 42 years).

In Alvarez v. Beth Abraham Health Services (1st Dept. 2012), the appellate court recently affirmed both the liability determination and the damages awards.

Here are the details of plaintiff’s injuries:

development of Stage IV ulcer on left buttock, about two inches in diameter and two inches deep, with necrosis and foul odors
16 weeks of follow-up treatment including applications of wet to dry dressings – placing saline gauze into the would and then ripping it out after it sticks, so as to remove necrotic tissue
sharp surgical debridement involving excruciating pain (the wound cannot be anesthetized)
continuing pain at the ulcer site from area where the spine meets the legs
sore remained open for 2-3 months before healing with large scar over an embarrassing hole in left buttock preventing plaintiff from sitting for a long time
likelihood that the ulcer will reopen in the future and residual increased susceptibility to development of further bed sores for the rest of plaintiff’s life

The appellate court decision does not refer to any prior cases dealing with the proper amount of damages in a case like this (there are in fact very few); however, there are two relevant prior cases that apparently influenced the judges:

Parson v. Interfaith Medical Center (2d Dept. 1999) – $400,000 pain and suffering award (all past – six months, no future – death from unrelated causes) reduced from $1,000,000 for 92 year old nursing home resident with six pressure ulcers, including three very large Stage IV ulcers
Kolbert v. Maplewood Healthcare Center, Inc. (4th Dept. 2005) – $500,000 pain and suffering award (all past – one year, no future – death from unrelated causes) reduced from $1,500,000 for 78 year old nursing home resident with Stage IV pressure ulcers in her heels as well as a fractured elbow

Inside Information:

After the jury charge, it took only an hour and a half to render the verdict.
It appears that the jurors were disturbed by the fact that defendant’s records indicated that proper and necessary turning and positioning (i.e., once every two hours) only took place 65% of the time.
Part of the defense was that plaintiff was a noncompliant patient who stayed in his wheelchair too long, refused to wear prescribed booties for his feet and left the premises too often for outside social visits.
At the time of trial, plaintiff lived with his wife, who he married in 2007.

Appeals Court Affirms $3,166,667 Pain and Suffering Verdict for Leg and Other Injuries Sustained by Electrician who Fell from Ladder

By John Hochfelder on January 16, 2013 Posted in Leg Injuries, Loss of Consortium Damages

On July 21, 2000, Daniel Hernandez was working on a defective lighting fixture at a Great Neck construction site when he fell from a ladder and broke his leg. He never recovered from his injury (it got worse and others developed too); he was never able to return to work. His damages lawsuit took eight years to get to trial. And then it took another four years to conclude post-trial motions (we wrote about this case three years ago, here) and appeals.

Now, in Hernandez v. Ten Ten Co. (1st Dept. 2013), an appeals court has upheld the jury’s verdict awarding pain and suffering damages in the sum of $3,166,667 ($1,000,000 past – eight years, $2,166,667 future – 25.8 years).

The appellate court decision lists the injuries sustained by Mr. Hernandez that persuaded the judges to uphold the substantial pain and suffering award. Here are the injury details:

tibia and fibula fractures – severe comminuted mid-shaft, open surgery with rod inserted from knee to ankle, fibula non-union requires future surgery and bone grafting, peroneal nerve injury, chronic and persistent pain, antalgic gait, needs crutches to ambulate
back injuries – radiculopathy at L4-5 and S-1 confirmed by EMG, severe persistent low back pain
reflex sympathy dystrophy (RSD) – progressively worsening chronic pain syndrome affecting both lower extremities, burning pain in legs and feet, discolored and dry, flaky skin
depression – previously active and employed, now house-bound, reclusive and often crying, stupefied and drowsy from medications, unable to think straight or be attentive
sleep disorder – cannot sleep without Ambien
sexual dysfunction – no physical relations with wife

Plaintiff’s counsel in Hernandez argued on appeal that Serrano v. 432 Park S. Realty Co., LLC (1st Dept. 2009), a case we discussed here, is the closest comparable case that is instructive and persuasive insofar as relative injuries and awards are concerned. The judges in Hernandez agreed, citing only the Serrano case as justification for upholding the awards to Mr. Hernandez.

In Serrano, a 32 year old construction worker fell from a ladder and sustained severe wrist fractures requiring two significant surgeries leaving him with a functionally useless hand, a herniated disc also requiring surgery, RSD and depression. In that case, the jury awarded plaintiff pain and suffering damages in the sum of $4,840,000 ($600,000 past – six years. $4,240,000 future – 38 years). The appellate court reduced the future damages to $2,500,000, resulting in a total affirmed award of $3,100,000.

Inside Information:

The jury’s loss of services award to plaintiff’s wife in the sum of $341,666 was affirmed on appeal. Interestingly, this award was for past loss of services only; there was no award at all for future loss of services. The award is very high relative to other cases considering it represents a period of only eight years; however, when considering the jury’s finding that Mr. Hernandez’s pain and suffering will continue for 25.8 years, the loss of services award appears reasonable (and it was not specifically challenged on appeal). Apparently, the jurors were confused.
Plaintiff was held to be 46.67% at fault for the accident – (with the remaining 53.33% charged to the defendant). Accordingly, Mr. Hernandez will receive a prorated reduced portion of the affirmed judgment.

Court Affirms Medical Malpractice Verdict for Failure to Diagnose and Treat Compartment Syndrome but Orders Significant Damages Reduction

By John Hochfelder on January 7, 2013 Posted in Amputation Injuries, Medical Malpractice

On September 24, 2000, Thomas Burke fell from his wheelchair and injured his left foot. Mr. Burke, then 57 years old, had been afflicted with progressive multiple sclerosis for 20 years and had been wheelchair-bound since the mid-1990s. A week after he fell, Burke consulted with the first of several doctors about continuing leg pain. Unfortunately, he developed compartment syndrome and on October 11, 2000 – less than three weeks after he fell – Burke’s left leg had to be surgically amputated below his knee.

Compartment- Syndrome

Compartment syndrome is a painful condition that occurs when pressure within the muscles builds to dangerous levels. If acute, it is a medical emergency requiring a fasciotomy in which the surrounding skin and fascia (connective tissue) are cut open and away to relieve the pressure.

Burke sued several physicians claiming malpractice but all were dismissed from his suit except an orthopedic surgeon, Wesley V. Carrion, M.D., who treated him one time, 11 days after the fall. Burke claimed that the orthopedic surgeon should have diagnosed acute compartment syndrome (“ACS”) and performed a fasciotomy. The defense contended that ACS is only acute for about seven hours after an injury and that thereafter it is medically inadvisable to operate. The jury disagreed and on May 6, 2008 they returned a verdict finding the defendant liable.

The jury also: (a) assessed pain and suffering damages in the sum of $1,500,000 ($500,000 past – eight years, $1,000,000 future – 17 years) and (b) awarded plaintiff’s wife loss of services damages in the sum of $750,000 ($250,000 past, $500,000 future).

On appeal, in Burke v. Carrion (2d Dept. 2012), the liability finding and the pain and suffering damages awards were affirmed; however, the loss of services awards were slashed to $20,000 ($15,000 past, $5,000 future).

Plaintiff argued, successfully, that the pain and suffering awards should be sustained because, even though plaintiff was wheelchair bound for many years he had been “fiercely independent” and able physically in many respects (e.g., prepared his own lunches, washed dishes and drove his car) but after the amputation he:

was essentially immobilized in the hospital and in rehabilitation for approximately one year
was without a prosthesis for a year and during that time had to be moved by a Hoyer lift
underwent nine surgical procedures (three major surgeries on his lower leg and numerous debridements)
sustained global degeneration – the loss of most muscle strength and coordination throughout his body
became totally dependent on others for activities of daily living such as wheelchair transfers, showering and toileting

Hoyer Lift

The defense argued, unsuccessfully, that the pain and suffering awards were excessive, and the 17 year future period too long, because of a host of pre-existing conditions Mr. Burke was already suffering from including: progressive MS, strokes, Bell’s Palsy, seizures heart conditions and depression.

Although the appellate court affirmed the pain and suffering damages, it ordered a drastic reduction of the plaintiff’s wife’s loss of spousal services and consortium verdict: from $750,000 to $20,000.

Plaintiff argued on appeal that his wife’s derivative award was proper because Mr. Burke had, before the amputation, been “a loving husband and enjoyable partner” with “an intimate marriage [that] was transformed into a sad existence of caretaking, worry, and lack of normalcy and support.” Additionally, plaintiff argued that he could no longer perform any household chores.
The defense argued, successfully, that there was insufficient evidence to support any significant loss of services award claiming that strokes before the amputation left Mr. Burke unable to handle the household finances, transfer from one spot to another or drive a car and that he was already essentially immobile and in need of outside physical assistance.

Inside Information:

On May 24, 2009, just a year after the verdict was rendered, Thomas Burke died from brain cancer, a cause unrelated to his leg or malpractice claims. Under New York law requiring large future pain and suffering verdicts to be paid out over many years (and discontinued in the event of death), almost all of the future pain and suffering damages in this case in excess of $250,000 will not be due.

Two months before the verdict in Burke v. Carrion, a different jury exonerated Dr. Carrion in a different case, Mistretta v. Carrion. In that case, a 15 year old who underwent a derotational osteotomy claimed that she developed compartment syndrome because peroneal nerve compression had not been addressed intra-operatively. The jury rendered a defense verdict finding no malpractice.

Federal Appeals Court Affirms $15,000,000 Pain and Suffering Verdict in Paralysis Case

By John Hochfelder on December 31, 2012 Posted in Paralysis

On January 17, 1999, Vito Saladino, then 36 years old, was working for American Airlines as a baggage handler at John F. Kennedy International Airport in Queens. Mr. Saladino was a passenger in a baggage tractor driven by a co-worker and as they passed a parked jet, backwash from the jet’s engine caused the baggage tractor’s hood to lift up and strike Mr. Saladino’s head. The impact fractured his cervical spine and rendered hm a quadriplegic.

The Baggage Tractor in this Case

A lawsuit was commenced in 2001 in the United States District Court in Brooklyn (usually such a case would be brought in state court but because the parties were citizens of different states, so-called diversity jurisdiction under 28 U.S. Code Section 1332 allowed plaintiff to choose federal court instead).

Trial in November 2008 resulted in a jury finding that two parties caused the accident – the manufacturer of the baggage tractor, Stewart & Stevenson Services, Inc. and its related companies (30%) and the owner of the vehicle, American Airlines (70%).

The tractor should have been equipped with a cab and latches that might have prevented the injury from the fly-away hood. The defendants were therefore liable on a failure to warn theory- users operating the vehicle without a cab and without adequate latches did not know the hood could swing back, enter the passenger compartment and strike an occupant.

A separate trial on damages was held in July 2010 and plaintiff was awarded pain and suffering damages in the sum of $15,000,000 ($5,000,000 past – nine years, $10,000,000 future – 24 years). The trial judge issued a decision denying the defendants’ motion for a new trial on the grounds of excessiveness.

The defendants then appealed both the liability and damages verdicts; however, in Saladino v. American Airlines, Inc. (2d Cir. 2012), the federal appellate court has now affirmed the entire verdict.

Here are some details of the tragic nature of plaintiff’s injuries and losses:

multiple cervical spine fractures
numerous surgeries including corpectomies (removal of vertebral bone and disc material) at C-4 and C-5 and spinal fusion
about a year and a half as an inpatient in hospitals and rehabilitation facilities
feeling only above collar bone and at top of shoulders
cannot open or close fingers and operates electric wheelchair by leaning on a joystick
requires 24 hour a day home care with nurses and health care aides
incontinence: requires constant catheterization for bladder evacuation and nurse to manually clear bowels

Cervical Corpectomy and Fusion

The defendants did not challenge the nature and severity of plaintiff’s injuries; they merely claimed that the verdict amounts were much too high. In comparing the awards in this case with awards approved by appellate courts in other similar cases, the defense pointed to the fact that Mr. Saladino experiences little physical pain on a daily basis. In those cases in which as much as $10,000,000 has been approved by New York appeals courts for pain and suffering, the defense correctly noted that the plaintiffs experienced excruciating pain on an ongoing, chronic basis.

The appellate judges in Mr. Saladino’s case dismissed the “no pain” argument approving the trial judge’s decision which noted that in the cases cited by the defendants the paralysis was less (paraplegia versus quadriplegia) and that in this case Mr. Saladino has complete understanding of his “near-total loss of physical limitations” and the fact that he “is essentially a prisoner in his own body, dependent on others for every moment of his day.”

In connection with their excessiveness claim, the defendants argued that the the federal appellate court was limited in its review of comparable cases to those cases decided by New York’s Appellate Division Second Department (to which an appeal would have been taken had this case been brought in the state court). That argument was made because it’s widely thought that the Second Department (hearing appeals from 10 downstate counties such as Kings, Queens, Nassau, Suffolk and Westchester) is less likely than the First Department (which hears appeals from the Bronx and Manhattan) to allow higher verdicts to stand and more likely to order a reduction. The judges in Saladino rejected this defense argument noting that there is “no binding authority for this proposition” and that “it would be odd for a federal court to disregard potential informative cases arising in other parts of the state.”

Inside Information:

In closing arguments, plaintiff’s’ attorney asked the jury to award pain and suffering damages in the sum of $40,000,000 whereas one of the defendants’ attorneys suggested $5,000,000 and the other suggested $2,500,000.
The verdict also included (a) past medical expenses in the sum of $4,908,108 (to which all counsel stipulated) and future medical expenses in the sum of $18,000,000 (over 24 years) and (b) past and future loss of earnings in the sum of $1,532,309.
Mrs. Saladino presented a loss of consortium claim. Although separated and living apart since 2008 when Mr. Saladino moved out of the marital home, Mrs. Saladino had left work for two years immediately after the accident to care for her husband, intimate physical relations were non-existent and the marriage was destroyed by the accident. The jury awarded her $750,000 (after her attorney asked for $1,000,000 with defense counsel suggesting $500,000).

Large Pain and Suffering Verdict Affirmed for Teenager with Fractured Leg and Degloving Injury

By John Hochfelder on December 27, 2012 Posted in Ankle Injuries, Leg Injuries

On November 19, 2005, at about 7 p.m., Ernest Lewis, then 13 years old, was on his way home from church walking towards the bus stop at 145th Street and Convent Avenue in Manhattan. He saw a bus ahead and ran along the sidewalk to catch it before the driver pulled away.

Ernest reached the rear of the 60 foot long stopped bus and tapped the side with his hands to alert the driver but as Ernest was going toward the front to get on the bus, he fell under the wheel near the sidewalk, at the middle of the bus. At the same time, the bus began to pull out of the stop and ran over his legs with the right middle tire.

Ernest sustained very significant leg injuries and a lawsuit was brought on his behalf alleging that the bus driver was negligent because he pulled away from the bus stop when it was unsafe to do so.

The jury heard testimony about where Ernest was when the bus moved out, what the driver saw and heard before moving and on March 3, 2011 they returned a verdict finding the driver 100% at fault. They then heard testimony about Ernest’s injuries and awarded him pain and suffering damages in the sum of $6,500,000 ($2,500,000 past – five years, $4,000,000 future – 10 years).

In Lewis v. New York City Transit Authority (1st Dept. 2012) both the liability and damages verdict have been affirmed on appeal.

The decision sets forth that plaintiff sustained an open fracture of his distal fibula and a degloving injury of his ankle and lower leg (the traumatic tearing away of tissue and muscle) resulting in extensive hospitalization, surgeries, arthritic changes and a need for future ankle fusion. Here are the details of plaintiff’s treatment:

open reduction and internal fixation surgery (with screw and rod through the length of the fibula)
external fixation applied to right leg for three months
placement of syndesmotic screw between tibia and fibula
five irrigation and debridement and plastic surgical procedures for highest grade of severity of tissue loss (including an eight hour surgery to transplant abdominal muscle to his calf and a 400 square centimeter skin graft from his thigh)
surgery to transplant blood vessels
total of eight surgical procedures in the three months post-accident
left ankle casted for six weeks for suspected calcaneus fracture
hospital in-patient for three and a half weeks, 10 weeks of in-patient physical therapy and 14 months of home care

Plaintiff’s prognosis is poor:

substantially limited range of motion in all aspects of his right ankle
arthritis presence indicates the need for ankle replacement or fusion surgery in five years
permanent scarring on abdomen and leg with dessication (dryer skin caused by lack of any oil producing glands leading to permanent chronic skin cracking and injury susceptibiliy
inability to walk without limping by the end of many days
embarrassment and depression

Inside Information:

Plaintiff’s main treating physicians – an orthopedic surgeon and a plastic surgeon – testified on his behalf; however, while the defense had plaintiff examined before trial by three different physicians, no doctor testified for the defense.
The jury’s award of future pain and suffering damages covered a period of only 10 years even though the judge charged the jury that plaintiff’s life expectancy was 57 years and the testimony of plaintiff’s physicians as to permanency was unchallenged. Plaintiff’s counsel surmised that the jurors must have had some knowledge of the workings of New York’s structured settlement law (CPLR 5041) that limits (i.e., structures in the form of an annuity) future pain and suffering payments to a period of 10 years.