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New York Injury Cases Blog

News & Updates on Pain & Suffering Verdicts & Settlements

Appellate Court Addresses Damages in Medical Malpractice Death Case

Posted in Medical Malpractice, Wrongful Death

Wilbur Rodriguez, a 44 year old postal worker, went to a hospital emergency room in Manhattan at 11:45 a.m. on Saturday, January 24, 2009. He complained of shortness of breath that started the day before, fever and chills. He was diagnosed with pneumonia and, after 12 hours in the ER, admitted and assigned a room.

Rodriguez was seen in his room every hour or so continuing to complain of shortness of breath and being treated with oxygen via nasal canula or mask. He was last seen by a nurse at about 4 a.m. who noted he had no signs of shortness of breath at that time.

A patient (not Rodriguez) receiving oxygen therapy:

Forty minutes later he was found unresponsive, could not be resuscitated and was pronounced dead an hour after that.

An autopsy report concluded that the cause of death was “bronchopneumonia complicating diabetes mellitus.”

His mother, Evelyn Rivera, a Bronx resident, was his sole survivor and she commenced a lawsuit against the hospital claiming that doctors should have more closely monitored her son by (a) transferring him from the ER to the intensive care unit and, later, (b) transferring him from his room (on a general medical floor) to an appropriate area in the hospital with continuous monitoring.

On April 18, 2012, the Bronx jury rendered a verdict finding that the hospital had indeed negligently caused the death of Mr. Rodriguez as alleged and they awarded economic damages for his mother’s loss of household services in the sum of $720,000 ($40,000 past – three years, $680,000 future – 17 years). The jury declined to award any sum at all for pre-death conscious pain and suffering.

Both parties asked the trial judge to set aside the verdict.

  • Plaintiff argued that there was no basis for the jury to conclude Rodriguez had not suffered in the five minutes or so before he died in view of (a) the many references in the hospital record that Rodriguez had difficulty breathing and was hypoxic, (b) the autopsy report concluding that pneumonia was the cause of death and (c) the testimony of his medical expert Mark Schiffer, M.D. , that the cause of death was respiratory failure due to bronchopneumonia which would necessarily cause suffering as Rodriguez fought, and lost, his battle to breathe.
  • Defendant argued that the future household services loss award was excessive.

The judge granted the defendant’s motion to the extent of ordering a reduction of the future household services award to $340,000 but she denied the plaintiff’s application to set aside the award of $0 for pain and suffering and/or for a new trial on that issue.

In Rivera v. Montefiore Medical Center (1st Dept. 2014), the judge’s post-trial decision has been affirmed. Plaintiff’s award now stands at $380,000 (all for her household services loss).

As indicated in the decision, it appears that the jury awarded nothing for pain and suffering because of testimony from defendant’s emergency medicine expert Mark Silberman, M.D.  that Rodriguez “most likely” died from a sudden, unexpected cardiac arrhythmia (an irregular heartbeat), died instantly and he did not suffer at all. The expert based his conclusion, in part, upon the fact that the autopsy report documented left ventricular hypertrophy (an enlargement of the left side of the heart – the pumping mechanism – which increases risks for cardiac problems).

Ms. Rivera testified that her son had never married, had no children, lived alone and that every day after work he would visit her apartment for two or three hours and help her with household chores (such as  cleaning and shopping). Calculation of her loss of household services claim was based upon the testimony of expert economist Alvin Mickens, Ph.D., who used statistical averages of 15.5 hours a week and an hourly rate of $13.66 to arrive at a 17 year total of $286,202. Therefore, both the trial judge and the appellate court determined that the jury’s award of $720,000 for household services was excessive. They did, though  allow $380,000 (still an amount that was more than the economist calculated) since “pecuniary damages need not match the expert’s assessment exactly.”

Ms. Rivera also testified that her son gave her at least $600 every month to help support her. She, therefore, claimed loss of support or inheritance damages in the sum of $600 per month from the date of her son’s death up through her own life expectancy of about 17 more years. That would have added at least $125,000 in damages; however, there was no documentary proof such as bank records or checks to evidence these payments so the trial judge ruled that plaintiff was precluded at trial from pursuing this claim.

Inside Information:

  • During trial, there was a $300,000 settlement offer and an indication that the defendant would offer more. Ms. Rivera rejected the offer and stated on the record (outside the presence of the jury) that no amount of money would resolve the case and she wanted the jury to render a verdict.
  • In his closing argument, plaintiff’s counsel suggested an award of $600,000 for pain and suffering plus $290,000 for loss of household services.
  • The loss of support or inheritance claim might be the subject of a new, separate appeal because it was not raised or discussed in the context of the post-trial motion and the appellate court stated it was “not properly before us on appeal.”



Significant Verdict Upheld on Appeal in Nursing Malpractice Case

Posted in Medical Malpractice

On August 31, 2006,  after his usual morning coffee at home in Staten Island, Robert Messina got up and went outside to drive to work. He never made it past the outside of his car where his wife found him – without his keys, shirtless and confused.

An ambulance was called and the 58 year old Messina was taken to the local hospital where he presented with an acutely altered mental status and fever. He was intubated and sedated to facilitate a full work-up, including a lumbar puncture to rule out encephalopathy (brain disease).

After four days in the hospital, doctors noted the presence of a Stage IV pressure ulcer (a bed sore) on Mr. Messina’s right hip.

In a Stage IV pressure ulcer, the skin breakdown extends into the muscle and can extend as far down as the bone. Usually lots of dead tissue and drainage are present:

Messina developed many other bed sores, infections and significant debilitating complications over two months of treatment until he was discharged to a nursing home on October 27, 2006 where he remained (except for three readmissions to the hospital) until October 24, 2007 when he was discharged to home and cared for thereafter with visiting nurse services.

In his ensuing lawsuit, Messina claimed the hospital was negligent because the nurses failed to render appropriate care which led to (a) the development of bed sores and (b) the development of infected bed sores.

The defendant contended that Messina came into the hospital with a life threatening condition, “on death’s doorstep,” and that neither the doctors nor the nurses who treated him did anything wrong.  Defense counsel told the jury that Mr. Messina’s “biggest problem was his lifestyle” – he was morbidly obese (375 pounds) , diabetic, had hypertension and had been a heavy smoker for 40 years – and that as a result Messina developed respiratory problems as well as a kidney problem requiring temporary dialysis in the hospital. Thus, counsel argued, the hospital staff “saved his life” and did not cause plaintiff’s pain and suffering.

Plaintiff’s counsel countered that the injuries sustained in this case were foreseeable and preventable and that Mr. Messina was literally abandoned for days at several critical times by the nurse in charge of wound care treatment.  Furthermore, the fact that Mr. Messina had serious medical conditions that landed him in the hospital, counsel argued, was not at all a reason to exculpate the hospital from negligence; rather, it required “greater vigilance” and a departure from the “cookie-cutter care” that was rendered and not changed during plaintiff’s initial admission.

Plaintiff’s emergency medicine and wound care expert, Kelly Johnson-Arbor, M.D., made three findings:

  1. treatment of the pressure ulcers was not adequate and kept them from getting better,
  2. plaintiff was not provided with appropriate pressure relief surfaces (such as a bed specifically designed for patients as overweight as plaintiff was), and
  3. the nursing staff did not look for the presence of osteomyelitis which was very likely present during his first admission.

The type of bed (which is used with a six inch thick mattress), from Big Boyz Industries, that plaintiff’s expert testified should have been used to give plaintiff more pressure relief and reduce the likelihood of osteomyelitis:

On June 3, 2011, the Richmond County jury found that the hospital was negligent in its care and treatment of plaintiff during his initial two month admission and they awarded damages in the sum of $5,402,748 as follows:

  • pain and suffering damages in the sum of $2,992,000 ($1,000,000 past – five years, $1,992,000 future – 16.6 years)
  • future medical costs in the sum of $2,193,748
  • future lost earnings (Messina had been a kitchen designer) in the sum of $162,000 (3.6 years) and
  • loss of services and economic damages to plaintiff’s spouse in the sum of $55,000

In Messina v. Staten Island University Hospital (2d Dept. 2014), both the liability finding and the damages awards have been affirmed.

The court’s decision mentions that plaintiff sustained skin ulcers but otherwise contains no mention at all of the extensive injuries in this case which include:

  • development and progression of right hip sacral decubitus ulcers, Stage IV
  • infection of right hip ulcer with osteomyelitis leading to a dislocated hip that needs replacement surgery but doctors have declined to operate because the bone is chronically infected
  • bilateral buttocks decubitus ulcers, Stage IV
  • right heel and bilateral feet decubitus ulcers, Stage IV
  • scrotum and penis ulcers
  • severe infections of ulcers
  • more than a dozen surgical debridements
  • inability to take care of bodily and toilet functions
  • constant pain requiring Morphine and Percocet
  • massive scarring
  • permanent confinement to wheelchair (except for being able to take a few steps with a walker)

Inside Information:

  • There was confusion in the courtroom when the jury announced its verdict. After awarding $1,000,000 for five years of past pain and suffering they awarded only “$120,000 for 11.6 years” for future pain and suffering. Plaintiff’s counsel, Mitchel Ashley, asked the judge to bring the jury back and question them because it appeared that the jurors intended the $120,000 to be multiplied, and by 16.6 (not 11.6) years, in order to come up with the actual amount for total future pain and suffering.  Also, the jury initially awarded “$132,153.50 for 16.6 years” for future living expenses. After questioning the jurors and sending them back to deliberate twice more, it became perfectly clear that their intention was to award $1,992,000 for future pain and suffering and $2,193,748.10 for future medical expenses (in each case, for 16.6 years).
  • Defense counsel highlighted the fact there was no diagnosis of osteomyelitis in the initial admission records of the hospital and argued that the wound infection did not occur until plaintiff was at the nursing home. Plaintiff’s wound care expert, though, testified that either an MRI or a bone scan is the definitive test to evaluate osteomyelitis, neither was performed and this failure prevented early diagnosis of and treatment for chronic osteomyelitis (without which wounds were kept from healing and further debilitating infections developed).
  • The jury found that the nursing home had also been negligent in the manner in which it cared for plaintiff  and that its conduct contributed to causing plaintiff’s ulcers or osteomyelitis. The jury apportioned liability 75% to the hospital and 25% to the nursing home. Before trial, though, plaintiff had voluntarily discontinued his lawsuit as against the nursing home. Accordingly, the hospital remained the sole defendant liable to pay the damages awarded.
  • Charles Kincaid, Ph.D., testified as a life care planner expert for plaintiff (the defense did not call its own expert) and the jury essentially accepted his figures as to plaintiff’s future medical expenses.







New York’s Highest Court Rules on Damages in Multiple Fatality Motor Vehicle Rollover Case

Posted in Wrongful Death

On July 1, 2000, 60 year old Steven Motelson lost control of his 1998 Ford Explorer sport utility vehicle on Route 17 in Goshen. It rolled over nearly four times and landed on the driver’s side. The roof of the car collapsed onto Steven’s head and caused his death at the scene.

Steven’s 36 year old adult son, Gary Motelson, sitting in the front  passenger seat, ended up physically uninjured in any significant way but, after the car rolled over, Gary ended up suspended by his seat belt, hanging above his father.

In the rear of the vehicle were Gary’s sons Brian and Evan. Both were ejected. Evan (five years old) sustained minor physical injuries but devastating psychological injuries. Nine year old Brian Motelson, died the next day.

In their ensuing lawsuit, the Motelsons alleged that the crash was caused solely by Ford’s defective designs as to:

  1.  the rear seat belt system (causing the ejection of the boys),
  2.  the roof (because its structure was too weak and not capable of sustaining a rollover without crushing, which caused Steven’s death), and
  3.  the cable on the speed control system (causing the vehicle to experience a sudden unintended acceleration).

Ford contended that the accident was caused by Steven’s negligent driving and that the car was not defectively designed in any manner.

After a month long trial in Richmond County in March 2008, the jury found that Steven was not at all at fault but they rejected plaintiffs’ sudden acceleration and defective rear seat belt claims and upheld only the roof design defect claim. The effect of those findings was that the jury awarded damages only for Steven’s estate – in the sum $6,500,000 ($1,500,000 for loss of earnings to his wife plus $5,000,000 for the economic loss to his wife and children).

The jury found that both boys in the rear – Evan and Brian – were not wearing their seat belts and therefore made no award at all with respect to either of them.

Similarly, the jury made no award at all to Gary because he was physically uninjured, walking away from the crash with only a bruised collarbone. He was wearing his seat belt.

In a decision dated March 26, 2009, the trial judge ruled upon post-trial motions:

  • declining to set aside the liability determination against Ford
  • reducing the $6,500,000 in economic damages to $5,000,000  ($1,327,000 for loss of earnings, in accordance with the testimony of   plaintiffs’ expert economist Conrad Berenson plus $3,673,000 for other pecuniary damages related to Steven’s death such as the anticipated increased value of a real estate business he was expanding and the support he would have given to his heirs) and
  • awarding zone of danger extreme emotional distress damages to Gary in the sum of $3,189,055  and to Evan in the sum of $5,457,900 (both underwent substantial psychiatric treatment after the crash and experts testified as to their lifetime need for, and huge costs of, treatment and medication)

Ford appealed and in Motelson v. Ford Motor Co. (2d Dept. 2012)  the liability finding against it was again upheld; however, the appellate court reversed and dismissed the trial judge’s zone of danger awards declaring that the issue had not been submitted to the jury.

Also, the appellate court further reduced the economic damages awarded to Steven Motelson’s widow – from $3,673,000 to $674,599 ($500,000 for loss of inheritance plus $174,599, the amount testified to by plaintiffs’ expert economist as the “household services” loss).

As set forth in the seminal case of Bovsun v Sanperi (Court of Appeals 1984), zone of danger damages are recoverable in New York only where a plaintiff: (1) observes a serious injury or death of an immediate family member in his presence that is caused by the defendant’s conduct; (2) plaintiff is contemporaneously threatened with bodily harm from the same conduct; and, (3) the observation is the cause of plaintiff’s serious emotional disturbance.

On October 22, 2013, New York’s highest court agreed to hear the appeals of Gary and Evan Motelson as to the dismissal of their zone of danger awards; however, on November 18, 2014, the Court of Appeals affirmed the Appellate Division’s order. The high court noted that the issue of whether Gary and Evan sustained emotional distress injuries due to being placed in the zone of danger was not argued to the jury, addressed in the trial judge’s charge or submitted to the jury on the extensive verdict sheet.

The damages awards in this case now total $2,001,599 (before interest) as follows:

  • $1,327,000 -  loss of earnings
  •  $  500,000 – loss of inheritance
  •  $  174,599 –   loss of household services

Inside Information:

  • There was a third rear seat passenger – 21 year old family friend Mitchell Slepian. He sustained a traumatic brain injury resulting in permanent cognitive deficits, a right orbital fracture requiring surgical repair including insertion of an implant, several rib fractures, two fractured vertebrae, a fractured finger and permanent scarring. On June 19, 2007, before trial, Slepian settled his case against Ford for $1,750,000.
  • Historically,  zone of danger damages have been allowed only with respect to parents, children and spouses; grandparents were never held to be immediate family members. The parties briefed this issue (with respect to Evan) but it was not ruled upon because the zone of danger claims were dismissed on other grounds.

Appeals Court Affirms Significant Verdict for Pain and Suffering in Ankle Injury Case

Posted in Ankle Injuries

On August 11, 2008,  Fredy Figueroa was employed as a sprinkler system installer in connection with a $350,000 landscaping project in the backyard of a home in Nissequougue (Suffolk County). Fredy was excavating a two foot trench when the retaining wall next to it collapsed and pinned him inside the trench for 10 minutes, requiring several workers to dig him out and causing significant ankle injuries.

The Scene of the Accident

Fredy sued Ireland-Gannon Associates, Inc. (“IG”), the landscaping and design company that was the general contractor and construction manager of the project. He also named as defendants the electrical contractor, the masonry contractor and the homeowners but they were all either dismissed before trial or found not liable by the jury.

On May 9, 2012, the Queens County jury (plaintiff sued there because that’s where he lived) returned a verdict finding IG liable under Labor Law Sections 200 and 241(6) and common law negligence. A separate damages only trial ensued.

On May 30, 2012, the jury returned a verdict awarding plaintiff pain and suffering damages in the sum of $2,280,000 ($1,000,000 past – 3 3/4 years, $1,280,000 future – 40 years).

The defendant appealed claiming there was no basis for finding it was liable because (1) there was insufficient evidence that IG had the authority to control the manner of work resulting in the accident, as required under Labor Law Section 200, (2) there was no structure incident to the excavation, as required under Labor Law Section 241(6) and related regulations and (3) there was insufficient evidence that IG was negligent. Defendant also claimed that the damages awarded for pain and suffering were excessive.

In Figueroa v. HLM Electric, Ltd. (2d Dept. 2014), the appellate court rejected all of defendant’s arguments and affirmed the jury’s imposition of liability against IG.

Without any mention at all as to the nature of plaintiff’s injuries, the appellate court affirmed the $2,280,000 verdict for pain and suffering. Here are the injury facts:

  • non-displaced ankle fracture with ruptured syndesmotic ligaments
  • surgery #1 on 9/5/08 – open reduction and internal fixation of distal syndesmotic injury with placement of two cortical screws
  • surgery #2 on 3/13/09 – removal of broken screws and release of superficial peroneal nerve from surrounding scar tissues
  • surgery #3 on 8/14/09 – modified Brostrom procedure (repair of damaged ligaments on the lateral side of the ankle), arthroscopic synovectomy and exploration/release of superficial peroneal nerve
  • use of crutches for a year and a half and a CAM boot through 2010, use of a cane thereafter with custom made orthotics and ankle braces
  • continuing pain and limitations of ranges of motion
  • unable to return to work, play sports with young children or take long walks with his wife

Plaintiff’s testifying physician claimed he will need two more surgeries at some point in the future – one to excise a neuroma (an inflamed portion of a nerve) in his foot and the other to fuse his ankle; whereas the defense argued that (1) there was no basis for such conclusions, pointing to the facts that MRI and EMG studies were all negative for any nerve injury, (2) plaintiff never sought treatment with a neurologist for his alleged nerve pain and (3) chronic calcification (indicative of arthritis) consistent with a possible prior injury was noted by plaintiff’s surgeon in his operative report from the first surgery.

Defense counsel argued in his damages summation that (a) plaintiff’s injury was a straightforward ligament sprain that was repaired in the first surgery, (b) the second surgery (to remove broken screws) was “standard procedure” and “nothing unusual,” because the screws were simply removed and not replaced as they had “done their job” and (c) the third surgery was unnecessary because there was no objective evidence or proof of any nerve damage.

Inside Information:

  • In summations, defense counsel suggested that the jury award plaintiff $100,000 for his pain and suffering; plaintiff’s counsel suggested $4,500,000. Plaintiff’s pre-trial settlement demand was $3,000,000 against which no offer was made.
  • Defense counsel argued that the then 34 year old plaintiff was able to return to some form of work and, alternatively, that plaintiff had insufficient evidence of documented earnings or filed income tax returns to  consider an award for lost earnings. The appellate court affirmed the jury’s award for past and future loss of earnings in the sum of $471,000.
  • The trial lasted two months (with a 10 day break after the liability verdict).

Appellate Court Slashes Jury Verdict in Neck Injury Case

Posted in Neck Injuries

At 5 p.m. on Thursday January 11, 2007, Christopher Cicola was stopped for a red light on Route 112 in Medford when a Suffolk County Sheriff’s car struck his 2004 Honda in the rear.

The impact jolted the seat-belted Mr. Cicola forward and back but he was able to get out of his car on his own, declined medical attention at the scene and drove his car home.

At home that night, Mr. Cicola, then 35 years old, had throbbing pain in his neck. He treated himself with ice and the next day called an orthopedic surgeon who was able to see him three days later, thus beginning a course of treatment that included various doctors, cortisone shots, radiological studies and physical therapy and culminated in two major surgical procedures – one almost two years later and a second a year after that.

A CT scan showing the spine after the types of surgery Mr. Cicola underwent – a two level fusion at C4-6:

On February 8, 2007, Mr. Cicola filed a notice of claim (a condition precedent to a lawsuit against a municipality) and on April 10, 2007 he filed a summons and complaint claiming he’d sustained serious injuries in the accident and seeking pain and suffering damages.

On  September 17, 2007,  an order granting summary judgment on liability was issued in plaintiff’s favor and the matter proceeded to a trial on damages only starting on April 17, 2012.

After six days of trial, the Suffolk County jury returned a verdict for pain and suffering damages in the sum of $1,025,000 ($325,000 past – five years, $700,000 future – 35 years).

On appeal in Cicola v. County of Suffolk (2d Dept. 2014), the pain and suffering awards were deemed excessive and reduced to $250,000 ($150,000 past, $100,000 future).

As indicated in the court’s decision, Mr. Cicola underwent two spinal fusion surgeries to repair herniated discs:

  1. on November 18, 2008, an anterior cervical diskectomy and fusion at C4-5 (with a plate and bone graft) and
  2. on October 16, 2009, another diskectomy and fusion, this time at C5-6 (with two plates and a bone graft, after removing the previously inserted plate)

major issue at trial and then on appeal was whether and if so to what extent Mr. Cicola had pre-existing degenerative conditions in his neck.

Plaintiff argued that whatever disc or other degeneration in his cervical spine that may have existed before the car accident was minimal and played no role in his case because:

  • everyone has some normal, age-related degeneration and whatever such condition plaintiff had was minimal,
  • his treating orthopedic surgeon Paul Alongi, M.D. testified that shortly after the accident diagnostic films did not show worn out cervical discs (no “bone on bone”) or any big bony spurs,
  • there were no symptoms of pain before the accident, and
  • Mr. Cicola had never before treated with any healthcare provider for any cervical complaints

The defendants argued that plaintiff’s herniated discs were the result of degenerative disc disease that pre-existed this accident and that whatever injuries plaintiff sustained and treatment he underwent after his accident (i.e., the two cervical fusions) were directly related to degeneration because:

  • x-rays taken four days after the accident showed disc space narrowing with loss of fluid, something the defendants’ expert orthopedic surgeon Arthur Bernhang, M.D. opined usually appears in older persons and is indicative of degeneration,
  • the x-rays also showed (and plaintiff’s surgeon later removed) osteophytes (bony spurs) at C4-5, a condition the surgeon conceded was degenerative
  • plaintiff, who stood five feet 11 inches tall and weighed 210 pounds, lifted weights for 15 years often six days a week, achieving a “muscle bound” physique by “abuse of his own body,” and
  • the impact between the cars was minimal and plaintiff declined medical attention at the scene stating he felt fine

New York law provides that a plaintiff may not recover damages for an aggravation of a pre-existing condition unless it is specifically pleaded in the complaint or bill of particulars. It was not done so in this case. In his charge, the trial judge instructed the jury: “You may only award damages for injuries caused by the accident and not for any previous existing conditions.”

At the time of trial, plaintiff admitted that he’d obtained some relief following his surgeries but testified that he still experienced daily neck pain, was under the care of his surgeon every three months and took Lyrcia to manage his symptoms.  Furthermore, while he could engage in moderate exercise (including lifting weights on machines) but could no longer hike, jog or engage in any sports claiming that “physical activity is non-existent.”

Inside Information:

  • In his opening statement,  plaintiff’s attorney withdrew previously asserted right shoulder impingement and tendinosis injury claims. Defense counsel stated in his opening that the withdrawal was because of the expected testimony of a biomechanical engineer to the effect that it was “impossible” for plaintiff to have sustained such an injury given the physical dynamics of this accident.
  • There was no loss of earnings claim. Plaintiff had been a mortgage broker at the time of his accident, was out of work for one week, lost his job for non-accident related reasons and 18 months later became employed again, this time doing accounting work.
  • Plaintiff’s pre-trial settlement demand was $950,000. Defendant made no offer at all. Plaintiff’s counsel asked the jury to award $750,000 for past pain and suffering plus $800,000 for the future. Defense counsel asked the jury to award no damages at all.


Ankle Injury Pain and Suffering Verdict Reduced on Appeal

Posted in Ankle Injuries

Lidy Telsaint was 21 years old on March 21, 2007, having arrived in the U.S. from Haiti just six months earlier in order to rejoin her family here. At 8 a.m. that morning, she was on her way to English language school when she slipped and fell on ice that had formed on the sidewalk just outside her family home’s front door at 550 Dekalb Avenue in Brooklyn. Here is the accident scene:

Ms. Telsaint sustained an ankle fracture and, relying on Section 7-210 of the Administrative Code of the City of New York, she sued the building owner, the City of New York, claiming that the sidewalk was left in a dangerous, icy condition after a snowfall five days earlier.

On April 2, 2012, a Kings County jury agreed with plaintiff finding that the defendant was negligent because:

  1.    the sidewalk where Ms. Telsaint fell was in an unreasonably unsafe condition and
  2.    the ice was in existence for a sufficient period of time before the accident so that a reasonably prudent building owner should have known of it and removed it

The jurors then awarded plaintiff pain and suffering damages in the sum of $2,250,000 ($750,000 past – five years, $1,500,000 future – 44 years).

The city argued in a post-trial motion that there was no basis for liability (and that the damages award was excessive) and the trial judge agreed. He issued a decision finding that there was no valid line of reasoning that could lead to the conclusion that the city had constructive notice of the ice patch that caused plaintiff to fall. Accordingly, the judge set aside the jury verdict and dismissed the lawsuit.

The trial judge did not address the issue of damages but an appellate court has now done so. In Telsaint v. City of New York (2d Dept. 2014), the liability verdict against the defendant has been reinstated in full; however, the damages award has been modified downward to $1,250,000 ($350,000 past, $900,000 future).

There is nothing in the appellate court decision disclosing the injuries sustained by the plaintiff. Here are the injury details:

  • trimalleolar displaced and comminuted ankle fracture
  • open reduction internal fixation surgery with implantation of a metal plate and nine screws
  • transported by car from the scene to Brooklyn Hospital where plaintiff was admitted for five days followed by an additional two days the next month due to an infection requiring intravenous antibiotics
  • casted three months, then crutches for three more months
  • 12 months of physical therapy
  • two permanent keloid scars (one that is almost five inches long)
  • continuing, constant pain causing antalgic gait (limp) and an inability to stand or walk for long periods of time
  • substantial range of motion deficits, especially external rotation
  • need for future surgery to remove painful hardware

The defendant argued that plaintiff made a good recovery and therefore the jury’s pain and suffering awards were excessive, among other reasons, because  she finished her schooling and worked in clothing stores and as a home health aide (for which she took and passed a physical examination). Plaintiff countered that she stopped work in one store because of pain from standing too long, the physical had nothing to do with her ankle and her home health aide job had not included any patient lifting or other physically taxing responsibilities.

Inside Information:

  • In closing arguments, defense counsel told the jurors that if they reach the issue of damages then “plaintiff’s attorney will sit up here and ask you for money. He may ask for large amounts of money. $25,000 -$50,000. He may ask for a lot of money.” In fact, plaintiff’s attorney asked the jury for $750,000 for past pain and suffering plus $1,500,000 for the future – the exact amounts they awarded.
  • The trial judge instructed the jury that plaintiff had a life expectancy of 53 years; however, their award for future pain and suffering encompassed only 44 years.
  • The six jurors were split 5-1 with the holdout later telling the judge that there was “not enough evidence” because there were “no witnesses that actually saw the incident happen.”
  • At the time of trial, plaintiff was enrolled at Medgar Evars College working towards an associate’s degree in biology while working part-time at Macy’s in Brooklyn.
  • Plaintiff submitted to a physical examination by an orthopedic surgeon for the defense whose report was exchanged; however, the doctor did not testify and, in the trial judge’s instructions to the jury as to the law in this case,  a so-called missing witness charge was given. Jerry Lubliner, M.D. testified for the plaintiff as an expert orthopedic surgeon.

Hand Injury Pain and Suffering Award Affirmed

Posted in Hand Injuries

On June 11, 2008, Rose Walker was headed home on a subway train in Brooklyn after her night shift as a nurse’s aide at a Manhattan hospital. She noticed a young girl alone and crying who had been separated from her brothers on the way to school. Ms. Walker helped the child find the train’s conductor in his forward cabin.

The cabin door was held open by the conductor with his body but when he moved away, the door slammed shut onto Ms. Walker’s left hand causing serious injuries.

Walker sued the transit authority claiming the conductor negligently allowed the door to close when he unexpectedly walked away from it. The defendant argued that Walker was at least partially responsible because she should have kept her hands free from the door’s path. In a bifurcated trial in 2011, the Kings County jury found that the transit authority was 100% at fault.

The jury then awarded plaintiff pain and suffering damages in the sum of $270,000 ($250,000 past – 3 1/2 years, $20,000 future – 30 years).

Both the liability verdict and the damages award have been affirmed in Walker v. New York City Transit Authority (2d Dept. 2014).

The court’s decision discloses that plaintiff sustained a crush injury to a finger requiring two surgeries and leaving her with continuing pain, numbness, tremors, loss of strength and loss of motion in her finger and hand. Here are additional injury details:

  • comminuted fracture of the distal phalanx of plaintiff’s left (non-dominant) index finger with nail bed laceration requiring surgical debridement, removal of the nailplate, repair of the laceration, complex repair of the avulsion and closed treatment of the fracture (under local anesthesia)
  • plaintiff was discharged to home on the day of the accident with a sling, dressings and pain medication
  • physical therapy for 15 months until insurance benefits ran out
  • second surgery (with axillary block) on 4/1/09 – capsulectomy (removal of scar tissue) requiring additional physical therapy that was ongoing as of the trial date
  • unable to tie shoes, zipper, make a fist or floss teeth
  • permanent scarring
  • unable to return to work as a nurse’s aide

Plaintiff was fired from her job in 2009 because she was physically unable to perform her duties as a nurse’s aide and there was no light duty job that would accommodate her physical restrictions. She then got her masters degree in social work and as of trial was looking for a job in that field; however, she remained unemployed since the date of her firing.

Defense counsel argued that there should be no award at all for future loss of earnings because plaintiff could have returned to work as a nurse’s aide, she was likely to become employed as a social worker and she “chose a time she is going to return to work.” Plaintiff’s attorney suggested an award of $350,000 (based roughly on plaintiff’s pre-accident annual salary of $37,000 and about nine years of work life expectancy) but the jury declined to make any award at all for future loss of earnings.

Plaintiff’s expert orthopedic surgeon, Jerry Lubliner, M.D., testified that Ms. Walker’s limitations, pain and range of motion deficits are all permanent and that she will need two more scar tissue release surgeries  in the future. The defense orthopedic surgeon, Jay Nathan, M.D., disagreed stating that more surgery is not indicated. The jury awarded $15,000 for future medical expenses over a three year period.

Inside Information:

  • In closing arguments, plaintiff’s attorney asked the jury to award $575,000 for past pain and suffering plus $475,000 for the future; defense counsel suggested $50,000 for past pain and suffering plus $20,000 for the future.
  • Plaintiff’s expert economist testified that her past lost wage and fringe benefits were $86,644; however, the jury awarded $130,000. The trial judge issued an order reducing this aspect of the damages verdict to the proper amount – $86,644.

Appellate Court Reduces Pain and Suffering Verdict in Back Injury Case

Posted in Back Injuries

On June 23, 2008, Ronald Weathers was in a car accident when the Dodge Neon he was driving was struck by a left turning SUV driven by Alex Rios.

The accident scene – the intersection of Shell Road and Avenue Z in Brooklyn:

Mr. Weathers, then a 55 year old automobile mechanic for many years who’d been laid off six months earlier when his place of employment closed down, sustained a back injury and was in pain but declined medical treatment. Instead, his wife and son came to the scene, drove him home and he sought treatment at a local hospital the next day and from a physician the day after that. During the next six months or so, Weathers treated with doctors and physical therapists but his pain persisted.

In the lawsuit he commenced in 2010,  Weathers was granted summary judgment on liability. The matter then proceeded to a damages only trial.

Defendant argued that plaintiff’s injuries from the accident were were merely strains or sprains of his back that did not merit any pain and suffering award at all. After deliberations, though, on April 17, 2012, the Kings County jury, in response to the judge’s charge, found that Weathers had sustained a back injury that was a significant and permanent consequential limitation of use and then awarded plaintiff pain and suffering damages in the sum of $1,450,000 ($450,000 past – four years, $1,000,000 future – 20 years).

The defendant appealed arguing successfully that the award was excessive. In Weathers v. Rios (2nd Dept. 2014), the appeals court determined that the proper amount for pain and suffering damages in this case is $800,000 ($350,000 past, $450,000 future).

The court’s decision neglects to inform readers about the injuries sustained. Here are the injury details:

  • herniated and bulging discs at L3-4 and L4-5
  • physical therapy for three months
  • three epidural steroid injections
  • epidurogram (without anesthesia) – a painful diagnostic procedure in which contrast dye was injected into the disc space under fluoroscopic guidance
  • percutaneous discectomy at L3-4 and L4-5 followed by additional physical therapy and pain management treatment
  • continuing back pain (though no longer radiating to leg) with respect to which plaintiff’s surgeon, pain management specialist Andrew Davy M.D., testified that he proposed implantation of a spinal cord stimulator
  • inability to lift heavy objects or to bend or sit for long periods of time
  • diminished ability to play with grandchildren, take walks with his wife or cook

A percutaneous discectomy is a minimally invasive technique used to surgically treat disc bulges, protrusions and small contained herniated discs. The surgeon goes in through the skin with a needle like instrument to remove disk material that may be pressing against nerve roots causing pain. The procedure can be performed in an outpatient environment with most patients returning to work within a week. Here is an illustration of the procedure in which an endoscope is inserted through the skin to remove herniated disc material:

The defendant highlighted several facts that he contended demonstrated that whatever injuries plaintiff had were from degenerative conditions in his spine and that the jury’s pain and suffering awards were excessive:

  1. Plaintiff stopped seeing his two treating doctors a year before trial and his physical therapists three and a half years before trial.
  2. Plaintiff’s medical history before the accident  included rheumatoid arthritis of his left knee, both wrists, hands and his fingers for which he took weekly pain medication,  diabetes, thyroid disease and prostate cancer (for which he underwent radiation treatment that began a month before the accident).
  3. The surgery plaintiff underwent was minor involving no hospitalization, general anesthesia or implanted hardware or grafts.

Inside Information:

  • In their summations, plaintiff’s attorney asked the jurors to award $1,450,000 for pain and suffering (the exact amount they awarded) whereas defense counsel argued that plaintiff’s injuries did not merit any pain and suffering award at all.
  • At the time of trial, defendant’s offer to settle was $15,000 whereas plaintiff’s demand was $100,000 (the defendant’s insurance policy limit). Plaintiff’s counsel contended that the defendant’s insurance company refused to negotiate in good faith and he placed a statement on the record to that effect.  Contending that the carrier should have known a verdict well in excess of its policy limit would ensue and thereby expose its insured to personal liability, plaintiff claims that the carrier should be ordered to pay the full final verdict sum, even though it’s well in excess of the policy limits.
  • Plaintiff sought unsuccessfully to mention to the jury that the defendant’s expert radiologist had her license suspended in 1987 when she forged another doctor’s name on prescriptions. The trial judge ruled that the incident was too far in the past and thus inadmissible.

Appellate Court Reduces Pain and Suffering Award in Multi-Trauma Car Accident Case

Posted in Back Injuries, Knee Injuries, Neck Injuries, Shoulder Injuries

On June 25, 2007, at about 8:30 a.m., Melody Sweet was driving her 1986 Mustang convertible on Innis Avenue in Poughkeepsie at a speed of 25-30 miles per hour when Christopher Rios pulled his sport utility vehicle out of a parking space on the side of the road and collided with her vehicle.

A red 1986 Mustang convertible (Ms. Sweet’s was pink and was totaled in the accident):

The crash caused neck, back, shoulder and knee injuries to the then 47 year old Ms. Sweet. She was transported by ambulance to the local hospital where she was treated for low back pain and a contusion to her right shin and tibia. Twelve days later, Ms. Sweet began an extensive course of medical treatment that included two surgical procedures.

In her ensuing lawsuit, on April 13, 2011, a Dutchess County jury found Mr. Rios fully at fault and awarded Ms. Sweet pain and suffering damages in the sum of $720,000 ($100,000 past – four years, $620,000 future – 31 years).

The defendant appealed, claiming that the amount awarded for future damages was excessive. The appellate court agreed, in Sweet v. Rios (2d Dept. 2014), and ordered a reduction of the future damage award from $620,000 to $465,000. The court thus determined that the proper total pain and suffering award for plaintiff is $565,000 ($100,000 past, $465,000 future).

The court’s decision mentions some of the injuries; however, here are the injury details:

  • Neck and Back – Cervical disc protrusions at C4-5 and C5-6 and lumbar disc bulges at L4 and L5-S1 that required four trigger point injections, extensive physical therapy, pain management and chiropractic treatment and left plaintiff with significant range of motion deficits that her doctors opined are permanent and, as to her back, Ms. Sweet said left her with radiating and stabbing pain that continues to get worse. One of her doctors opined that she will need microdiscectomy lumbar surgery in the future.
  • Left Shoulder – Arthroscopic surgery on 11/1/07 to repair the superior labrum, anterior and interior capsulorraphies, glenoid chondroplasty, rotator cuff debridement, partial synovectomy, removal of loose bodies, acromioplasty and distal clavicle resection. Despite the surgery, and a series of three trigger point injections thereafter, Ms. Sweet testified she cannot lift her left arm above her shoulder and has continuing pain and stiffness. Her doctors testified she has significant range of motion deficits, her injury is permanent and “there is no doubt” she will require major reconstructive surgery or replacement.
  • Right Knee – Arthroscopic surgery on 3/20/08 to repair or trim back meniscal tears. The surgery was successful, plaintiff regained full range of motion in her knee, sharp pain and snapping resolved and her attorneys on appeal essentially abandoned this aspect of her claim.
  • Work Loss – Ms. Sweet had been a waitress for 30 years in and around the Poughkeepsie area. She missed two days of work right after the accident before returning on limited duty for the next few months. Thereafter, though, she never returned and claimed she is permanently unable to do so because of the injuries from the accident.
  • Activities of Daily Living – Plaintiff testified that she can no longer enjoy her recreational activities such as hiking, walking in the woods and ice skating. Also, she said she was socially isolated because her social life had revolved around her work and she lost her friends.

The defendant’s expert orthopedic surgeon opined that plaintiff sustained no injury to her neck, the injury to her back was merely a sprain with temporary aggravation of degenerative disc disease, her shoulder conditions were pre-existing and not caused by the accident and her knee injury was not caused by the accident. He noted that significant obesity (plaintiff was five feet seven inches tall and weighed 260 pounds at the time) was a more likely cause of many of plaintiff’s complaints.

Inside Information:

  • Prior to the accident, Ms. Sweet had never sought medical treatment nor had she experienced any medical problems with her neck, back, left shoulder or right knee.
  • Two years after this accident, Ms. Sweet was involved in a slip and fall accident at a grocery store in which she hit her face, cheek bone and jaw causing broken dentures and a ripped off toenail.
  • Ms. Sweet was determined to be disabled by the Social Security Administration and at trial was collecting Social Security Disability (“SSD”) benefits of $681 per month.
  • The jury also awarded (and the appellate court sustained) past and future lost earnings in the sum of $234,000 ($76,000 past, $158,000 future -  7.9 years).
  • In denying a motion to set aside the jury verdict, the trial judge stated: “This was somewhat of an unusual case by virtue of the fact that plaintiff’s pleasures in life to a great degree revolve around her work which she could no longer perform…. In many ways, her pleasures in life revolved around being at the diner with her friends …. In effect, her social life came to a halt.”
  • Plaintiff’s pre-trial settlement demand was $750,000; defendant’s offer was $60,000.

Significant Pain and Suffering Verdict Upheld on Appeal in Eye Surgery Case

Posted in Eye and Vision Injuries, Medical Malpractice

On March 25, 2004, Johnson Devadas, a 25 year old pharmacist, consulted with ophthalmologist Kevin Niksarli, M.D. to determine his candidacy for Laser-Assisted In-Situ Keratomileusis (known as LASIK – a procedure that uses a laser to correct certain vision problems and reduce a person’s dependence on glasses or contact lenses).

Dr. Niksarli evaluated Mr. Devadas and found him to be a good candidate for the procedure which was then performed upon both of his eyes on April 7, 2004. He followed up with the doctor the next day, a week later and a month later.

On February 21, 2007, Devadas next (and last) returned to the doctor with complaints of blurriness and double vision. He’d developed ectasia, a progressive thinning and bulging of the corneas that causes diminished visual function.

On May 31, 2007, Devadas filed a medical malpractice lawsuit against Dr. Niksarli claiming that the doctor failed to disclose the risks of the procedure and that he would not have undergone the surgery had adequate disclosure been given beforehand.

It turns out that Devadas had a mild or early form of keratoconus known as forme fruste keratoconus that (a) was not but should have been diagnosed by Dr. Niksarli and (b) contraindicated the LASIK surgery.

On June 10, 2009, after a nine day trial, the Manhattan jury returned a verdict in plaintiff’s favor finding that the defendant committed malpractice by (1)  performing surgery that was contraindicated and (2) failing to obtain informed consent prior to the surgery.

The jury awarded pain and suffering damages in the sum of $3,100,000 ($100,000 past – five years, $3,000,000 future -  45  years).

On appeal, the defense argued that the pain and suffering award was excessive because after the surgery plaintiff had near 20/20 visual acuity.

Plaintiff persuasively countered, though, that visual function has two components – quantity (i.e., visual acuity) and quality – and that his visual quality was so impaired that it left him with many permanent, significant deficits including:

  • double vision
  • blurry vision (with resulting headaches)
  • starbursts and halos
  • chronic dry eyes (limiting his ability to wear contact lenses to six hours a day and leaving him with severely diminished functional vision for 18 hours a day)
  • poor night vision resulting in inability to drive at night (after contacts are removed due to intolerance)
  • inability to resume recreational bowling or billiards
  • diminished ability to complete household tasks including cooking and home repairs

In Devadas v. Niksarli (1st Dept. 2014), the appellate court affirmed both the liability finding and the pain and suffering damages awards.

In addition to pain and suffering damages, Devadas was awarded (and the appeals court sustained)  $60,000 for past loss of earnings and $20,000 a year for 37 years for future loss of earnings. These awards were based, in part, on plaintiff’s inability to fill as many prescriptions as he used to and the additional costs incurred when he had to hire a pharmacy technician to serve as another pair of eyes to double-check his accuracy.

Inside Information:

  • The loss of consortium claim was dismissed on appeal because the continuous treatment doctrine that allowed plaintiff to avoid the statute of limitations defense (2 1/2 years in medical malpractice cases) has been held by the courts to be personal to the recipient of the medical treatment and does not extend to spouses.
  • Plaintiff had signed an informed consent form document on the day of surgery but claimed that the administration of Valium shortly before he reviewed and signed the form was inappropriate. Also, there was a handwritten informed consent note that plaintiff argued, through an expert forensic chemist who specializes in the examination of questioned documents, was created by the defendant years after the surgery and intentionally artificially aged by him.
  • Plaintiff’s attorney, Todd J. Krouner, has successfully prosecuted dozens of LASIK and related eye medical malpractice cases and is the premier attorney for LASIK cases in New York.