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New York Injury Cases Blog

News & Updates on Pain & Suffering Verdicts & Settlements

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.

Medical Malpractice Award Slashed on Appeal

Posted in Medical Malpractice

Adelei Padilla, a 31 year old administrative assistant, had been feeling right flank pain for several weeks when she was referred to a surgeon who diagnosed her with symptomatic cholelithiasis (gallstones). Accordingly, on March 30, 2009, she  underwent a laparoscopic cholecystectomy (gallbladder removal surgery) at  Montefiore Medical Center in the Bronx. She was discharged to home that night.

Unfortunately, Ms. Padilla returned to the hospital 10 days later complaining of severe pain radiating to her back as well as a fever, nausea, vomiting and chills. She was diagnosed with a perforated iliac artery that caused a pseudoaneurysm (a hematoma that occurs outside of an artery or vein) and a retroperitoneal hematoma. She was in a life-threatening situation and had to undergo emergency surgery to insert a stent into the artery. The surgery was successful and Ms. Padilla was discharged from the hospital after three days.

A lawsuit was brought against the surgeon who performed the gallbladder surgery claiming that he deviated from acceptable medical practice when the needle he was using to probe into the gallbladder punctured the iliac artery. It took the Bronx County jurors only 40 minutes to return their verdict on February 13, 2013 finding malpractice had occurred and awarding past pain and suffering damages (four years) in the sum of $800,000.

The jurors were not presented the issue of future pain and suffering damages because the trial judge had ruled that there was insufficient medical evidence from plaintiff’s expert as to how any of her current complaints of pain were associated with either of her surgeries.

The defense argued that there was insufficient evidence to support the malpractice finding and Justice Norma Ruiz agreed and issued a  post-trial decision dismissing the case.

On appeal, though, in Padilla v. Montefiore Medical Center (1st Dept. 2014), the jury’s liability finding was reinstated although the damages award was reduced to $225,000.

The appellate court judges apparently agreed with the defense argument that plaintiff’s pain was limited in scope and duration and that her most significant pain occurred early in the post-operative period following the gallbladder surgery when she was expected to experience pain from the surgery itself. Also, there was no expert testimony associating continued pain following the resolution of the hematoma with the surgeon’s negligence so, the defense argued, there was no objective basis for awarding damages for pain and suffering more than one month post-stenting.

Following the vascular surgery, Ms. Padilla said she had groin and hip pain traveling down her right leg (that continued through to the date of trial and left her unable to run or perform at the gym cardiovascular activities she used to engage in two to three times a week) but she also was well enough to return to her social services job within about three weeks. At trial, she testified she took public transportation to work each day and was able to take care of her home (laundry, shopping, cooking and cleaning) and her nine year old daughter.

Inside Information:

  • The jury of six included two emergency medical technicians and a volunteer worker at the the defendant hospital.
  • Plaintiff’s pre-trial settlement demand was $60,000; her attorney asked the jury for $750,000.

Appeals Court Affirms Substantial Award in Excessive Force Case against State Trooper

Posted in Facial Injuries, Neck Injuries

On December 20, 2001, at about 8:30 a.m., David Reynolds was driving on Ridge Road in Wolcott, New York when he was pulled over and arrested by a New York State trooper for driving without a valid license.

An altercation ensued (there was a 10 year old history of hostility between Reynolds and the trooper)  and the trooper repeatedly banged Mr. Reynolds’ head  against the car’s trunk while Reynolds was handcuffed. He was then released after the trooper discovered that Reynolds had a temporary license in his wallet.

Mr. Reynolds, then 37 years old, drove himself to the local hospital where he complained of head and neck pain. Here is what Mr. Reynolds looked like in a photo taken the day after the incident:

Reynolds filed a lawsuit against New York State claiming that the trooper had no reasonable cause to arrest him and that his injuries were caused by the trooper’s use of excessive force.

After a bench trial, Court of Claims judge Nicholas V. Midey, Jr. issued a decision on liability in claimant’s favor dated December 23, 2009  and directed that a new trial to be held on the issue of damages only.

On May 14, 2012, following the the damages trial, the judge awarded damages in the sum of $1,017,500 as follows:

  • $225,000 past pain and suffering – 10 years,
  • $475,000 future pain and suffering – 30 years
  • $17,500 past medical expenses
  •  $300,000 future medical expenses

Now, on appeal, the damages decision has been affirmed in Reynolds v. State of New York (4th Dept. 2014).

As set forth in the appellate court decision, claimant sustained three cervical herniated discs and a closed head injury. Here are additional injury details:

  • presented at hospital on the night of the incident with a swollen, bloody and blackened left eye, a bump on his head (permanent) and complaints of head and neck pain for which he was given a neck brace and pain medication
  • continuing headaches and head pain with memory problems, dizziness, nightmares and stuttering
  • continuing neck pain with radiculopathy and diminished range of motion due to herniated discs at C4-5, C5-6 and C6-7
  • continuing need for narcotic pain medication
  • unable to hunt, play sports, drive a car, clean house or cook

His doctors recommended that Reynolds undergo two separate cervical fusion surgeries but opined that even with successful surgery he will always have cervical pain and related numbness (though surgery would alleviate some of that), he will not regain full range of motion and he will have permanent lifting restrictions.

Inside Information:

  • Reynolds made no claim for lost earnings as he had  injured his knee in 1984 in a potato harvester accident and had been on disability ever since.
  • The State argued that Reynolds failed to mitigate his injuries by ignoring medical advice (as to cervical fusion surgery) and engaging in post-injury manual labor (riding a mower for a few months in 2003 and shoveling roofs and driveways in 2005 and 2006).
  • Reynolds claimed lumbar herniations requiring surgery were casually connected but neither the trial judge nor the appellate court agreed, in part because he did not complain of back pain for two years after the assault.
  • At the time of trial, Reynolds was self-medicating by smoking marijuana instead of taking prescribed narcotic medications such as Vicodin that he said were no longer effective.

 

Substantial Awards in Medical Malpractice Case for Pre-Death Pain and Suffering and Costs of Care of Decedent’s Disabled Adult Child

Posted in Medical Malpractice, Wrongful Death

On Wednesday June 18, 2008, Nam Yoon Lee woke up with stabbing pain on the right side of his stomach. He went with his wife to the emergency room at a hospital in Queens where morphine was administered, tests led to a diagnosis of gallbladder disease and a plan was made to surgically remove his gallbladder (a cholecystectomy).

Mr. Lee, 60 years old, was admitted to the hospital’s surgery service and, in advance of the surgery, he was NPO (no food, intravenous fluids and antibiotics only). For unknown reasons, and with horrible consequences, Mr. Lee’s surgery never took place. Over the next several days, his NPO status was maintained and Mr. Lee’s hunger and thirst progressed into great pain and then breathing itself became difficult. He feared he was dying. His fears were justified.

On Sunday June 22nd, Mr. Lee developed sepsis (because of the negligent failure to remove his infected gallbladder), went into full cardiac arrest and died at about 4 p.m. that day after attempts to revive him failed. He is survived by his then 56 year old wife, Young Sook Lee and his then 29 year old daughter, Jae Yon Lee.

Laparoscopic surgery to remove a gallbladder is relatively simple and should have been performed on Mr. Lee:

A lawsuit was filed on behalf of Mr. Lee’s estate against the hospital and three physicians. Defendants conceded liability and on December 23, 2011, after 18 days of trial, a Queens County jury heard the case and rendered a verdict for $7,579,560:

  • $5,000,000 for pre-death pain and suffering (from 6/18/08 through 6/22/08)
  • $336,000 for past economic loss to decedent’s wife and daughter (from 6/22/08 to the date of the verdict)
  • $2,243,560 for future economic loss to decedent’s wife and daughter

The trial judge ordered a reduction of the pain and suffering award to $3,750,000.

Now, in Lee v. New York Hospital Queens (2d Dept. 2014), the appellate court has affirmed the $3,750,000 pain and suffering award as well as the $2,243,560 future economic loss award while reducing the past economic loss award to $250,000. The total affirmed award stands at $6,243,560.

As set forth in the court’s opinion, the substantial pain and suffering award was based upon evidence that from the time of Mr. Lee’s admission to the hospital until his death four days later he complained of pain, discomfort, hunger, difficulty breathing and feeling that he was dying. Here are additional injury details:

  • continuing inflammation of gallstones causing fevers, chills, sharp pain and sickness
  • extreme anxiety due to daily delays of gallbladder surgery
  • shivering, wheezing, shortness of breath and whole body shakes (rigors) starting about 12 hours before death (as systemic sepsis developed)
  • screaming, saying “I feel like I’m dying” and I am in “so much pain” (about two hours or so before death)
  • critical oxygen deprived state requiring a rapid response team which found Mr. Lee violent and in need of physical restraint
  • intubation an hour before death with medication that left him paralyzed for about four minutes, aware of the tube down his throat which made him gag, unable to speak and produced conscious suffering and terror
  • when the paralytic medication wore off, Mr. Lee became able to move and he reacted by thrashing and pulling out the tube; his brain then succumbed to oxygen deprivation and he was aware he was asphyxiating for four more minutes until he was unconscious and went into cardiac arrest

The $2,243,560 affirmed award for future economic loss was based upon the claim that a licensed practical nurse was needed to care for Mr. Lee’s daughter, Jae, over the course of the 19 years of Mr. Lee’s life expectancy before he died. Jae was 32 years old at the time of trial but was unable to live on her own due to mental disabilities that, among other things such as epilepsy induced seizures and schizophrenia, left her with an IQ of an eight year old child. Mr. Lee had been her primary caregiver. At the time of trial, Jae was living at Hope House, which is for people who are mentally retarded and disabled, but her mother wanted her to return home and expert psychiatric testimony indicated that home-care with a nurse would be best.

Inside Information:

  • Mr. Lee had worked part-time as a salesman earning about $12,000 a year but apparently failed to pay income taxes after 2007. In his closing argument, defense counsel accused plaintiff of lying under oath based upon the amount alleged for lost earnings in the bill of particulars and suggested that Mr. and Mrs. Lee “committed fraud” and that the lawsuit was an opportunity to “get rich” provided plaintiff can “get the jury to go along with this.”
  • Defendants’ concession of liability was the subject of an intense dispute (as to which of the three doctors were conceding and what facts as to liability, if any, could be brought out at trial) and caused the trial judge to say to defense counsel “I will not allow this farce to continue…. I have never in my life experienced such a farce ….”
  • Mr. Lee was also survived by an adult son who was the administrator of his estate but no individual claim was made on his behalf.