As regular readers know, we rail against appeals court judges who issue decisions that fail to explain why they decrease (or increase) pain and suffering awards. Under CPLR 5501 and 5522, they are required to explain their reasoning when they rule on requests to decrease or increase awards.
In a new medical malpractice lawsuit decision, Walsh v. Brown (2nd Dept., 2010), the plaintiff has been left with $700,000 less than the $900,000 she was awarded after trial and without any adequate explanation why.
After being diagnosed with endometrial cancer, 66 year old retired schoolteacher Margaret Walsh consulted with Carol Brown, M.D., a gynecologic oncologist at Manhattan’s Memorial Sloan-Kettering Cancer Center. The doctor recommended and on February 14, 2005 performed a total abdominal hysterectomy, bilateral salpingo-oophorectomy and lymph node dissection – open surgery to remove the uterus, cervix and ovaries.
Here’s what the hysterectomy surgery looks like while it’s underway:
To perform the surgery, doctors used retractors, like the ones illustrated above, in order to obtain and maintain adequate exposure of the surgical site. That’s standard operating procedure. In this case, though, a retractor was improperly placed on and compressed the right sided femoral nerve injuring it and leaving Mrs. Walsh with femoral neuropathy.
The femoral nerve is located in the leg and supplies the muscles that help straighten the leg. It provides sensation to the front of the thigh and part of the lower leg.
The jury in Walsh v. Brown determined that:
- the doctor was negligent in her placement of a retractor against the femoral nerve,
- doing so injured the nerve (femoral neuropathy), and
- plaintiff was entitled to a past pain and suffering award in the sum of $750,000 (4 years).
The jury declined to make any award at all for future pain and suffering.
On competing post-trial motions (plaintiff sought an increase in future damages while the defendant sought a decrease in past damages), the trial judge issued an order that $150,000 be added to the verdict – new total $900,000 ($750,000 past, $150,000 future). She did so because the jurors improperly ignored evidence (including the defense doctor’s testimony that plaintiff has permanent residual weakness in her leg).
Defendant appealed claiming that $750,000 was unreasonably excessive for past pain and suffering and that the trial judge should not have awarded any future damages at all. In addition, the defense claimed all along and on appeal that there was insufficient proof of any negligence; however that argument was rejected by the jury and all of the judges. As to the amount of damages, though, the plaintiff fared quite poorly with the appellate panel. Without any explanation at all, the judges reduced the past pain and suffering award from $750,000 to $200,000 and they reinstated the award of zero for future damages.
As to past pain and suffering, here’s what Mrs. Walsh endured for four years:
- an extra two weeks or so as an inpatient after hysterectomy surgery, 10 weeks in a nursing home, home therapy for 12 weeks and a year of outpatient physical therapy
- continued weakness of her quadriceps and hip flexor muscles necessitating use of a quad cane to walk
- sensory loss and absent knee jerk reflexes
- neuropathic pain syndrome – burning pain in her thigh and cramping
Here are the quad cane and other types of canes that are prescribed to help injured or disabled people walk:
Mrs. Walsh was a previously active woman who exercised regularly on a treadmill but now she’ll never able to do so again. The jury saw fit to award $750,000 for her pain and suffering to the time of trial, the trial judge approved and then the appellate judges simply and without explanation concluded that $500,000 should be lopped off and Mrs. Walsh should get only $200,000 for her past pain and suffering.
As to future pain and suffering, there was testimony from doctors for both sides that the injury was permanent and that plaintiff still has right leg weakness which affects her ability to go up and down stairs, kneel and bend her knees. Mrs. Walsh admitted that she is much improved but claimed she still needs a quad cane to walk.
In overturning the trial judge’s decision to award future damages, the appellate court cited DeVito v. Ho (2nd Dept. 2006), however that case dealt with a simple wrist fracture (no surgery) that required no treatment after six months. Although DeVito claimed some residual weakness, there was other testimony that by the time of trial four years later, all of his accident injuries had healed. DeVito received $60,000 for past pain and suffering and nothing for future damages. Clearly, that case is distinguishable from Walsh v. Brown in that here the defense expert acknowledged permanence and continuing disabilities.
- Mrs. Walsh had orthopedic problems that pre-existed her hysterectomy: left hip osteoarthritis that needed surgery and many years before she had right knee pain from arthritis that was asymptomatic for the five years or so before surgery. The defense argued at trial and on appeal that because of these prior issues, her right leg at trial was no worse than it had been before the surgery so no future damages should be awarded.
- There was one case, Lalanne v. Nyack Hospital (2nd Dept., 2007), that both parties referred to in their appellate briefs as conclusive on the issue of past damages. It also involved medical malpractice in a hysterectomy that caused a femoral neuropathy. The 49 year old plaintiff there was awarded $750,000 for her pain and suffering ($150,000 past – 4 years, $600,000 future). The case was appealed but not on the issue of damages. Mrs. Walsh’s lawyer, John Bonina, Jr., argued that Lalanne v. Nyack Hospital established that $750,000 for total pain and suffering for a middle aged woman with femoral neuropathy was within the range permitted to stand by the appellate court; while defendant argued that the case established $150,000 as the upper limit for Mrs. Walsh’s four years of past pain and suffering.