In the morning of October 27, 2005, Mary Colon, then 49 years old, escorted her elderly neighbor to an eye doctor’s appointment at 1101 Pelham Parkway North in the Bronx. After they arrived, Mrs. Colon went outside to buy a newspaper but when she was walking on the sidewalk outside the doctor’s office, she fell and sustained an ankle fracture.
Here is the doctor’s office building outside of which Mrs. Colon fell:
In the ensuing lawsuit – Colon v. New York Eye Surgery Associates, P.C. (Supreme Court, Bronx County; Index # 8832/06) – Mrs. Colon claimed that there was a height differential between the sidewalk and the adjacent grassy verge that constituted a dangerous condition and caused her to fall when she moved to make room for people coming towards her.
While the facilities manager for the property owner (the medical practice) stated he would have back-filled the inch or two depressed area to make it level had he seen it before the accident, he denied ever seeing it before during his twice a day rounds around the property. And, anyway, he argued, the "defect" was so trivial and so obvious that the accident was no one’s fault except plaintiff’s.
On January 14, 2009, a Bronx County jury found the defendant liable for the accident and awarded damages for Mrs. Colon’s pain and suffering in the sum of $2,225,000 ($750,00 past – 3 years, $1,500,000 future – 29 years).
The defendant made a post-trial motion seeking to set aside the liability finding on the ground that the verdict was contrary to the weight of the evidence and, in the alternative, to reduce the damages award on the basis that it was excessive.
The judge declined to set aside the liability finding but ruled that no more than $950,000 ($300,000 past, $650,000 future) was sustainable for pain and suffering damages.
This week, both the liability finding against the defendant and the reduction in damages to $950,000 were upheld on appeal in Colon v. New York Eye Surgery Associates, P.C. (1st Dept. 2010).
Mrs. Colon’s injuries appeared at first to be limited:
- she did not seek medical attention until two days later at a local emergency room
- her initial diagnosis was an avulsion fracture of her distal right fibula
- the E.R. doctor applied a soft cast and a week later a hard cast was applied
Here is a drawing of an avulsion fracture (of the tibia) with a bending fracture of the fibula:
Mrs. Colon did not require any surgery for her fracture; however within two weeks of the accident, a doctor noted that she had some components of Reflex Sympathetic Dystrophy (RSD) – a painful, permanent and debilitating neurological condition that affects the skin, muscles, bones and joints. Other doctors later came to the same conclusion.
The orthopedic surgeons who testified at trial for each side disagreed over whether plaintiff had RSD at all:
- the transcript of the testimony of Albert Graziosa, M.D. for the plaintiff is here
- the transcript of the testimony of Philip Keats, M.D. for the defense is here
Plaintiff testified at trial that her symptoms included:
- burning, itch, achy sensations at the trauma site traveling to other areas of the body
- hypersensitivity to touch causing severe, protracted pain and discomfort
- painful sensations in bed similar to those of water running down her leg
- hyperpigmentation or color changes in the skin
She also claimed she had a permanent limp and required periodic use of a cane. She’d been an active runner before the accident.
While RSD injuries and symptoms vary quite widely from one person to the next (and they manifest in different parts of each person’s body), the appellate court did not discuss any of the cases which have dealt with pain and suffering damages for injuries leading to RSD, most of which we have discussed, here, here and here, such as:
- Jeffries v. 3520 Broadway Management Co. (1st Dept. 2007)[$1,500,000]
- Jones v. Davis (3rd Dept. 2003)[$1,100,000]
- Brown v. City of New York (2nd Dept. 2003)[$1,200,000]
- Valentine v. Lopez (3rd Dept. 2001)[$750,000]
The RSD sustained by Mrs. Colon was clearly the overwhelming injury, as opposed to the fracture of her ankle and that’s what led the appellate court to approve $950,000 for her pain and suffering.
Ankle fracture cases rarely involve or lead to RSD and sustainable pain and suffering awards for cases with significant ankle fractures with one or two surgeries but without RSD generally will fall in the $300,000 to $600,000 range, as we discussed here and here.
Naturally, there are outliers and very severe ankle fracture cases can result in sustainable pain and suffering verdicts of $1,000,000 or more, for example, in:
- Conway v. New York City Transit Authority (2nd Dept. 2009)[$1,000,000]
- Boulukos v. 213 P.A.S., LLP (1st Dept. 2004)[$1,500,000]
- The defense sought to preclude Dr. Graziosa from testifying that plaintff had RSD because his report exchanged prior to trial merely stated that she had "some components" of RSD. The doctor was permitted to testify, though, because there were other doctors who thought she had RSD too and their records were in evidence and relied upon by Dr. Graziosa.
- Before the verdict, plaintiff had offered to settle for $500,000; however, the defendant offered only $40,000