Rosalie David, a 57 year old schoolteacher, was a front seat passenger in a car driven by her husband on January 25, 2003 in Cortlandt Manor, New York. Waiting to make a left turn, their car was rear ended by a car driven by Dennis Astrologo.
Complaining of pain in her right shoulder, Mrs. David was taken by ambulance to the local hospital where she was x-rayed (negative), treated (with a sling and pain medication) and released.
She followed up with an orthopedic surgeon three days later and he immediately ordered an MRI which revealed a full thickness rotator cuff tear.
A week later, Mrs. David underwent surgery to repair her rotator cuff.
In the meantime, on February 3, 2003, Mrs. David retained lawyers to pursue her claim for injuries arising out of the accident. They filed suit on June 9, 2003. Mistakenly, though, the lawyers filed in the wrong court – the Civil Court of the City of New York, a court in which the maximum recovery is $25,000.
When her lawyers realized their mistake, it was too late. They sought permission from the Supreme Court to transfer the case to that court but their application was denied and that denial was upheld on appeal.
She then engaged new counsel and successfully sued the lawyers for malpractice. In that case (David v. Mallilo & Grossman (Supreme Court, New York County, Index # 107490/06), a motion for summary judgment was granted in plaintiff’s favor and upheld on appeal – it was easily determined that the law firm committed malpractice.
A trial was then held in which, as in all attorney malpractice cases, plaintiff then had to prove that she would have won her underlying car accident lawsuit. Further, she had to prove what her financial recovery would have been.
The liability element was easily resolved in Mrs. David’s favor (this was a rear-ender car accident) but the issue of damages was hotly contested before the trial judge awarded pain and suffering damages in the sum of $250,000.
It turns out that five days before the car accident Mrs. David bruised her right shoulder in a minor slip and fall incident and that she sought medical attention from noted orthopedic surgeon, Jacob D. Rozbruch, M.D., the day before the car accident. He diagnosed her with acute bursitis, arthritis and a possible rotator cuff tear. He injected her with lidocaine and kenalog.
At trial, Dr. Rozbruch testified that it was the car accident alone that was the immediate cause of the rotator cuff tendon tear because of the significant change in her examination between her initial visit the day before the car accident and her subsequent visit a few days thereafter. He said that before the car accident Mrs. David’s muscle strength was perfectly normal and that the injections had given her a good result.
The defense presented two physicians, an orthopedic surgeon (Anjani Sinha, M.D.) and a neurologist (James Liguori, M.D.), each of whom examined Mrs. David four and a half years after the accident. They testified that her right shoulder injuries pre-existed the car accident. That testimony, though, was discounted by the trial judge because it contradicted written reports they had generated shortly after their examinations in which they had stated that it could not be determined whether the torn rotator cuff was related to the accident or was pre-existing.
The trial judge’s decision to award $250,000 for pain and suffering has now been upheld on appeal in David v. Mallilo & Grossman (Appellate Term, 1st Dept. 2010). That award is within the range of recently sustained verdicts in rotator cuff surgery cases, as discussed by us most recently here.
The appellate judges noted that for several months after the accident plaintiff’s injuries left her:
- restricted in bathing, dressing and household activities
- unable to drive, type, write on the blackboard or lift boxes at school where she worked
And Dr. Rozbruch opined that Mrs. David’s shoulder injuries included:
- continued lack of full muscle strength, possibly permanent
- recurring subacromial bursitis and pain
- risk of recurrent tear of the rotator cuff with repeat surgery
- Mrs. David had been forced to accept $25,000 to settle her Civil Court lawsuit because that’s the most one may sue for in that court.
- Pursuant to CPLR 325(d), the attorney malpractice lawsuit, commenced in Supreme Court, was tried in Civil Court but there was no limitation of monetary jurisdiction with respect to the $250,000 verdict. The parties consented to have the case tried by a judge instead of a jury.
- Plaintiff’s husband was awarded $25,000 for his loss of consortium claim.
- In 2004, a $1,400,000 verdict was rendered against Mallilo & Grossman (in favor of another personal injury law firm) because a by-then disbarred associate had tapped into the plaintiff law firm’s answering service to intercept calls from potential personal injury clients.
- Mrs. David was represented by Philip A. Greenberg in her attorney malpractice suit. Given the result he obtained and the extensive opposition he faced at every turn, his advocacy was outstanding.