In 2009, a Manhattan jury awarded 54 year old plumber Bill Bouzas $10,000 for his pain and suffering (past – 2 years, future – zero) after a slip and fall accident left him with a dislocated shoulder and rotator cuff tear surgery.
Rotator cuff tears can be degenerative and caused by repetitive rubbing of bone spurs:
We discussed the Bouzas case, here, and as we predicted, the trial judge’s refusal to modify the verdict upward was appealed.
Last week, in Bouzas v. Kosher Deluxe Restaurant (1st Dept. 2011), the $10,000 award was deemed inadequate and the appellate judges:
- ordered an increase to $100,000 for past pain and suffering and
- affirmed the jury’s refusal to make any award for future pain and suffering
The issues on appeal were not uncommon – to what extent a plaintiff may recover pain and suffering damages when there’s evidence that he:
- previously injured the same body part (here, the shoulder) or
- had pre-existing significant degenerative changes in the area.
There was no question that Bouzas’s shoulder was dislocated in the fall. Shoulder dislocations are very painful and they must be reduced (put back into place), often, as here with a very painful manipulative procedure.
The defense contended that the medical evidence showed the rotator cuff tear pre-existed the fall, was due to degenerative disease of the joint and was not related to the slip and fall trauma. Excerpts from the medical testimony (treating orthopedic surgeon Mark Klion, M.D. and the defense expert Jerry Lubliner, M.D.) are included in the defendant’s brief on appeal, here.
Plaintiff testified that he had no prior shoulder problems or limitations whatsoever but that since the accident he can’t lift his arm straight up, doesn’t have nearly the strength he used to and is significantly restricted in his job – especially so as to the overhead work often required in plumbing. The jury, though, was evidently persuaded by plaintiff’s own surgeon’s records which showed that he already had "extensive degenerative changes" in his rotator cuff.
The appellate court cited two cases as to damages.
- Shifrel v. Singh (1st Dept. 2009) – a 49 year old man’s $5,000 pain and suffering award (all past – 4 years) was ordered increased to $50,000 (all past) after a car accident and torn rotator cuff surgery. The defense argued and the court noted that the jury was entitled to decline to make an award of future damages in view of the testimony of the defense biomechanical engineering expert that it was unlikely plaintiff struck his shoulder on the steering wheel in the accident.
- Miller v. Tacopina (1st Dept. 2006) – a 27 year old man’s $10,000 pain and suffering award ($5,000 past, $5,000 future) was ordered increased to $80,000 ($40,000 past, $40,000 future) after a car accident left him with a mild separation of the acromioclavicular joint in his shoulder that did not require surgery.
- Defense counsel stated in his summation: "At absolute best, this is a pre-existing injury. It was aggravated, okay." Plaintiff argued on appeal, unsuccessfully, that this was a major concession that required an award for future pain and suffering. The defense position was that it was responsible only for the dislocation, which had been fixed and from which plaintiff had recovered, and there were no continuing or future damages.
- New York law is clear that one may recover damages for any increased disability or pain from an accident that aggravated a pre-existing condition and judges routinely instruct juries to this effect along the lines of Pattern Jury Instruction 2:282.
- Plaintiff consulted with an orthopedic surgeon, Robert Marx, M.D., prior to the one who operated on him. Dr. Marx, not called to testify at trial, confirmed in his report that an MRI showed plaintiff sustained in the fall an "acute-on-chronic massive full thickness tear of the rotator cuff.
- There was no claim for lost earnings in this case.