New York Injury Cases Blog : New York Personal Injury Lawyer & Attorney : John Hochfelder Law Firm : Traumatic Injury, Wrongful Death

On March 22, 2006 Alice Silverberg was admitted to Maimonides Hospital Center in Brooklyn. Up to that point, she was an active 78 year old woman in generally good health but with a prolapsed uterus which brought her to the hospital for an elective vaginal hysterectomy.

Anamaria Guzman, M.D., attempted to anesthetize Ms. Silverberg so the operation could commence but the doctor was unable to place the endotracheal tube (ETT) in the trachea. Another anesthesiologist was called in to assist but he too was unable to intubate the patient. Three attempts were made but each time the instrument was placed into the esophagus (instead of the trachea).

Finally, Dr. Guzman was able to successfully intubate her patient. The hysterectomy then proceeded uneventfully; however, the unsuccessful attempts to intubate had already perforated the esophagus.

Post-operatively, Ms. Silverberg suffered from several unanticipated complications including:

• a pneumothorax (collapsed lung)
• empyema (an infection of the chest lining from bacteria passing through the esophagus) and
• a perforated esophagus

Here is the anatomy involved in this case:

Ms. Silverberg remained hospitalized for almost a month until she was transferred to nursing homes where she remained for over a year until she was sent home.

In her ensuing lawsuit, Silverberg v. Guzman (Supreme Court, Kings County; Index # 24076/06), Ms. Silverberg claimed that the doctors were negligent in perforating her esophagus and that they thus caused her to undergo additional surgeries and a year of confined medical treatment unable to walk or feed herself as well as permanent dementia (the infection caused her to suffer hypoxic brain damage).

On April 1, 2009, the jury found that Dr. Guzman departed from accepted medial practice (i.e., she was negligent) in failing to read notes in her patient's chart and in failing, post-operatively, to communicate to plaintiff's other doctors that medical instruments had been placed in the esophagus, thereby causing a delayed diagnosis of the esophogeal perforation for several days.

The jurors then awarded plaintiff pain and suffering damages in the sum of $4,500,000 (allocated entirely to past pain and suffering with nothing at all awarded for any future period).

The defendant appealed arguing:

1. there was no proof connecting the delayed diagnosis to plaintiff's damages and
2. alternatively, that the pain and suffering award was excessive.

In Semel v. Guzman (2d Dept. 2011), the appellate court has now upheld the liability finding while ordering a reduction in damages from $4,500,000 to $2,000,000 (all for past pain and suffering).

Here are additional injury details:

• Three surgeries after the hysterectomy: to repair the esophogeal perforation, to place an esophogeal stent and to remove the stent.
• During most of the year in nursing homes, plaintiff was tube-fed, wheelchair-bound and unable to walk or dress herself.
• As of the trial date, plaintiff was fully ambulatory and competent to testify but contended she could no longer manage her financial affairs, recognize family members or travel independently.

Inside Information:

• The appellate judges did not discuss the main damages contention advanced by the defendant - that plaintiff failed to prove precisely which harms were caused by the delayed diagnosis as opposed to the perforated esophagus.
• Plaintiff's attorney asked the jury to award $5,000,000 for past pain and suffering and $2,000,000 for the future.
• In view of her near complete recovery (plaintiff had resumed many of her activities of daily living, including caring for herself, food shopping and cleaning her home), plaintiff was denied any recovery at all for future pain and suffering damages.
• Ms. Silverberg died of unrelated causes in February 2011 and the case name was changed to reflect the substitution of her executors as plaintiffs.

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Ricky Love used to hang out at a Brooklyn nightclub known as Rockwell's and went there with friends at 2 a.m. on January 29, 2006.  I doubt he'll be returning. He ended up in an altercation and sustained a fractured jaw.

Here's Rockwell's, where it all began:

At Rockwell's, Ricky and a friend went to smoke a cigarette in an outside alleyway when he got into an argument with another customer about a spilled drink. A bouncer interceded and ejected Love from the premises.

Love claimed that the bouncer, without any provocation, repeatedly struck him in the face and banged his head against the wall causing his jaw to fracture.

Ricky sued Rockwell's and in 2009 a Kings County jury awarded him $250,000 for his three years of pain and suffering (he made no claim for future damages).

Now, in Love v. Rockwell's International Enterprises, LLC, (2d Dept. 2011), the appellate court has ordered a reduction of the pain and suffering verdict to $175,000.

We usually mean the mandible when referring to the jaw. It's U-shaped and stretches from ear to ear and is joined to the upper part of the head by two temporo-mandibular joints:

The bouncer was never identified and did not testify. In fact, the defendant argued on appeal that the case should have been dismissed because all of its bouncers were independent contractors - not employees - and plaintiff could only prevail against the club itself if he could prove the bouncer was an employee. This issue, though, was not raised at or before trial so the appellate court ruled it was waived.

In reducing plaintiff's jury verdict by $75,000, the appellate judges mentioned that this is a jaw fracture case but that's all they said as to the injury details:

• displaced mandible fracture requiring ORIF surgery to implant a metal plate and screws
• four day hospital admission
• jaw wired shut for six weeks
• at time of trial, jaw still numb and sensitive to hot and cold, and plaintiff had difficulty eating

There's no explanation of why the judges reduced Mr. Love's jury award but there is a citation to one case that is relevant. In that case,  Atkinson v. Buch (1st Dept. 2005), a dentist mistakenly fractured his patient's jaw during a tooth extraction procedure. He wired it shut immediately (while the patient was still under local anesthesia) but for the ensuing wight weeks Atkinson was in pain, didn't work and could only eat through a straw. The jury awarded $15,000 for pain and suffering ($10,000 past - 3 1/2 years, $5,000 future - 1 year); however, the appellate court increased the award to $80,000 ($75,000 past, $5,000 future).

Here are two other jaw fracture appellate cases that rule on pain and suffering damages:

• Barnes v. Paulin (2d Dept. 2010) - $200,000 ($100,000 past - 3 years, $100,000 future - 25 years) for a 19 year old in a car crash who sustained a mandible fracture and a nerve injury, underwent surgery to implant a plate and screws and whose jaw was wired shut for seven weeks. We discussed this case in detail, here.
• Kennedy v. City of Yonkers (2d Dept. 1999) - $100,000 reduced from $190,000 (all past - 3 years) for a 15 year old boy with a double mandible fracture whose jaw was wired shut for seven weeks and who at trial still had popping and clicking in his jaw.

Inside Information:

• Counsel for Rockwell's argued in summation that the incident never happened and implored the jurors that even if they found his client liable then plaintiff's injuries were so minimal that there should be no award at all for any pain and suffering.
• Counsel for Love asked the jury to award $300,000 all for past pain and suffering  (conceding that his client hadn't complained about pain since the surgery).
• The evening began at a private party at an apartment around 10:30 p.m. where Love admitted he "probably took an [ecstasy] pill." He arrived at Rockwell's around 2 a.m., got a drink, went to the bathroom and then for a smoke in the alley where he claimed the bouncer broke his jaw.

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On September 7, 2005, Courtney Graves was on the Franklin Avenue shuttle train heading to orientation before the start of her sophomore year at Sheepshead Bay High School in Brooklyn. She never made it; instead ending up at the hospital after the train derailed and she was slammed against he window sustaining injuries to her back and shoulder.

Here's where Courtney was headed:

The train operator admitted liability for the accident but the amount of damages could not be agreed upon so a trial was held in 2009 in Graves v. New York City Transit Authority (Supreme Court, Kings County; Index # 11185/06).

After hearing testimony from orthopedic surgeons for both sides, as well as from Courtney and her mother,  the jury awarded pain and suffering damages in the sum of $350,000 ($200,000 past - 4 years, $100,000 future - 5 years).

Plaintiff's pain and suffering award has now been affirmed in Graves v. New York City Tr. Auth. (2d Dept. 2011), a decision that failed to reveal any of the injuries.

Here are the details of the injuries Courtney sustained:

• herniated disc at L5-S1 with radicular symptoms of nerve injuries
• glenoid labrum tear in right shoulder
• trigger point injections
• hydrodiscectomy surgery

Hydrodiscectomy is a minimally invasive, same-day procedure that uses a high-speed water stream to remove herniated discs. Using a fluoroscope to project live x-ray pictures onto a monitor, the surgeon places a high velocity fluidjet instrument within the spinal disc without using a large incision (and usually under local anesthesia).

Previously very fit and a member of her school's basketball and track teams, Courtney was unable at all to resume any sporting activities.

Courtney missed school for a few days just after the accident and almost two months in March and April 2007 at the time of her surgery. Unfortunately, her back and shoulder pain remained. While Courtney graduated high school on time in June 2008, she was unable to continue her nursing school education (she was unable to sit for long periods) and took a leave of absence in June 2009.

Courtney's doctor testified that her injuries are permanent and may require two surgeries:

1. a lumbar discectomy and
2. surgery to repair the labral tear.

The labrum is a soft ring of cartilage surrounding the shoulder socket (the glenoid) and it acts as an anchor to hold the bones together in the joint.

Inside Information:

• The defense doctor stated that plaintiff had undergone an ill-advised overly conservative course of physical therapy that thwarted her recovery. He also was of the opinion that Courtney won't need any more surgery.
• In closing, defense counsel acknowledged the defendant's responsibility for the accident but stated that "the results were not entirely significant" and asked the jury for a total pain and suffering award of $50,000.

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