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

At about 2 p.m., on March 8, 2006, Maria Perone, then 18 years old, was on her way to the local Dunkin Donuts to get coffee for her office co-workers. As she walked across Bell Boulevard in Queens, Maria was struck in the crosswalk by a slow moving left turning city bus.

The impact knocked her to the ground and an ambulance took her to a nearby hospital emergency room where she complained of severe pain in her left shoulder and side. Maria was diagnosed with a left clavicle fracture and given a sling to wear for six weeks and a prescription for Vicodin.

A day later, Maria saw her pediatrician with complaints of pain not only in her left shoulder area but also in her left hip (where she had developed a large bruise). A week later, an MRI of the left hip revealed a fracture.

Maria sued the city and on November 16, 2009, a Queens jury awarded her pain and suffering damages in the sum of $180,000 ($65,000 past - 3 1/2 years, $115,000 future - 5 years).

Now, in Perone v. City of New York (2d Dept. 2011), an appellate court has agreed with the defense contention that the jury award was excessive and ruled that the $115,000 award for future damages should be reduced by $85,000 to $30,000.

The total award now stands at $95,000 ($65,000 past, $30,000 future).

As indicated in its decision, the appellate court was influenced by the facts that:

1. the clavicle fracture was only minimally displaced (where the bone snaps and moves, so that the ends are not lined up straight) and
2. the hip fracture was nondisplaced (where the bone cracks, but does not move and maintains its proper alignment).

Maria's hip fracture was actually a nondisplaced fracture of the greater trochanter (the non-weight bearing large bony end of the femur that sticks out from the side of one's hip).

The court also noted that Maria's treatment for her injuries was minimal (sling for six weeks, minimal physical therapy, no surgery), she had no arthritis, she did not limp and her fractures had healed completely.

In arguing for an affirmance of the jury verdict, Maria's attorneys noted that:

• she experiences pain a few times a week as well as upon changes in the weather, when jogging and when wearing high heels
• her physical medicine and rehabilitation doctor (Kioomars Moosazadeh, M.D.) testified that Maria still has some atrophy and and instability in her shoulder with respect to which he said she has a guarded prognosis

In arguing (successfully) for a reduction of the jury verdict, the defense noted that:

• there was no medical testimony establishing permanence or arthritic changes
• the evidence indicated that plaintiff's injuries have not had much of an impact on her activities
• the defense doctor (orthopedic surgeon Andrew Miller, M.D.) testified that he did not detect any atrophy, irritability or crepitation of Maria's shoulder

Two of the cases cited by the court are recent and relevant.

1. In Shaperonovitch v. City of New York (2d Dept. 2008), a woman sustained fractures of her acetabulum bone in her hip. No surgery was required, the bone healed within two months and she was able to walk unassisted. The jury's $102,000 pain and suffering award ($51,000 past, $51,000 future - 31 years) was found reasonable and affirmed.
2. In Vanini v. Ramtol Service Corp. (1st Dept. 2005), a man sustained a clavicle fracture which had healed and there was no medical proof to support a claim of permanence or residual impairment. The jury awarded $10,000 for pain and sufferng (past only) and the appellate court ruled that it was fair and should not be disturbed.

Inside Information:

• Plaintiff fractured her left clavicle in the past as well -  when she was four years old.
• Plaintiff's doctor testified that there was no indication of a need for surgery, "but I cannot say in the future what will happen." "I can't say at this moment."

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On October 12, 2007, Tina Holstein delivered her third child, without complications, at Community General Hospital in Syracuse. Within a couple of hours, she was nauseous and vomited so the nurse on duty administered an intramuscular injection of Phenergan (an anti-emetic).

Generally, an injection into the buttocks is delivered using the upper outer quadrant, so as to avoid the sciatic nerve:

In Mrs. Holstein's case, the injection was delivered in the wrong location - hitting the sciatic nerve - and she ended up with unremitting pain in her back and down her leg.

The sciatic nerve is the largest and longest single nerve in the body, about as big around as a man's thumb at its largest point. It originates in the lower spine as nerve roots exit the spinal cord and extends all the way down the back of the leg to the toes.

In an ensuing lawsuit against the hospital (and the nurse who gave the shot), on May 28, 2010, an Onondaga County jury found medical negligence against the defendants and awarded the then 34 year old Holstein pain and suffering damages in the sum of $1,690,000 ($140,000 past - 2 1/2 years, $1,550,000 future - 50 years).

The defense claimed in a post-trial motion that (a) there was insufficient evidence to warrant the jury's finding that the nurse was negligent and (b) the verdict was excessive. The trial judge denied the motion in all respects.

Last week, the verdict was affirmed on appeal in Holstein v. Community General Hospital (4th Dept. 2011).

The appellate court neglected to mention any of the injuries and disabilities sustained by the plaintiff:

• pain, especially in her back and leg, so bad and constant that at times she wished she could get her leg amputated
• altered sensation, excruciating sensitivity and burning
• difficulty sleeping, waking up several times a night
• unable to sit or stand for any extended period of time
• inability to bend
• inability to play with her kids

While plaintiff required narcotic medication for her pain and her medical expert testified that her conditions are permanent and will get progressively worse, the most significant treatment she'd undergone was a series of nerve blocks, she'd undergone no surgery (though a surgically implanted spinal cord stimulator was recommended) and there was no claim that she'd need any in the future.

The defense argued that plaintiff's injuries were not serious - that she was hardly limited in her daily activities (she'd returned to work as a nurse, albeit in a limited capacity), was not debilitated in any manner and her complaints of pain were subjective only.

A nerve conduction study, performed just before trial, though, showed positive findings of S1 radiculopathy (a condition due to a compressed nerve in the spine that can cause pain, numbness, tingling or weakness along the course of the nerve). In view of a prior negative finding, this, plaintiff's counsel argued, was objective evidence indicating that Mrs. Holstein's condition was worsening.

Inside Information:

• The defense argued on appeal that the trial judge failed to poll the jury, thus requiring a new trial. Three of the appellate court judges rejected that argument and voted to affirm, while two dissenters agreed with the defense and would have sent this case back for a new trial on the issue of polling (where the trial judge asks each individual juror if the verdict set out on the verdict sheet - already signed by each - is indeed his or her verdict).This 3-2 split means that the Court of Appeals (New York's top level appellate court) will be asked to resolve the polling issue (about which we wrote in 2009, here, when the Court of Appeals ruled in Duffy v. Vogel).
• The jury verdict was reached at about 4:30 p.m. on the Friday of Memorial Day weekend, four hours after beginning deliberations and within only 40 minutes or so of having been given a read back of medical testimony. This, defense counsel argued (unsuccessfully), was evidence of juror confusion and a rush to judgment.
• The $1,690,000 verdict is significant in view of the paucity of objective proof of plaintiff's injuries and the fact that plaintiff conceded there will be no surgery required. This is an outstanding result for plaintiff's counsel, Jeff D. DeFrancisco, a leading medical malpractice lawyer from Syracuse.

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On March 7, 2003, a cold, icy and windy morning, Julio Alieca took a city bus to visit his mother in the Bronx. The driver stopped near the intersection of 174th Street and Harrod Avenue and the 33 year old Alicea stepped out of the rear door down onto accumulated snow in the street, slipped, fell down and sustained a bimalleolar fracture of his ankle (where the lateral malleolus and the medial malleolus are both broken and the ankle is unstable).

In the ensuing lawsuit, on April 1, 2009, a Bronx jury found the city and its transit operating authority fully at fault for the accident because (a) the driver stopped in the middle of the roadway rather than at the designated bus stop and (b) the city had failed to remove the snow which was from a two week old storm. Liability was apportioned 25% to the driver and 75% to the city.

After ruling on liability, the jury awarded pain and suffering damages in the sum of $941,760 ($158,960 past - 6 years, $782,800 future - 38 years).

The city made a post-trial motion seeking dismissal of the entire case notwithstanding the verdict and plaintiff cross-moved contending that the verdict for past pain and suffering was inadequate. The trial judge denied both applications.

Now, in Alicea v. City of New York (1st Dept. 2011), the liability verdict has been upheld but the plaintiff's request to increase his past pain and suffering award has been granted. The appellate court found that $158,960 for plaintiff's past pain and suffering was inadequate and ordered a conditional increase to $400,000. Thus, the total pain and suffering award now stands at $1,182,800 ($400,000 past, $782,800 future).

In addition to the malleoli fractures, plaintiff sustained a syndesmotic injury - there was a tear in the syndesmotic ligament that prevented the tibia and fibula from coming together. Therefore, a large screw had to be surgically inserted to allow the ligament to heal.

Mr. Alicea was required to undergo three surgical procedures:

1. Open reduction internal fixation (ORIF) three days after the accident in which a 10 hole metal plate and screws were installed in the ankle, as well as the syndesmotic screw from the fibula across the tibia
2. Removal of the syndesmotic screw, about a year after the accident
3. Removal of all of the remaining metal screws and plates, about four years after the accident

What the ankle looks like after typical ORIF for a bimalleolar fracture:

Mr. Alicea was left with permanent and significant loss of motion in his ankle, pain, stiffness and difficulty walking. He could no longer engage in activities with his children such as martial arts training and running with his teen-age son. At the time of trial, he walked with a limp and his medical expert testified that his condition would not improve and that Alicea already has post-traumatic arthritis that will probably require ankle fusion surgery.

The appellate court cited three ankle injury cases to support its ruling that past pain and suffering damages should be increased from $158,960 to $400,000:

1. Hopkins v. New York City Transit Authority (1st Dept. 2011) - $625,000 affirmed for a 22 year old woman with trimalleolar fractures, ORIF and arthritis [discussed by us, here]
2. Colon v. New York Eye Surgery Assoc., P.C. (1st Dept. 2010) - $950,000 for a 55 year old woman with an ankle fracture that developed residual reflex sympathy dystrophy (RSD) [discussed by us, here]
3. Lowenstein v. Normandy Group LLC (1st Dept. 2008) - $1,150,000 for a 51 year old with a trimalleolar ankle fracture requiring surgery and shoulder fractures requiring immobilization [mentioned by us, here]

 Inside Information:

• The defense did not put on any medical expert to testify with the result that the only medical testimony was from plaintiff''s expert, orthopedic surgeon Stuart Remer, M.D.
• Plaintiff had been an armed security guard who was out of work for six months due to his injuries from the accident.

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