In December 2009, we wrote, here, about Diarassouba v. Urban, a fascinating and long-winding medical malpractice case of a 32 year old math professor at Manhattan Community College who ended up with nerve damage and RSD (a chronic, painful neurologic condition often presenting as a burning sensation) affecting his right leg after unrelated extensive surgery in 1996 on his left knee.
RSD often presents in the extremities – upper (arm and hand) or lower (leg and foot):
In the first trial, Prof. Mahmouid Diarassouba was awarded pain and sufferng damages in the sum of $1,500,000; however, following defendants’ appeal, a new trial was ordered due to errors by the trial judge in allowing certain evidence to be heard by the jury that shouldn’t have been allowed while excluding other evidence that should have been heard.
In the second trial, the defendants were found liable again and the jurors awarded damages in the sum of $1,450,000 ($800,000 past – 11 years, $650,000 future – 30 years).
A second appeal by the defendants ensued, this time related to settlement discussions that occurred between counsel during jury deliberations. The appellate court affirmed the verdict.
In their third appeal, the defendants claimed that the verdict was based on legally insufficient evidence and was excessive.
Now, in Diarassouba v. Lubin (the originally first named defendant, William Urban, M.D., was dropped from the case after he settled for $390,000 before the second trial), the liability verdict has been affirmed and the court held that $1,450,000 for plaintiff’s pain and suffering damages is not excessive and did not deviate from what would be reasonable compensation.
As indicated in the new decision, due to the failure to reposition his right leg during a 10 hour surgery on his left leg, Diarassouba was left with permanent and chronic RSD (also called complex regional pan syndrome or CRPS).
The appellate court judges considered the following facts not recited in their opinion:
- plaintiff awoke from his 1996 surgery with extensive pain in his right leg and was diagnosed in the hospital with tibial nerve injury and RSD
- plaintiff complained of unbearable burning and electrical type pains in his right leg
- he underwent four lumbar sympathetic nerve block injections in July 1996
- plaintiff treated with Mexitil, a drug that blocks sympathetic nerve transmission and relieves pain
- at trial, plaintiff continued to suffer constant right leg weakness, foot numbness and excruciating shooting pain 15-20 times a day
- Mexitil’s side-effect, drowsiness, ended up preventing plaintiff from continuing to work as a math professor but there was no wage loss claim presented in this case.
- The defense hired an investigator to secretly follow and videotape the plaintiff in 2002 and the tape was played for the jurors. It showed Diarassouba walking in and our of his home and car.
- Plaintiff’s pain medicine expert, Alexander Weingarten, M.D., testified that the chances that plaintiff would recover any more leg function are "probably zero;" whereas, defendants’ neurology expert, Samuel Rapoport, M.D., testified that plaintiff’s RSD had improved and, based on the videotape, he could walk normally.
- While the jury was deliberating during the second trial, Diarassouba was willing to accept defendants’ $150,000 settlement offer that he had previously rejected because he was convinced that the jury would be swayed by the testimony of Dr. Urban, the surgeon who had settled, that if anyone was to blame he was the one and not the anesthesiologists.