New York Injury Cases Blog

Appellate Court Determines Proper Amount for Pain and Suffering Damages in RSD Case

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

Inside Information:

 

 

 

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