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

On July 29, 2002, then 16 year old Jennifer Gillette underwent a procedure by podiatrist Greg Atlas in which a wart was removed from the side of her left heel.

Complications developed, she was forced to undergo five new surgeries and Jennifer ended up suing Dr. Atlas claiming that he negligently performed the procedure and that he never properly informed her of the substantial risks involved in the way he did it.

Seven years later, on August 18, 2009, an Orange County, New York jury awarded her $3,000,000 for her pain and suffering ($1,500,000 past, $1,500,000 future – 55 years).

The jury based liability only on the so-called informed consent claim. That’s a long-standing legal principle under which a doctor may be held liable to his patient when:

1. he fails to disclose alternatives to the treatment given and fails to inform his patient of the reasonably foreseeable risks associated with the planned procedure,
2. a reasonably prudent patient would not have undergone the treatment had she been fully informed, and
3. the lack of informed consent is a proximate cause of the injury.

A plantar wart caused by the human papilloma virus (HPV) that appears as a small lesion on the foot and typically presents as a cauliflower. It looks like this:

Plantar warts tend to be painful and can be spread in showers and swimming pools. Treatment usually involves peeling away of the dead surface skin cells with chemicals, acid or liquid nitrogen. Lasers are often used too. Surgery is a last resort.

In Jennifer Gillette’s case,  the doctor excised the wart with a scalpel, a procedure she said at trial she was unaware of until the moment it happened. She had expected laser treatment only.

Dr. Atlas told the jury that he told Jennifer (and her mother) that the risks of the procedure involved skin infection, scaring and repetition of the procedure. Critically, though, he did not tell her that the excision procedure could result in the rupture of her Achilles tendon and he did not tell her about alternate, conservative, methods he could have used to remove the wart.

Here’s what happened after the office procedure:

• development of hypertrophic and keloid scar
• three rounds of steroid injections into the back of her heel overlying the Achilles tendon
• development of soft tissue deficiency, tendinosis and Achilles tendon degeneration

Jennifer underwent five surgeries before trial including a Haglund’s type excision (removal of a bony protuberance of her calcaneus - the heelbone) and an Achilles tendon debridement, repair, transfer and release.

For the seven years from the date of the wart excision procedure until trial, Jennifer was substantially restricted to a wheelchair, crutch and/or cane assisted ambulation. When standing and walking could be accomplished, it was only for short periods of time.

As to Jennifer’s claim for future pain and suffering, the jury heard credible testimony from experts that she’d forever suffer:

• permanent loss of function of her left big toe (due to the tendon transfer surgery),
• less functional and likely failure or degeneration of her Achilles tendon (now a transposed, smaller tendon),
• chronic pain in the Achilles insertion, and
• inability to return to any of the many recreational endeavors previously enjoyed without restrictions.

While the jury returned a verdict for every dime of the $3,000,000 requested in summation by plaintiff’s attorney, the trial judge found the award excessive and reduced it to $1,000,000 ($500,000 past, $500,000 future) [Gillette v. Atlas - Supreme Court, Orange County, 1/22/10; Index # 3844/06.]

Under New York’s CPLR 4404, the trial judge’s decision is conditional. That means that either the plaintiff agrees to the reduction or there will be a new trial (limited to determining anew the amount of damages).

Inside Information:

• the jury found that the defendant had not committed malpractice either by determining to remove the wart by scalpel and laser or by injecting steroids afterwards but they did find that appropriate information had not been given to Jennifer and that had she been given the information she would not have consented to the scalpel excision procedure
• the defendant had offered plaintiff a high-low agreement under which, no matter what the verdict, the defense would pay at least $500,000 but no more than $1,500,000 – meaning that if there were a defense verdict Jennifer would nonetheless receive $500,000 and if, as it turned out, the jury awarded more than $1,500,000 then she’d get $1,500,000
• My sources tell me this case will now settle for $1,000,000. If so, Jennifer should have taken the high-low deal under which she'd have received $1,500,000

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In a case involving a pedestrian struck by a bus, there were two trials with two different juries. The plaintiff sustained elbow and foot fractures and in the first case her pain and suffering verdict was $575,000 but in the second case a new jury reduced that sum to $22,000! 

It all began at 6 p.m. on May 8, 2003 when 43 year old Mary Stewart went out for dinner in Manhattan after work. She had steak and a few drinks (we'll get to how many in a moment). At about 10 p.m., Ms. Stewart, a long distance walker who routinely walked miles at a time, began her mile and a half walk home. After about 14 blocks, she was crossing the street when she was struck by the bus making a right turn.

Ms. Stewart filed a lawsuit against the city that was first tried before a jury in October, 2004.

• Her claim: she was in the crosswalk, had the light in her favor and the bus driver should have seen her.
• The defense claim: the hospital record and a toxicology expert showed that plaintiff was grossly intoxicated and this supported the theme that she was  "a drunken woman who wandered into the street into the side of a slowly moving bus."

The jury found that the bus driver was 70% at fault for the accident and assessed Ms. Stewart with 30% of the fault. Then it found her injuries were worth $575,000 ($300,000 past pain and suffering, $275,000 future). Had that been the end of it, she'd have received $372,500 (70% of the verdict) for her pain and suffering and this case would not be surprising.

But that was not the end of it. The city appealed  on the basis that the jury should not have seen a certain part of the hospital record that stated that the toxicology report should not to be used for legal purposes. The city felt this language may have caused the jury to give less weight to the otherwise very damaging toxicology report. There is a firm legal principle that matters in hospital records that do not relate to diagnosis or treatment are not admissible and should not be shown to the jury. The court found that this applied to the language objected to by the city and therefore the city's  appeal was successful and a new trial was ordered.

In January 2007, the new trial was held and a new jury found that plaintiff's pain and suffering was worth much less than the first jury had found. The new jury awarded a total of $22,000 all for past pain and suffering denying any recovery at all for future pain and suffering. Even worse for Ms. Stewart, the new jury also ruled  that she was 72% at fault for the accident - meaning that her total pain and suffering recovery from the new jury was a mere $6,160 (28% of $22,000)! And that came with representation from a top notch law firm - Sullivan Papain Block McGrath & Cannavo. 

When the shock wore off, plaintiff and her lawyers appealed the verdict (both the apportionment of fault and the pain and suffering damage sums). They were disappointed again. This week, in Stewart v. Manhattan and Bronx Surface Transit Authority,  the appellate court upheld both the apportionment of liability and the denial of future pain and suffering while holding that the past pain and suffering award should be increased to $150,000 (leaving the plaintiff with $42,000 - 28% of $150,000).

The appellate court reasoned as follows:

• the denial of future damages was justified because the defense doctor testified that Ms. Stewart had no disability or permanent restrictions (her injuries had not required surgery and she had resumed her walking)
• the fault apportionment was justified because (a) there was evidence that plaintiff was intoxicated and continued to walk even though she saw the bus turning towards her and (b) there was conflicting evidence as to whether plaintiff was in the crosswalk (and the jury had the right to credit whichever testimony it believed and to determine that Ms. Stewart's conduct was the far greater cause of the accident)

 Inside Information:

1. there was conflicting evidence as to how drunk the plaintiff really was - she said she had only 3 vodka and cranberry drinks with dinner but the expert toxicologist opined that she must have had 8 and was "grossly intoxicated;" the jury may have concluded that Ms. Stewart was lying and thus not believed her testimony about continuing pain and disability
2. the doctor who testified as an expert for the plaintiff and claimed that her injuries were permanent was not her original treating doctor - he saw her only two times (first, a year after the accident; second, shortly before trial); the jury may have discredited plaintiff's expert  as a hired gun

Policy Implications and Questions arising out of this case:

• Should there be a standard set by statute or rule that requires scheduled amounts to be awarded for pain and suffering damages so that widely divergent results from different juries, as seen here, will be avoided?
• Should persons who are clearly intoxicated be permitted at all to recover pain and suffering damages in accidents such as in this case? [some such as Walter Olson at Overlawyered suggest that juries have gone "crazy" when they allow drunks to win these types of accident cases and award big damages; while others such as the folks over at Tort Deform suggest that it would be unfair to forbid the drunks their day in court and that the rule of comparative fault is a "dandy tool" of the civil justice system that contemplates things like people getting drunk, falling onto subway tracks and winning millions in their lawsuits against train conductors who run them over]
• If drunk plaintiffs can recover damages in accident cases such as here, how can we avoid (or should we try to) widely divergent fault apportionment calculations as seen in the different holdings by the two juries in this case (one found Ms. Stewart 30% at fault, the other 72%)
• How can we avoid (or should we try to) widely divergent fault apportionment calculations as seen in the comparison between the ultimate finding in this case (plaintiff 72% at fault) and the recent subway drunk case in which the drunk plaintiff was found to be 35% at fault (discussed here.)     

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There are 26 bones in the foot. So the variety of foot injuries is huge - from crush and calacaneous fractures to a 5th metatarsal (little toe) fracture. And thus the range for verdicts and settlements for pain and suffering in foot injury cases is quite wide.

In a recent case, Lentini v. NYC Transit Authority (Supreme Court, Bronx County; Index # 18020/06; 11/3/08), $2,200,000 was awarded recently by a jury for a 76 year old woman who sustained a complex crush injury to several bones in her foot requiring four orthopedic and reconstructive surgeries to salvage her foot.

By contrast, in Crooms v. Sauer Bros. Inc., New York's Appellate Division First Department ruled on 2/28/08 that $75,000 for a fractured metatarsal and thrombosis (the formation of a blood clot - in this case, from the cast) does not deviate from reasonable compensation where an unemployed former transit worker on disability made a full recovery.

Let's take a look at those 26 bones in the foot.

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