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

Joan Sutton, a 68 year old retiree, suffered from chronic left hip pain, was diagnosed with degenerative arthritis and underwent total hip replacement surgery on June 12, 2003 with orthopedic surgeon Elias Kassapides, M.D. at St. Luke’s - Roosevelt Hospital in New York City. The doctor removed and exchanged the femoral head (the ball) and the acetabulum (the cup) which together comprise the hip joint and replaced them with artificial components.

Here is what a degenerative hip joint looks like:

Unfortunately, Ms. Sutton’s hip pain continued after surgery and she eventually treated with new surgeons, one of whom, on August 18, 2004, performed revision surgery on her left hip. He took out the prosthetic devices and put in new ones.

And here is what the hip replacement components look like after the surgery:

Contending that surgical mal-positioning of the hardware implants caused the need for new surgery, Sutton sued Dr. Kassapides but on May 2, 2008, a jury in Queens County rendered a defense verdict finding that there was no malpractice.

Now, though, in Sutton v. Kassapides, an appellate court has upheld plaintiff’s appeal and reversed that finding, set it aside and ordered that a new trial be held. The appellate court ruled that plaintiff was deprived of a fair trial as a result of the cumulative effect of the improper conduct of the trial judge, both during his cross-examination of witnesses and in his charge to the jury.

No details about the judge’s inappropriateness were set forth in the appellate court’s decision so we’ve dug up the information and here it is. The judge, Duane A. Hart, was charged by plaintiff’s counsel with stepping beyond his role as a disinterested umpire, evincing a clear bias in favor of the defendant and excessively intervening into the trial proceedings by:

• Pre-judging the case before trial began and concluding that plaintiff’s claims required dismissal
• Taking over the cross-examination of witnesses by his tone and the nature of his questions demonstrating partiality to the defense
• Falling asleep while on the bench during court proceedings

For examples of some of the judge’s improprieties during the trial, here is the plaintiff’s brief on appeal which includes portions of the trial transcript, at pages 11-18, demonstrating several instances of the judge’s unusual and improper actions in this case.

On retrial, the issue to be determined will be whether the defendant’s positioning of the hardware components "deviated from medically accepted practices." That’s precisely the phrase judges routinely use in their instructions to jurors at the end of medical malpractice cases in New York and it’s set out in full at Pattern Jury Instructions 2:150.

Plaintiff claimed that Dr. Kassapides was negligent (and caused the need for revision surgery) because he left about 25% of the hip socket uncovered due to his placement of the acetabular cup at corresponding angle of 30 degrees instead of 45 degrees. Defendant’s expert testified, though, that the cup was properly placed and that, as plaintiff’s expert conceded, an acetabular cup may be safely placed between 30 and 50 degrees.

As to damages (not reached at trial due to the defense verdict on liability), plaintiff will have to convince the new jury that she would not have been required to undergo left hip revision surgery but for the defendant’s negligence. The defendant will point out that plaintiff had, before her initial left hip surgery, undergone an unrelated right hip replacement that needed to be revised because the cup was placed too vertically. That may well undercut her claim that it was only the defendant’s negligence (assuming she can prove negligence) that caused the need for her left hip revision surgery.

In any event, whatever a new jury might award, it's unlikely damages would be sustained above $500,000 in view of last month's appeals court decision in Dublis v. Bosco (2010). There, a 74 year old woman underwent surgical revision of an artificial hip in which the femoral head and the acetabular cup were replaced. Unfortunately, plaintiff was left with a foot drop caused by intra-operative nerve damage. While her attorneys requested $800,000 for plaintiff’s pain and suffering, the jury awarded pain and suffering damages in the sum of $500,000 ($200,000 past, $300,000 future) and that amount was, over defendant’s objections, upheld as reasonable. While not perfectly analogous to the facts in Sutton v. Kassapides, it’s likely that this decision, as a practical matter, has set the ceiling for damages in Ms. Sutton’s retrial.

Inside Information:

• Plaintiff’s attorneys made the unusual request, granted on appeal, that the retrial should be held before a different judge. That request has been made and granted several times regarding this particular trial judge, for example, in Williams v. Naylor (2009), Pickering v. Lehrer (2006) and Allstate Insurance Co. v. Albino (2005).
• Judge Hart has been censured by the state Commission on Judicial Conduct for his improper conduct in other cases and matters.
• It is often very difficult for plaintiffs in medical malpractice cases to find top notch local experts to testify for then (and against their colleagues) so resort is made to out of state experts. Here, though, plaintiff’s expert, Ronald Krasnick, M.D., a Burlington, New Jersey orthopedist, appears to have been overmatched by defendant’s expert, William Macaulay, M.D., a world-renowned orthopedic surgeon. Jurors are often greatly influenced by such matters, especially considering that these types of cases are often battles of experts and are decided in large part based on which competing expert’s opinion is more credible.
• One of the mistakes by Judge Hart was his charge to the jury that if they concluded that defendant merely made an error in judgment (i.e., he chose among several accepted methods of treatment) as opposed to a deviation from accepted medical practices in how he perfumed the surgery, then they could find for the defense. The plaintiff argued successfully on appeal that this charge should not have been given because her claim was not whether the initial left hip surgery should have been performed or not; rather, she claimed that it was how the doctor performed the surgery (the ball and cup placement mal-positioning) that constituted negligence. In charging the error in judgment rule, Judge Hart ignored clear and binding precedent from New York’s highest court in the case of Nestorowich v. Ricotta (2002).

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Destiny Avila was born at Harlem Hospital on January 5, 2001. It was a difficult delivery - Destiny was 10 pounds and her clavicle had to be forcibly fractured to get her out. Then, she was intubated and sent to the neonatal ICU for two days. Apparently all was well and baby and mother were discharged on January 9, 2001 (four days after birth).

Here is where Destiny Avila's saga began:

By the time she was three years old, Destiny's mother noticed she had developmental delays. An evaluation indicated that she had a developmental age of only 10 months. Her mother promptly started a lawsuit in 2004 against the hospital and its doctors claiming medical errors during delivery had caused brain damage to her baby.

After a three week trial in Manhattan Supreme Court, on October 18, 2007 the jury rendered an $8,000,000 verdict in plaintiff’s favor.

In Avila v. City of New York, an appeals court has now set aside the verdict and ordered a new trial because the trial judge erroneously dismissed a juror and seated an alternate after deliberations had begun.

Plaintiff’s medical experts had testified that the doctors should have performed a caesarean section because of the baby’s large size and indications that she was not receiving enough oxygen. They felt that Destiny had sustained hypoxic ischemic encephalopathy (permanent brain injury due to a lack of oxygen or adequate blood flow to the brain) and they concluded she has mild cerebral palsy as a result.

The defendants’ medical experts could not have disagreed more. The said a vaginal delivery was appropriate and that Destiny suffered no significant injuries other than the clavicle fracture and that injury was no one’s fault. Most importantly, they were adamant that Destiny was not suffering from cerebral palsy. Instead, they strongly urged that any medical or developmental problems plaintiff may have had were minimal and/or within the spectrum of a previously diagnosed autism disorder.

The defense urged that the only injury Destiny sustained at birth was a fractured clavicle:

In awarding plaintiff $8,000,000 ($500,000 past – 6 ½ years, $7,500,000 future – 74 years), the jury clearly rejected the defense claims that there was no medical negligence and that the injuries were minimal. While the defense argued that there was no negligence, they did concede that Destiny was 50% globally delayed with speech and language deficits.

On appeal, the defense claimed that:

1. plaintiff should not have been allowed to present expert testimony that she had cerebral palsy since this was a brand new never before disclosed theory,
2. the trial judge committed an error requiring reversal when, without meaningful inquiry, she seated an alternate juror without defense counsel’s consent after discharging a deliberating juror who claimed there was intimidation inside the jury room, and
3. if the verdict on liability should be upheld the amount of damages was grossly excessive and should be reduced

The appeals judges agreed with the defense that the verdict must be reversed because of the juror dismissal and seating of an alternate without consent and they vacated the verdict (thus rendering the other two issues moot).

Here are the details as to the drama inside the jury room. After deliberations began, the lone female juror, “Juror Number 3,” ran out of the jury room and said:

“I’m not going in there again. I am not going to – I’m starting to physically fight and I’m not going to be in the room.”

Things were pretty crazy inside the jury room:

After speaking with the entire panel, the judge sent them back to deliberate further. The day ended with the jury having reached a partial (undisclosed) verdict. The next morning, Juror Number 3 delivered a note to the judge complaining that another juror had been intimidating and threatening and that he physically threatened another juror and yet other jurors had to intervene. Juror Number 3 wrote that she was not comfortable she could make a rational decision in the case.

The judge then dismissed Juror Number 3, seated an alternate juror and a full verdict was reached after four more hours of deliberation.

Alternate jurors are chosen during jury selection so that if, before jury deliberations begin, a regular juror dies or becomes ill or for any other reason is unable to perform his duty, an alternate will be available and seated. There is no provision in the statute, CPLR 4106, that contemplates seating an alternate after jury deliberations begin. That's because citizens in civil actions have a constitutionally protected right to a jury of six. Only if the attorneys all consent may an alternate be allowed to deliberate after deliberations begin.

Defendants in this case, though, did not consent. Had the judge conducted an inquiry into Juror Number 3’s concerns before discharging her then defense counsel may have consented but the judge’s dismissal of Juror Number 3 without meaningful inquiry was held to be improper and therefore seating of the alternate was also improper.

The question of whether $8,000,000 in damages was excessive was briefed fully by the parties on appeal but not resolved because it became moot. Should plaintiff again prevail on liability, it’s unlikely that such a sum would be sustained.

Here are some of the recent appellate decisions that sustained pain and suffering awards for brain damage in the multi-million dollar range (and plaintiff’s injuries in Avila v. City of New York do not appear to be nearly as severe as those in any of these cases):

• Lopez v. NYCHHC (1st Dept. 2000)- $3,100,000 for 30 years of future pain and suffering where infant suffered cerebral palsy, spastic quadriplegia and inability to speak, sit or walk
• Reed v. City of New York (1st Dept. 2003) - $2,500,000 for 30 years of future pain and suffering for multiple skull fractures and very substantial brain damage leading to memory loss, a permanent inability to lie down, total loss of smell, severe orthopedic disabilities and pain, depression and suicidal ideation 
• Paek v. City of New York (1st Dept. 2006) - $3,000,000 for 40 years of future pain and suffering for a 35 year old woman with permanent significant cognitive deficits affecting her memory, attention span and concentration as well as severe depression and constant pain from persistent headaches

Inside Information:

• Plaintiff did not seek an award of future damages for medical care. While not dispositive of whether there will be future pain and suffering, where there are no likely future medical costs the claim for future pain and suffering is often discounted by jurors. Not so in this case so far but with another jury that could be a problem for the plaintiff’s future pain and suffering claim.
• Plaintiff, age 6 at trial, had no physical disabilities, a normal gait and was described by her mother as a happy child who likes to dance and play.
• Plaintiff claimed that Destiny will never have functional communication, be able to live independently or hold a job.
• With a new trial, Destiny will have aged a few more years and the new jury will be better able to estimate her future damages, should plaintiff again prevail on liability.
   

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Just six months ago an appellate court upheld a $2,500,000 jury verdict in favor of Susan Midler, a woman in her 60’s, against her rheumatologist, Richard Crane, M.D., to whom she’d been referred for joint pain. She was later diagnosed with lupus and won her lawsuit against the doctor based on a jury's finding that he had not properly monitored her over the years.

This week, though, in Midler v. Crane, the decision of the intermediate appellate court was reversed by New York’s Court of Appeals (the state’s highest court) and the case sent back for a new trial because of impermissible inconsistencies in the jury's findings.

Court of Appeals Hall, originally known as State Hall, was completed in 1842. It's on Eagle Street in Albany, New York:

We discussed the intermediate appeals court finding, here. Readers will recall that the defendant had diagnosed the plaintiff with degenerative arthritis, ruling out kidney disease based, among other factors, on a normal urinalysis (one of the important tests for lupus).

Ms. Midler thereafter treated with an endocrinologist Joel Curtis, M.D. who conducted a urinalysis with an abnormal result. Dr. Curtis claimed he sent the results to Dr. Crane but he denied receipt.

Two and a half or so years after Dr. Crane first treated Ms. Midler, she was hospitalized for kidney failure, underwent dialysis and six months later a kidney transplant. She had lupus.

Dialysis machines filter blood and rid the body of harmful wastes, extra salt and water. Patients often need to sit for three hours or more 3-4 times a week.

The jury made several specific findings, the inconsistencies of which resulted in this week's reversal of the verdict and the mandate for a new trial:

• Dr. Crane was negligent in the manner in which he monitored the plaintiff, including not performing further urinalysis tests after her initial visit with him when that test was normal - and his negligence was a substantial factor in causing her injuries.
• Dr. Crane was not negligent for failing to diagnose the lupus.
• Dr. Curtis was negligent in not ensuring that the results of the urinalysis test he performed reached Dr. Crane - but his negligence was not a substantial factor in causing plaintiff's injuries.

In the new ruling, all seven of the judges on the Court of Appeals agreed with Dr. Crane – the verdict was impermissibly inconsistent in finding that his failure to monitor Ms. Midler was a substantial factor in causing her injury while at the same time also finding that the negligence of Dr. Curtis in failing to transmit his urinalysis results was not. Therefore, a new trial was ordered.

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As regular readers know, we rail against appeals court judges who issue decisions that fail to explain why they decrease (or increase) pain and suffering awards. Under CPLR 5501 and 5522, they are required to explain their reasoning when they rule on requests to decrease or increase awards.

In a new medical malpractice lawsuit decision, Walsh v. Brown (2nd Dept., 2010), the plaintiff has been left with $700,000 less than the $900,000 she was awarded after trial and without any adequate explanation why.

After being diagnosed with endometrial cancer, 66 year old retired schoolteacher Margaret Walsh consulted with Carol Brown, M.D., a gynecologic oncologist at Manhattan’s Memorial Sloan-Kettering Cancer Center. The doctor recommended and on February 14, 2005 performed a total abdominal hysterectomy, bilateral salpingo-oophorectomy and lymph node dissection – open surgery to remove the uterus, cervix and ovaries.

Here’s what the hysterectomy surgery looks like while it’s underway:

To perform the surgery, doctors used retractors, like the ones illustrated above, in order to obtain and maintain adequate exposure of the surgical site. That’s standard operating procedure. In this case, though, a retractor was improperly placed on and compressed the right sided femoral nerve injuring it and leaving Mrs. Walsh with femoral neuropathy.

The femoral nerve is located in the leg and supplies the muscles that help straighten the leg. It provides sensation to the front of the thigh and part of the lower leg.

The jury in Walsh v. Brown determined that:

1. the doctor was negligent in her placement of a retractor against the femoral nerve,
2. doing so injured the nerve (femoral neuropathy), and
3. plaintiff was entitled to a past pain and suffering award in the sum of $750,000 (4 years).

The jury declined to make any award at all for future pain and suffering.

On competing post-trial motions (plaintiff sought an increase in future damages while the defendant sought a decrease in past damages), the trial judge issued an order that $150,000 be added to the verdict – new total $900,000 ($750,000 past, $150,000 future). She did so because the jurors improperly ignored evidence (including the defense doctor’s testimony that plaintiff has permanent residual weakness in her leg).

Defendant appealed claiming that $750,000 was unreasonably excessive for past pain and suffering and that the trial judge should not have awarded any future damages at all. In addition, the defense claimed all along and on appeal that there was insufficient proof of any negligence; however that argument was rejected by the jury and all of the judges. As to the amount of damages, though, the plaintiff fared quite poorly with the appellate panel. Without any explanation at all, the judges reduced the past pain and suffering award from $750,000 to $200,000 and they reinstated the award of zero for future damages.

As to past pain and suffering, here’s what Mrs. Walsh endured for four years:

• an extra two weeks or so as an inpatient after hysterectomy surgery, 10 weeks in a nursing home, home therapy for 12 weeks and a year of outpatient physical therapy
• continued weakness of her quadriceps and hip flexor muscles necessitating use of a quad cane to walk
• sensory loss and absent knee jerk reflexes
• neuropathic pain syndrome – burning pain in her thigh and cramping

Here are the quad cane and other types of canes that are prescribed to help injured or disabled people walk:

Mrs. Walsh was a previously active woman who exercised regularly on a treadmill but now she'll never able to do so again. The jury saw fit to award $750,000 for her pain and suffering to the time of trial, the trial judge approved and then the appellate judges simply and without explanation concluded that $500,000 should be lopped off and Mrs. Walsh should get only $200,000 for her past pain and suffering.

As to future pain and suffering, there was testimony from doctors for both sides that the injury was permanent and that plaintiff still has right leg weakness which affects her ability to go up and down stairs, kneel and bend her knees. Mrs. Walsh admitted that she is much improved but claimed she still needs a quad cane to walk.

In overturning the trial judge’s decision to award future damages, the appellate court cited DeVito v. Ho (2nd Dept. 2006), however that case dealt with a simple wrist fracture (no surgery) that required no treatment after six months. Although DeVito claimed some residual weakness, there was other testimony that by the time of trial four years later, all of his accident injuries had healed. DeVito received $60,000 for past pain and suffering and nothing for future damages. Clearly, that case is distinguishable from Walsh v. Brown in that here the defense expert acknowledged permanence and continuing disabilities.

Inside Information:

• Mrs. Walsh had orthopedic problems that pre-existed her hysterectomy:  left hip osteoarthritis that needed surgery and many years before she had right knee pain from arthritis that was asymptomatic for the five years or so before surgery. The defense argued at trial and on appeal that because of these prior issues, her right leg at trial was no worse than it had been before the surgery so no future damages should be awarded.
• There was one case, Lalanne v. Nyack Hospital (2nd Dept., 2007), that both parties referred to in their appellate briefs as conclusive on the issue of past damages. It also involved medical malpractice in a hysterectomy that caused a femoral neuropathy. The 49 year old plaintiff there was awarded $750,000 for her pain and suffering ($150,000 past – 4 years, $600,000 future). The case was appealed but not on the issue of damages. Mrs. Walsh's lawyer, John Bonina, Jr., argued that Lalanne v. Nyack Hospital established that $750,000 for total pain and suffering for a middle aged woman with femoral neuropathy was within the range permitted to stand by the appellate court; while defendant argued that the case established $150,000 as the upper limit for Mrs. Walsh's four years of past pain and suffering.

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On October 15, 1998, Eung Maing, then 37 years old and 41 weeks pregnant with her first child, was admitted to St. Vincent’s Hospital in Queens, New York. The doctors determined that she had insufficient amniotic fluid and labor should be induced.

After a difficult 24 hours or so, a low forceps delivery was performed and baby Daniel was born.

His Apgar score was one out of 10 because of a faint heartbeat so Daniel was intubated and taken to the intensive care unit where he remained for six days. Upon discharge, he appeared to be in good shape. Two years later, though, Daniel’s parents noticed that he had an abnormal gait and he was diagnosed with mild cerebral palsy.

Mrs. Maing had her own medical problems. During the course of delivery she sustained a fourth degree laceration of her vagina that extended to her rectum. It was repaired in the hospital but she later developed a rectovaginal fistula and other extensive and long lasting gastrointestinal problems.

In an ensuing lawsuit against the hospital and the doctors, plaintiffs claimed that:

1. the doctors were negligent in their repair of Mrs. Maing's vaginal laceration and
2. Daniel should have been delivered via Cesarean section, like this:

As a result of the malpractice, plaintiffs claimed and in 2008 the jury agreed:

1. Daniel had sustained brain damage in his forceps delivery that left him with left side hemiparesis causing his walking problems as well as attention deficit disorder, and
2. Mrs. Maing had sustained permanent incontinence resulting in nine surgeries, including a diverting colostomy and the ultimate need of a permanent colostomy.

Daniel was awarded $7,150,000 for his pain and suffering ($150,000 past – 10 years, $7,000,000 future – 65 years) and Mrs. Maing was awarded $11,000,000 ($4,500,000 past, $6,500,000 future – 34 years).

On a post-trial motion, the trial judge issued a decision reducing the awards in Maing v. Fong as follows: to $2,650,000 for Daniel ($150,000 past, $2,500,000 future) and to $5,000,000 for Mrs. Maing ($2,000,000 past, $3,000,000 future).

In an appellate court decision released on March 30, 2010 in Maing v. Fong (2nd Dept. 2010), Mrs. Maing’s $5,000,000 pain and suffering award was affirmed while Daniel’s $2,650,000 award was deemed inadequate and increased to $4,150,000 ($150,000 past, $4,000,000 future).

Once again, New York judges have rendered decisions involving very serious injuries in which, without any adequate explanation, they ordered millions of dollars of modifications to jury verdicts for pain and suffering. The trial judge’s decision fails to state the reasons for reducing Mrs. Maing’s $11,000,000 jury award for her pain and suffering to $5,000,000; nor does the appellate court decision that affirmed that $6,000,000 reduction. And neither decision set forth any reason for disturbing Daniel’s future pain and suffering award (the trial judge reduced it from $7,000,000 to $2,500,000 while the appellate judges then increased it to $4,000,000).

Our research team at New York Injury Cases Blog has dug up the facts that the judges refused to divulge ( the foregoing details as to the injuries were not disclosed in either opinion) and we have uncovered the legal arguments made by the parties and the case precedents that applied.

The defense argued that Daniel’s future pain and suffering award was excessive, his injuries were more akin to an orthopedic problem than to brain damage and any characterization of Daniel’s case to the plethora of “brain damaged infant” cases (that often result in multimillion dollar verdicts) would be woefully misplaced. While Daniel was in poor condition at birth, he responded well to treatment and was discharged from the hospital after one week.

Daniel appeared to be developing normally until he was 2 ½ years old when a left foot inversion and weak left lower extremity dorsiflexion were noted. He underwent physical therapy, wore a foot brace and by the age of five he was rollerblading.

At trial, there was evidence that Daniel was an outstanding student with an IQ in the 97th percentile and he could run and had a normal gait except for inversion of his toes that was diagnosed as tibial torsion - a usually temporary early childhood condition in which the tibia is twisted inwards and looks like this:

Daniel’s lawyers argued that he has mild cerebral palsy but with profound consequences that will get worse as he gets older. They exhibited Daniel’s walk to the jury and, while not dramatic, they argued that it is awkward, he has a slight limp and he can’t play sports. His parents said he avoids using his left hand.

As to Daniel’s mental condition, a neuropsychologist testified that he has major attention and behavioral problems, is hyperactive and very impaired in his ability to handle daily living tasks. The expert acknowledged that Daniel is smart but concluded that he has moderate to severe attention deficit disorder which is permanent and will get worse.

The law (CPLR 5522) requires appellate courts to identify the reasons for their decisions in cases where they modify a pain and suffering damages verdict under their powers in CPLR 5501. They should look to comparable prior cases when adding to or reducing from a jury verdict. If any of them did so in Maing v. Fong, we have no indication.

Here are some recent cases in which significant awards were sustained on appeal for injuries similar to Daniel’s that the judges in his case failed to cite or discuss in their opinions:

• Lovett v. Interfaith Medical Center (2nd Dept. 2008) - $4,575,000 for a six year old who suffered brain damage at birth causing cerebral palsy, spastic diplegia, mental retardation, sleep apnea and motor skill deficits. He cannot communicate and is wheelchair bound.
• Flaherty v. Fromberg (2nd Dept. 2007) – $4,250,000 for a seven year old who suffered brain damage at birth causing cerebral palsy and spastic quadriplegia. He is fed by a tube and is totally dependent on his family and caretakers.

As to Mrs. Faing, the defense had little to rebut the gruesome nature of her injuries and treatment. It had been 10 years during she’d been undergoing surgery after surgery (nine in all) to try to remedy her incontinence (the details of which are very unsettling) and there was credible testimony that she’s going to need a permanent colostomy. The issue, therefore, was not so much the severity of Mrs. Faing’s pain and suffering but what figure represents reasonable compensation. Was it $11,000,000 as the jury said? Or $5,000,000 as the judges said? Or something more or less?

Here are some recent cases in which significant awards were sustained on appeal for injuries similar to Mrs. Faing’s that the judges in her case failed to cite or discuss in their opinions:

• Salmeri v. Beth Israel Medical Center (2nd Dept. 2007) – $1,820,000 for a 49 year old man who underwent four surgeries due to malpractice in treating his acute perforated diverticulum, suffered daily stomach pain, had to wear an abdominal binder and suffered from a fistula in his stomach.
• Herrera v. St. Martin (2nd Dept. 2006) – $3,000,000 for a 55 year old woman with total paralysis of her lower extremities and incontinence.
• Beverly H. v. Jewish Hosp. and Med. Center of Brooklyn (2nd Dept. 1987) - $700,000 for a woman who underwent an episiotomy during delivery of her child and over the next 18 months required four surgeries including a colostomy.

Inside Information:

• Mr. Faing presented a claim for loss of consortium. The jury rejected it and awarded him nothing at all. The trial judge found that $1,000,000 should have been awarded to Mr. Faing and the appellate court agreed.
• In Capone v. Ciancolo (Supreme Court, Kings County, Index # 37310/06; 2/27/10), a $5,000,000 jury verdict was rendered for pain and suffering in favor of a 48 year old man in a car accident who sustained a laceration of his colon requiring a colostomy (removed after eight weeks) and a hernia that required surgery. No doubt, the parties in that case will now look to the decision in Maing v. Fong in arguing for a reduction or affirmance of the verdict amounts.

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Shania-Gay Ffrench was 21 years old on February 3, 2000 when she went to the emergency room at Mount Vernon Hospital complaining of back pain. Doctors there suspected uterine fibroids and she was told to follow up with her primary care physician and her gynecologist. She did so.  She saw her internist Keith Edwards, M.D. who referred her to an orthopedist and she saw her gynecologist who performed a lysis of adhesions. Ms. Ffrench’s  pain persisted, though, and the cause was never diagnosed until a year later when an MRI revealed that her back pain was a product of a spinal tumor – an intramedullary astrocytoma (the white spot on the MRI).

The tumor took three surgeries and six years until it was finally and fully removed in 2007. Ms. Ffrench was left substantially unable to use her legs and she blamed her doctors for failing to diagnose and remove the tumor early enough so that her injuries could have been avoided.

A medical malpractice lawsuit was started (Ffrench v. Agnant - Supreme Court, Westchester County; Index # 14401/02) against nearly everyone involved in Ms. Ffrench’s care since 2000

After several years of litigation, on July 23, 2007, the judge issued an order absolving the neurosurgeon who removed the tumor and his hospital from any fault.

Four defendants settled after opening statements for a total of $875,000, as follows:

• $600,000 by the gynecologist and his practice,
• $100,000 by the initial hospital and
• $175,000 by a primary care doctor.

Dr. Edwards refused to settle and the trial proceeded against him alone.

Dr. Edwards based his defense on the fact that he had seen Ms. Ffrench only three times – on February 7, 2000 (for back pain), February 26, 2000 (to clear her for gynecological surgery) and July 6, 2000 (for a headache) and he never treated her again. Furthermore, he claimed, plaintiff herself bore responsibility because, in January 2001, her new primary care physician told her to see a neurologist and she didn't do so until July 2001 when the MRI confirmed the tumor.

On August 31, 2001 Ffrench underwent surgery with a neurosurgeon who planned to do a biopsy and “debulk” or remove as much of the tumor as possible. During surgery, though, a somatosensory evoked potential (SSEP) test was abnormal, indicating that the spinal cord had become dysfunctional. The surgery had to be stopped.

French remained hospitalized for six months and then underwent four months of rehabilitation. As of trial in July 2009, she was able to walk only short distances and only with forearm crutches and leg braces. She frequently required the assistance of a wheelchair.

The jury returned a verdict finding Dr. Edwards 30% at fault, the original hospital 25%, the gynecologist and his practice 25%, a primary care doctor 10% and the orthopedist 10%.

Then, the jury assessed damages in the total sum of $49,750,000 as follows:

• $29,500,000 pain and suffering ($4,500,000 past – 8 years, $25,000,000 future – 50 years),
• $18,450,000  medical expenses and rehabilitation services ($450,000 past, $18,000,000 future)

Defendant made a post–trial motion under New York’s CPLR 4404 seeking a judgment of dismissal notwithstanding the verdict arguing that:

• the plaintiff had failed to establish proximate cause -  i.e., that his alleged negligence (failing to refer plaintiff for neurological testing) actually caused plaintiff’s injuries,
• the verdict was against the weight of evidence because there were no medical records substantiating plaintiff’s claim that she complained of neurological symptoms (such as numbness in her legs) that would have led him to refer her for neurological testing, and,
• the amount of damages was grossly excessive

The trial judge denied the post-trial motion in a brief opinion that was devoid of any meaningful discussion of his reasoning. It’s not unusual for trial judges to give such short shrift to post-trial motions. Indeed, it’s well known and oft-stated that instead of delving into the issues, discussing the parties’ respective points and comparing the verdict amounts with other relevant prior cases, trial judges routinely leave it to the parties to appeal to the appellate division post-trial issues such as whether the jury’s verdict was against the weight of credible evidence or its damages awards were unreasonably excessive or minimal.

A notice of appeal has been filed and if this case doesn’t settle then the appellate court  will rule upon liability issues as well as damages and the appellate judges will most likely conclude that the $29,500,000 pain and suffering verdict is unreasonably excessive. Our analysis of appellate court decisions in which pain and suffering verdicts in the several millions of dollars range have been upheld indicates that the Ffrench verdict would be drastically reduced.

Generally, the largest sustained pain and suffering verdict cases involve paraplegia or quadriplegia. Here are some recent examples:

• Miraglia v. H&L Holding Corp. (1st Dept. 2007) - $10,000,000 for construction worker rendered a paraplegic after being impaled on a rebar
• Ruby v. Budget Rent A Car Corp. (1st Dept. 2005) - $10,000,000 for 25 year old rendered a paraplegic
• Desiderio v. Ochs (1st Dept. 2002) - $4,500,000 for infant with devastating neurological injuries including loss of gag reflex, inability to eat without feeding tube, inability to walk without assistance and brain damage

In contrast to the plaintiffs in Miraglia, Ruby and Desiderio, Ms. Ffrench, while undoubtedly in great pain and suffering tremendously, can walk with assistance, attend to her job (at a desk for a health insurance plan), cook and is able to participate - albeit with much difficulty -  in many other activities of daily living. It's extremely unlikely that an appellate court would sustain even one-half of the future pain and suffering award in the Ffrench case. And my guess is that the $29,500,000 would be cut by a lot more than one-half.

A so-called collateral source hearing is set in this case for next month. That’s where the judge will hear evidence about whether any part of the verdict for medical expenses and rehabilitation services will be replaced or indemnified by collateral sources such as insurance. If so, the verdict will be reduced to that extent.

Inside Information:

• Dr. Edwards asserts that plaintiff never proved what actually caused the loss of function in her legs; he also claims that damages against him should be limited to any worsening of plaintiff's condition from February 2000 to August 2001 rather than the sequelae of the surgery. Resolution of these issues on appeal may drastically affect the ultimate outcome in this case.
• After trial, plaintiff’s attorney requested that the judge allow him an increased legal fee (i.e., one-third of the recovery instead of the lesser statutorily prescribed sliding scale fee) due to the complexity of the case and the unusual amount of effort required to bring it to trial. Joined by his client and without opposition, the trial judge approved the request. It seems that plaintiff had a change of heart (and attorneys) because thereafter she filed a motion to reargue (denied) and a notice of appeal (pending) seeking a reversal of the fee increase decision.
• Before trial, plaintiff sought $950,000 to settle with Dr. Edwards. During trial, that settlement demand dropped to $600,000. Now, Dr. Edwards is exposed to a judgment of almost $15,000,000 (his 30% portion of the verdict).
• Dr. Edwards has $2,000,000 of malpractice insurance. Given the size of the verdict and the several years spanning the claimed negligence, though, plaintiff’s counsel may try to implicate two or more years of malpractice coverage so that there wold be more coverage, perhaps a total of $4,000,000. Such claims are not unusual in cases like this but here it would likely fail because of the very short period in which Dr. Edwards actually treated the plaintiff.
• Plaintiff’s attorney, Christopher Meagher, obtained another huge malpractice verdict in Westchester County in December 2009 - $61,000,000 (including $22,000,000 for pain and suffering) in Swanson v. Northern Westchester Hospital Center (Index # 16743/07) for a six year old boy with brain damage.

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On March 12, 2002, Thomas Dockery, a 34 year old cable splicer for Verizon, suffered a grand mal seizure in his sleep of unknown origin. He'd never before had a seizure so he was rushed by ambulance to Peninsula Hospital in Far Rockaway, New York.

At the hospital, a CT scan was interpreted as normal. An MRI two days later, though, was interpreted as showing a lesion that seemed to be a glioma (a central nervous system tumor) and Dockery was immediately referred to M. Chris Overby, M.D., a neurosurgeon, who concurred. A second opinion from Philip Gutin, M.D. of Memorial Sloan Kettering Cancer Center in Manhattan corroborated Dr. Overby’s diagnosis and surgery was set for March 25th.

At first, doctors thought Dockery had a brain tumor and here are several types:

A pre-surgical MRI on March 24th, though, indicated an inconsistent massive edema of the brain and Dockery underwent a craniotomy the next day during which pus in the lesion area was removed and found to be a non-tumorous abscess that had grown rapidly during the prior several days and caused an edema that produced herniation of the brain.

In a craniotomy, surgeons cut into the skull to access the brain, like this:

After several more brain surgeries, five weeks in the hospital and three and a half years of extensive rehabilitation, Mr. Dockery was left with severe aphasia – a loss of the ability to produce and/or comprehend language and a severe loss of memory.

Dockery (and his wife) sued claiming malpractice in the doctors’ failure to have properly and timely diagnosed his condition and removed the abscess by March 18th when his injuries could have been avoided.

During the trial, the judge dismissed claims against Peninsula Hospital and the doctors there but, in July 2007, after six weeks of testimony, a Queens County jury returned a verdict finding that there was malpractice by Dr. Overby (45%) and Dr. Gutin and his hospital (55%) and they awarded non-economic damages in the sum of $104,450,000.

                
Here’s how the $104,450,000 non-economic damages verdict broke down:

• Pain and suffering - $37,750,000 ($10,000,000 past – 5 years; $27,750,000 future – 36 years)
• Loss of consortium (wife's claim) - $66,700,000  ($18,000,000 past; $48,700,000 future).

Just before trial, Dr. Gutin and Memorial Sloan Kettering had settled for $4,400,000.

And just after the verdict, the trial judge dismissed the claims against Dr. Overby finding that the verdict against him was against the weight of the credible evidence (because he saw Dockery only once before Dr. Gutin took over and made a new diagnosis that was relied upon by Dockery and proved to be negligent).

The Dockerys thus gained no new money as a result of the trial because Dr. Gutin and Memorial Sloan Kettering had already settled and Dr. Overby's post-trial motion to dismiss the claims against him, notwithstanding the verdict, was granted.

In the ensuing appeal, plaintiffs claimed that the judge should not have dismissed the claims against Peninsula Hospital and its doctors, nor the claims against Dr. Overby. Conversely, the defendants argued that the dismissals were properly granted and, alternatively, that the damages verdict was grossly excessive.

On December 22, 2009, in Dockery v. Sprecher (2nd Dept., 2009), the appellate court upheld the dismissal as to Peninsula Hospital and its doctors, reinstated some liability against Dr. Overby (10%), found that Dr. Gutin and Memorial Sloan Kettering were 90% at fault and ruled that the non-economic damages should be reduced to $9,100,000.

Here are the non-economic damages reductions:

• past pain and suffering – from $10,000,000 to $1,000,000
• future pain and suffering – from $27,750,000 to $6,750,000
• loss of consortium – from $48,700,000 to $1,350,000

The jury had awarded $470,000 in economic damages (mostly for lost earnings) which the appellate court did not disturb so the resulting new total damages award is $9,570,000.

The net result is that plaintiffs' total recovery is now $5,357,000, as follows:

• $4,400,000 (the pre-trial settlement with Dr. Gutin and his hospital) plus
• $957,000 (Dr. Overby's 10% share of the new $9,570,000 verdict)

Inside Information:

• The appellate court decision was difficult to unravel as to what really happened and its practical effects. My colleague, Eric Turkewitz over at New York Personal Injury Law Blog has taken the court to task for its “tortured language” and the “open questions” its decision left for readers.
• If there were a retrial in this case, the looks on the faces of plaintiffs’ counsel and the trial judge (Hon. Duane A. Hart) when in court together again would be something to behold. Counsel claimed that the judge handled the lawyers and witnesses rather roughly and therefore made the unusual request that any retrial be held before a different judge. The appeals judges ignored that request (and the fact that this judge has been censured twice by the Commission on Judicial Conduct for his actions towards lawyers during trials).
• Counsel for Dr. Overby has indictated that he will make a motion to reargue this decision and/or for leave to appeal to the Court of Appeals based upon well settled law that provides one is not liable when one's negligence, if any, is superseded by an intervening act that caused the injuries complained of. Dr. Overby has long maintained that whatever he did or didn't do regarding Mr. Dockery could not as a matter of law result in a finding of liability against him because it was Dr. Gutin who took over treatment after only one day and Dr. Gutin's actions or inactions were the key to any malpractice. We will follow this case and report on any significant new developments.

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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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It’s not an uncommon situation in the ever-uncertain world of jury deliberations in personal injury and medical malpractice cases in New York and nationwide. After years of litigation, months of trial preparation and weeks of trial testimony, the jury is deliberating and each side again assesses its strengths and weaknesses. A settlement is finally discussed and appears to have been reached. The end? Usually, but not in one medical malpractice case that started in 1996 with surgery in Brooklyn and ended this week with an amazing appellate court decision.

On June 5, 1996, a 32 year old college math professor underwent a lengthy surgery to repair chronic instability in his left knee. Immediately following surgery, he felt severe pain in his right leg which was swollen and deformed. Turns out, he had deep venous thrombosis (DVT) in three veins in his right calf and was ultimately diagnosed with tibial and peroneal nerve damage and RSD resulting in permanent intense, burning pain in his right leg requiring lifelong narcotic pain medication.

The left leg (the one operated on) healed well; however, as to his right leg (the one not operated on and with respect to which he never before had any problems) Mahmoud Diarassouba sued his orthopedic surgeon and his two anesthesiologists claiming that their failure to reposition his right leg during the lengthy surgery was a departure from good and accepted medical practice that caused his right leg injuries.

These are the types of support stirrups used in knee surgeries:

Prof. Diarassouba won his case in 2003 when the jury found the doctors liable for $1,500,000 in pain and suffering damages ($500,000 past – 7 years, $1,000,000 future – 37 years). Here is a copy of the verdict sheet with the jury’s findings.

The defendants appealed the verdict against them on several grounds but mainly because certain evidence was improperly heard by the jury and other evidence was improperly held from them. The appellate court agreed, issuing a decision setting aside the verdict and directing a new trial.

The new trial was held in 2007. When the jury was deliberating a verdict, the parties appeared to have reached a settlement. Plaintiff’s attorney told the defendants’ attorney that plaintiff would accept defendants’ $150,000 offer and plaintiff’s attorney then told the court clerk who found and told the judge. At that time, though, the judge just received a note from the jury advising that they had reached a verdict!

Plaintiff’s attorney asked the judge to memorialize the settlement by putting it on the record – i.e., by stating the details in open court, having them transcribed by the court reporter and having defense counsel and the plaintiff himself state that they are in accord with and agree to the terms. The judge refused and told the plaintiff’s attorney that he would first bring in the jury and have its verdict read after which, the judge said, the parties would be free to do what they agreed to.

The jury was "out" - still in the jury room - when plaintiff's attorney advised the judge of a settlement:

The jury came in. The verdict was announced: the doctors were again found liable for pain and suffering damages, this time in the sum of $1,450,000 ($800,000 past – 11 ½ years, $650,000 future – 30 years).

This was a stunning development. Clearly, plaintiff had anticipated a defense verdict and had been eager to settle for a mere $150,000. Just as clearly, the jury found the defendants at fault and they assessed damages at 10 times the purported settlement figure. So: had the case already been settled for $150,000 or would the $1,450,000 verdict stand? Those were the questions in the second appeal in this case, a decision on which was issued this week holding that there was no legally enforceable settlement and the verdict stands.

At first glance, it looks like plaintiff was seeking to wiggle out of a binding agreement that he wished he hadn’t made since the verdict was so much more favorable. On close examination, though, the court’s decision makes sense and is fair. Before the verdict was announced, defense counsel had not acknowledged that a settlement had been reached. My reading is that the defendants were trying to have it both ways – hoping the verdict would exonerate them but if it didn’t and the verdict was more than $150,000 then defense counsel could claim (as he ultimately did) that a settlement had been reached for only $150,000.

Settlements during trial are common but to make them binding in the absence of a signed written agreement the law (CPLR 2104) requires the attorneys to place the settlement agreement on the record – typically meaning that they announce the details of the settlement in open court, before the judge, with the court reporter transcribing the statements and the settling parties themselves stating that they understand the terms of the settlement and agree to them. None of that was done in this case, in part because the judge wanted the verdict announced first and in part because defense counsel did not state that he or his clients acknowledged and agreed to the $150,000 proposal (that is, until after the verdict was read).

Inside Information:

• In the first trial, liability was apportioned 60% to the orthopedic surgeon and 20% each to the anesthesiologists but in the second trial the surgeon’s share was 30% and the shares of the other two were 35% each.
• Before the second trial, the surgeon settled with the plaintiff for $390,000.
• Since the surgeon was 30% at fault in the second trial, plaintiff’s total verdict of $1,450,000 was reduced by 30% as against the other two defendants and the plaintiff is entitled to only $1,015,000 from them. Since plaintiff already has $390,000 from the surgeon, his total recovery here is $1,405,000.

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In October, 2000, Susan Midler was referred by her gynecologist to Richard Crane, M.D., a rheumatologist. She had complaints of joint pain and he diagnosed her with arthritis after administering several diagnostic tests (including a urinalysis), two of which were positive for lupus erythematosis (an autoimmune disease that can affect vital organs).

Dr. Crane’s letter to the referring physician stated that continued monitoring was required to make a more definitive diagnosis as to lupus. He treated Ms. Midler for arthritis over the next two years but never again followed up with another urinalysis until January 2003 when he definitively diagnosed lupus nephritis (lupus affecting the kidneys). Ms. Midler’s kidneys rapidly failed, she underwent five months of three times a week dialysis (the process of cleansing the blood by passing it through a special machine) and then in December 2003 she underwent a kidney transplant.

A medical malpractice case followed and after a seven day trial in November 2006, a Manhattan jury concluded that the doctor had departed from good and accepted medical practice in the manner in which he monitored the plaintiff, including not performing urinalysis tests between October 2000 and January 2003. The jury then proceeded to evaluate pain and suffering and determined that this woman in her 60's sustained damages in the sum of $2,500,000 ($500,000 past, $2,000,000 future – 21 years). Both the liability and damages verdicts were upheld on appeal this week in Midler v. Crane.

As often occurs, the jury’s pain and suffering verdict was ruled upon by the appellate court without any significant reference to the facts supporting the pain and suffering figures. After extensive discussion of the treatment constituting the malpractice and the legal standards applicable thereto and after analyzing the testimony of the competing medical experts, the appellate judges addressed the substantial $2,500,000 damages award merely by stating: “ … the awards for pain and suffering do not deviate materially from what would be reasonable compensation ….”

Once again, we get from the appellate court canned language drawn directly from the controlling statute, CPLR 5501, without any guidance as to why the award was upheld.

What follows then are the missing details as to Ms. Midler’s pain and suffering:

• terrifying fear and pain during the eight months leading up to the definitive diagnosis of lupus nephritis in January 2003
• emergency hospitalization in May 2003 with life-threateningly low blood count
• dialysis three times a week for five months with pain, nausea, sickness and suicidal psychological effects
• kidney transplant surgery in December 2003
• constant fear of transplant rejection
• likelihood of additional dialysis (transplanted kidneys likely have a life span of 5-10 years)
• need to take immunosuppressant drugs to avoid transplant rejection

Inside Information:

• The jury found the doctor only 60% at fault and assigned 40% of the fault to Ms. Midler because she hadn’t returned to Dr. Crane before January 2003 after being directed to do so by another physician and also because she didn’t treat with a kidney specialist for a month after Dr. Crane told her she had lupus nephritis. So: the $2,500,000 verdict gets reduced by 40% and Ms. Midler’s take is not $2,500,000 but is $1,500,000 (before attorney’s fees and disbursements)
• Two of the five appellate court judges dissented from the liability finding of the majority and would have ordered a new trial because, they said, the liability verdict was inconsistent in finding that the doctor committed malpractice in failing to monitor his patient for the development of lupus while also finding that he was not negligent in failing to diagnose and treat her for lupus

UPDATE: On May 11, 2010, the decision of the court in this case was reversed by the Court of Appeals, New York's highest court and the new decision is discussed in a new post, here.

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In yet another significant New York personal injury lawsuit, an appeals court has modified downward a jury’s pain and suffering verdict with no explanation why, leaving the public clueless, judges and attorneys without guidance as to how to evaluate future cases and the plaintiff with $1,325,000 less than the jury awarded him. And the decision has forced me to dig out, gather and present here the missing information.

In Dehaarte v. Ramenovsky, the judges of the Appellate Division, Second Department last week issued a decision on the plaintiff’s appeal of an August 3, 2007 jury verdict in his case against doctors accusing them of medical malpractice. After a Kings County jury found in his favor , Kern Dehaarte, then 22 years old, was awarded pain and suffering damages in the sum of $1,750,000 ($250,000 past, $1,500,000 future) but the appellate court has now held that the award was unreasonably excessive.

Instead, the appeals court held the proper award should have been only $425,000 ($225,000 past, $250,000 future). And that’s all the court said. No mention at all of what the case was about – either how the plaintiff was injured or what the doctors did wrong. And no discussion at all as to why $1,325,000 should be lopped off the award. As we’ve repeatedly discussed (for example, here and here), New York law requires the appellate courts to state their reasons when they find a jury award should be decreased (or increased).

So once again it has fallen to our research team here at New York Injury Cases Blog to dig into the court files and the attorneys' records to discover and report the missing information. We learned that in February 1997 Kern Dehaarte was a 12 year old boy suffering with gynecomastia, a condition in which male breasts are enlarged and resemble female breasts.

Kern's mother took him to a pediatric surgeon who recommended and performed a subcutaneous mastectomy that ended up leaving the boy without a nipple on his breast.

The jury must have loved him or else hated the doctor because the jury award of $1,500,000 for 54 years of future pain and suffering was clearly excessive, in view of these facts:

• the main injury was a scar on the breast
• there was no evidence of any continuing physical pain from the scar;
• plaintiff claimed anxiety and depression but underwent no psychological treatment
• an analysis of similar injury prior cases (almost all of which involved women as that’s to whom nearly all breast injuries occur) showed that none could justify the large verdict because there was no evidence that plaintiff’s sexual identity or interpersonal relationships with women was impacted by his injuries

Appellate counsel for the parties submitted briefs on appeal that cited and discussed in detail several prior appellate cases in each one of which awards were made in mastectomy injury cases (e.g., Sutch v. Yarnisky, Motichka v. Cody and Ditingo v. Dreyfus). The judges in Dehaarte v. Ramenovsky, however, mentioned none of them.

Even more startling, the only case the judges did cite in discussing damages was Evans v. St. Mary’s Hospital of Brooklyn and that case was cited merely for the proposition that Kern Dehaarte’s $250,000 past pain and suffering jury award (10 years) should be reduced to $225,000. Evans v. St. Mary’s Hospital of Brooklyn, though, dealt with a $100,000,000 jury award ($30,000,000 past – 13 years, $70,000,000 future – 31 years) in a tragic medical malpractice case that was reduced to $1,800,000 ($800,000 past, $1,000,000 future).

In Evans, a 28 year old woman presented to a hospital emergency room with breathing difficulties and when doctors there improperly removed her breathing tube she suffered extensive and permanent brain damage.  Upon learning the facts in the Evans case (they were not reported in the decision), one wonders why the judges in Dehaarte (a mastectomy case) cited Evans (a brain damage case) as support for their findings as to damages.

Final Note: Some have said I’m on a mission to make the appellate judges explain more in their decisions. Perhaps that’s true to some extent; however, I want to make it clear that I have great respect for these judges. Most have deservedly risen through the ranks, are exceedingly intelligent and are extremely hard working public servants. They read through records on appeal and attorneys’ briefs that are, together, often more than 1,000 pages for a single case. And they  typically issue several hundred decisions each month.

So I don’t at all question the integrity, acumen, or commitment of our appellate court judges. What I do question, though, is why they can’t make it part of their procedure in personal injury lawsuit appeals to explain their reasons for an increase or decrease of a jury award and to cite prior cases with meaningful and helpful explanations of why they are relevant or controlling. In that way, practicing lawyers will be better able to evaluate and settle cases with the result that fewer cases will clog our court system and more realistic positions will be taken by plaintiff and defense lawyers on the cases that remain.

In the end, this extra effort I’m urging upon our appellate judges will result in less work for them because there will be fewer cases brought and fewer still appealed. That’s a win-win situation for all of us.

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We've added several newly released cases to the Nationwide Verdict Tracker at our sister site, Brain Injury FAQ. For details on these TBI and medical malpractice brain injury cases, click on the links below or just head over to the site.

Smith v. All Children's Hospital (FL)

Russnak v. Nigalan (NJ)

Hutchinson v. Colindres (FL)

Bianchi v. Demma (CA)

Ziadie v. Duong (FL)

Stanislav v. Papp (NY)

We will continue to follow all significant TBI and other brain injury cases as the information becomes available about verdicts or settlements. We will report results here and at Nationwide Verdict Tracker.

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New York firefighter Kevin Deane was skiing in lovely Vail, Colorado on April 1, 2007 when he fell and suffered a spinal cord injury requiring cervical discectomy and fusion surgery that was performed there without complication. When he flew back to New York City to undergo rehabilitation at Mount Sinai Hospital on April 6th, tragedy ensued. Kevin was admitted to the hospital that afternoon (a Friday) and he died about 60 hours later at 2:30 a.m. on April 9th (a Monday). He was 39 years old.

The cause of death was hemorrhage and aspiration of blood caused by the erosion of the surgically implanted hardware into the esophagus.

Here is what the hardware in the neck looks like after fusion surgery:

Claiming that this was a preventable death, a wrongful death lawsuit was filed against the hospital seeking not only damages for negligence but also punitive damages. It's extremely rare that a punitive damages claim (in which plaintiffs must prove reckless indifference) is even allowed to be considered by a jury in a medical malpractice case. And that's what the hospital argued here in making a motion to dismiss that part of the suit; however, the judge disagreed - strongly - and issued a decision released this week in Deane v. Mount Sinai Hospital. The punitive damages claim was allowed to proceed and be considered by the jury.

The judge stated that the hospital appeared to have made the following tragic mistakes:

• after his admission, no attending physician ever saw Mr. Deane during the 2 1/2 days at the hospital
• the weekend on call attending physician never showed up because he didn't get a hospital email advising him he was on call and no one followed up to tell him
• the other on call attending was unaware that her colleague had failed to show up for work and unaware that half of the 100 rehab patients (including Kevin Deane) were not under the care of an attending

It angered the judge that Mr. Deane was, as she described it, effectively abandoned for over two days prior to his death and that no one ever even tried to tell hospital administration that the on call attending was missing. This appeared to constitute gross negligence, recklessness and gross indifference to patient care as did the hospital's lack of a system in place that would alert an administrator when an on call attending failed to arrive. Although this was merely a pre-trial decision on a motion to have the punitive damage claim dismissed, the judge's strong language all but held as a matter of law that the hospital was reckless.

The decision was rendered two weeks before the trial date. Not surprisingly, the case settled (for an undisclosed amount) before the jury was picked.

Inside Information:

• Mr. Deane was unmarried and without children and therefore the damages that could have been awarded in this case were pretty much limited to those for his pre-death conscious pain and suffering during his 2 1/2 days at the hospital [the length of time a decedent suffers before death will greatly affect this element of damages, as we discussed, here and here]
• punitive damages against an employer (here, the hospital) for acts of its employees (here, the medical staff) are imposed only where management has authorized or participated in the reckless conduct - in this case plaintiff would have claimed that management's inaction regarding the faulty email notification system warranted a punitive sanction

Even though the judge felt there was recklessness in this case, it would have been up to the jury to make that finding, or not. And because punitive damages are so rarely awarded in New York medical malpractice cases, and the standard of proof is so high and strict, there may have been a successful defense appeal of such an award had it been made.

One thing is perfectly clear, though: this was a tragic death and no amount of money can ever rectify the loss to the family of this young man.

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Dolores Johnson was 70 years old when she suffered a stroke and had to undergo surgery for a clot on a pre-existing mitral valve. There was a danger that the clot would break off and block a blood vessel. After the surgery, Ms. Johnson never woke up and five days later she died. Cause of death: severe anoxic injury to her brain.

In her husband's ensuing medical malpractice lawsuit, the jury found that the cardiothoracic surgeon deviated from accepted medical practice in performing the surgery and in utilizing a relatively new technology called "heartport" (sometimes used as an alternative for the traditional aortic clamp).

Here is the traditional aortic clamp:

So, defendant's malpractice was established in Johnson v. Jacobowitz and plaintiff won the case but then came the issue of damages. To recover pain and suffering damages in a wrongful death case, as we've noted before, here and here, plaintiff must show that the decedent experienced conscious pain and suffering before her death. That's where the case fell apart for Johnson.

This week, the appeals court in Johnson v. Jacobowitz upheld the trial judge's finding that there was insufficient evidence of awareness on the part of Ms. Johnson to make out a case with respect to conscious pain and suffering. Therefore, the the trial judge was correct in refusing to allow the jury even to consider the pain and suffering issue.

Proving conscious pain and suffering is difficult in cases involving comas or so-called vegetative states. It can be done, though, through medical testimony such as a neurologist testifying about the testing he did and the observations he made. Family members and nurses can show that the decedent cried out in pain, winced and so forth.

Walsh v. Staten Island Obstetrics & Gynecology Associates, P.C. is an oft-cited case in this area. There, an appeals court upheld a verdict of $650,000 in the case of an infant in a vegetative state for his entire eight year life. The court found that his level of awareness was established by testimony that he cried when he received painful stimuli and smiled and laughed at pleasurable stimuli.

Colombini v. Westchester County Health Care Corp. is a tragic case involving the death of a six year old boy. Michael Colombini was at the hospital undergoing magnetic resonance imaging when he was struck by an oxygen tank as he lay inside the MRI machine. He died from his injuries 53 hours later.

This is an MRI machine similar to the one in the Colombini case:

A medical malpractice case was brought by Michael's parents against the hospital and several others including the machine manufacturer, nurses, technicians and doctors. Damages were sought for Michael's pain and suffering. Additionally, plaintiffs claimed punitive damages (recoverable when a defendant engages in willful or wanton conduct evidencing an utter indifference for the safety of others). Much of the still pending litigation from this 2001 accident relates to the punitive damages claim (trial judge's July 2009 decision here) and the claims against defendants other than the hospital (which acknowledged its responsibility early on and offered $1,000,000 to settle).

The issue of pain and suffering in the Colombini case made its way to the appellate court. Both sides submitted medial affidavits.

• Defendants' neurologist claimed that because Michael had been sedated before the MRI procedure, he was already unconscious at impact and that after impact the brain damage from the impact made him unable to feel pain.
• Plaintiffs, however, submitted an affidavit from an anesthesiologist who stated that the sedatives merely put Michael into a tranquil state and that he was awake and experienced significant pain and suffering.

The appellate court in the Colombini case found that the competing medical affidavits resulted in issues of fact to be determined by a jury as to whether Michael did indeed experience conscious pain and suffering.

Whether plaintiffs prevail in the Colombini case as to pain and suffering or not, they will still face the fact that it was only two days after the accident that death occurred. Courts have necessarily addressed the issue of the amount of time a decedent suffered before death and have adjusted pain and suffering awards accordingly, as we discussed here.

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It's rare that the Court of Appeals, New York's highest court, rules on the proper amounts for pain and suffering in accident or medical malpractice cases. Usually, jury verdicts are challenged by the aggrieved party at the trial court level (a post-trial motion addressed to the trial judge) and/or at the intermediate appeals court level (one of the four statewide Appellate Division courts). Last week, though, the Court of Appeals weighed in on the pain and suffering verdict in a medical malpractice case.

Lang v. Newman (link is to Court of Appeals decision; Appellate Division decision is here) involved the claims of a 26 year old woman who woke up on January 14, 2003 with weakness on her left side, lightheadedness and tunnel vision. After an ambulance took her to the hospital, she also complained of nausea and a severe headache. Ms. Lang was given a CT scan (it was negative), medicated, observed, offered a lumbar puncture (she declined) and after a couple of hours she was feeling much better, had no pain and the difficulties on her left side seemed to have abated. She was discharged to home with a diagnosis of migraine headaches (from which Ms. Lang suffered in the past).

Within hours she was back in the hospital and ultimately diagnosed with an ischemic stroke (a cerebral infarction caused by an inadequate supply of blood and oxygen due to a blocked artery).

She then sued the doctors.

Liability against one of her doctors was found by the Cortland County jury which concluded that the doctor prematurely discharged her from the hospital without further observation and treatment. While it was ultimately determined that Ms. Lang had already been suffering from a stroke when she first came to the hospital, the doctor was found to be liable for $300,000 in past pain and suffering damages (four years from the incident to the trial date) because of expert testimony that timely admission and treatment would have made the effects of the stroke less severe.

Plaintiff sought in addition substantial future pain and suffering damages claiming that sensory changes on her left side, a seizure disorder and worsening anxiety were all caused by the malpractice and are permanent. The jury's refusal to award her anything at all for the future was upheld by the appeals court.

The defense presented evidence that the plaintiff's seizure disorder had fully resolved by the time of trial and that whatever other symptoms she complained of were mild, subjective and could not be quantified. The trial judge concluded (and the appeals courts agreed) that it was not irrational for the jury to conclude that the majority of plaintiff's symptoms resolved prior to trial and that those that remained were either so minimal as to warrant no compensation or not satisfactorily proven by objective, credible medical evidence.

This was a hard fought case both on liability and damages grounds. The defense doctors claimed no liability because plaintiff's stroke had already occurred before she came to them and it seems there's merit to that position. Unfortunately, the jury, the judge and two banks of appeals courts judges (except for a lone dissent at the Appellate Division) disagreed. The plaintiff claimed she should be awarded millions in future damages because of the lifelong effects of the stroke (she was only 26 at the time); however, the jury clearly agreed with the defense that either she had already fully recovered or that whatever deficits she was left with could not - because she already had the stroke before being treated by the defendants - clearly be assigned to the malpractice.

Both sides walked away from this case feeling the sting of a loss.

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The first thing many new mothers ask, even before seeing their newborns, is: "Are there 10 fingers (and toes)?" Of course, the answer is almost always "yes." Fingers can, though, be lost - amputated - later in life and when that happens it's usually due to an accident with a lawnmower or a power saw. And then the lawsuits follow.

As usual, we focus here on how pain and suffering is evaluated by juries and judges in New York injury cases. And as you might have guessed already, this post will discuss recent finger amputation cases. While that seems like a narrow topic, and one that might result in a small range of monetary recoveries, the opposite is the fact. That's because some cases involve amputations of just one (or just part of one) finger; while others involve two, three or more fingers. Then, there's the issue of which finger - we all know that thumbs, for example, are much more important to function than pinky fingers.

For a review of  hand and finger anatomy, see our post on hand injury pain and suffering verdicts here which includes diagrams of the phalanges (the finger bones).

The most recent case, Nisanov v. Black & Decker (U.S.), Inc. involved a 31 year old man who was using an old electric corded lawn mower. After mowing the lawn one day, Mr. Nisanov turned the mower upside down and began to remove grass clippings that had accumulated. Despite a warning on the machine of which he was aware, he did not unplug the mower and its blades restarted while he was removing the clippings. He suffered total amputations of his left hand's index, middle and right fingers, his left pinky was partially severed and his left thumb was lacerated. The jury found that Mr. Nisanov's pain and suffering damages totaled $2,000,000 ($600,000 past, $1,400,000 future) but it also found that Black & Decker was negligent in its design of the mower but it also found that Mr. Nisanov was 90% at fault for his own injury. Therefore, his net recovery was $200,000 (10% of the pain and suffering sum).

Do not stick your hand into a lawnmower or you may come out missing fingers:

Nisanov  made a post-trial motion challenging the 90% comparative negligence finding against him as well as the jury's $600,000 past pain and suffering verdict. He contended that $600,000 was too low for his pain and suffering for the five year period from the date of the accident to the date of the verdict. He did challenge the future pain and suffering figure.

On April 9, 2009, the trial judge issued a decision on the motion in the Nisanov case finding that the $600,000 past pain and suffering award was within the range of reasonableness and would not be modified. Also, the judge declined to disturb the jury's finding that plaintiff was 90% at fault. There will be no appeal.

In McKeon v. Sears, Roebuck & Co., a carpenter had four fingers of his dominant hand fully amputated and reattached. There, the jury verdict of $1,350,000 ($810,000 past, $540,000 future) was upheld by the appellate court. That decision was relied upon by the plaintiff in the Nisanov post-trial motion for the proposition that $600,000 was unreasonable for five years of pain and suffering. While the injuries appear to have been similar, the $210,000 difference between the two past pain and suffering awards was not significant enough for a trial judge or an appellate court to step in and modify upward. The courts will modify upward or downward only when the jury verdict is not in a range of figures that is reasonable. 

Here are the other important finger amputation cases insofar as pain and suffering damages is concerned:

•  Hudson v. Lansingburgh Central School District - $240,000 Rensselear County jury verdict for pain and suffering ($90,000 past, $150,000 future) affirmed for a 14 year old boy who cut off a portion of the middle finger of his nondominant hand while operating a jointer-planer in technology class. He underwent surgery to amputate the finger at the proximal interphalangeal joint, which separates the lower and upper halves of the finger. Plaintiff was found to be 35% at fault so the his actual recovery was reduced to $156,000.
• Bradshaw v. 845 U.N. Limited Partnership - $85,000 ($50,000 past, $35,000 future) upward modification by appellate court for pain and suffering involving the amputation of the distal portion of plaintiff's ring finger following a workplace accident in which a rebar caught on and partially severed the finger. The Manhattan jury had returned a verdict of $50,000 for past pain and suffering but nothing at all for for the future. The appeals court fond $35,000 should be added because the plaintiff would experience hypersensitivity in the remaining portion of the finger for the balance of her life.
• Leon v. J&M Peppe Realty Corp. - $850,000 pain and suffering verdict ($100,000 past, $750,000 future) affirmed by appeals court for a 26 year old carpenter who suffered a partial amputation of his three middle fingers while working on a circular saw like this:   
  The Bronx County jury had awarded plaintiff $100,000 for his four years of past pain and suffering plus $1,500,000 for 40 years in the future. The trial judge, though, reduced the future award to $750,000 and it's the trial judge's $850,000 total that was affirmed by the higher court.
• Huang v. Cherry Avenue Corp. (Index # 12201/05; Supreme Court, Queens County; 12/5/08) - $467,700 pain and suffering verdict ($200,000 past, $267,700 future) for a 42 year old mason in a construction site accident in which the tip of his left, nondominant hand's index finger was detached after it became caught between a hoist's hook and the hoisted material. Doctors were not able to reattach the detached portion of plaintiff's finger and they shaved a portion of the exposed bone and sewed skin into the open wound.

Inside Info: Plaintiff was willing to settle before trial for $325,000 but defendants' offer was only $75,000.

• James v. Queens Long Island Medical Group (Index # 17741/03; Supreme Court, Queens County; 3/8/07) - $950,000 pain and suffering verdict ($350,000 past, $600,000 future - 19 years) for a 7 year old girl who fell at school and sustained a chip fracture of the proximal phalanx of the ring finger of her left, nondominant hand. Doctors splinted and wrapped her hand but when she returned for follow-up medical treatment two weeks later her finger was necrotic and she had to undergo a surgical amputation of the distal phalanx followed by several months of physical therapy. The jury found that the doctors had committed medical malpractice. The defense contended that the $950,000 verdict was excessive and made a post-trial motion to it set aside . During the pendency of that motion, the parties settled the case for $700,000.
• Silverman v. State of New York  - $650,000 judge's decision for pain and suffering ($250,000 past, $400,000 future) for a 44 year old prison inmate injured in a carpentry class while working with a table saw that did not have a safety guard. Plaintiff sustained amputations of the digits of his thumb, index, middle and ring fingers of his left, nondominant hand. The award was reduced by one-half due to plaintiff's contributory negligence.

Finger amputation accidents are typically quite gruesome and can result in very significant pain and suffering verdicts that are sustainable. On the other hand (pun not intended), these cases often involve accidents in which there is a very significant amount of culpability on the plaintiff's part and then the award will be reduced accordingly. We will continue to follow new finger amputation cases as they arise.

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Nine years after the fact and 2 1/2 years after the jury verdict, all of the parties in a medical malpractice case have been ordered back to court for a retrial because of the trial judge's error in refusing to ask the jurors individually whether in fact their unanimous, individually signed written jury verdict exonerating the defendant doctors of any fault was in fact their verdict.

This case has drawn the attention of the press (for example, here) and bloggers such as New York medical malpractice lawyer Eric Turkewitz.

In a decision last week by New York's highest court, the Court of Appeals held in Duffy v. Vogel that parties in a civil lawsuit have an absolute right to have the judge poll the jury (i.e., ask each juror, after the foreman reads aloud their verdict, whether he consents to the verdict) and that whenever that requirement is not met a new trial must be held - no matter how harmless it may appear to have been. The high court overturned an intermediate appellate court's 3-2 decision reinstating the jury verdict.

This decision breaks new ground in New York. There is an existing statute in the Criminal Procedure Law (Section 310.80) that requires polling in criminal cases; however, the requirement to poll juries in civil cases has no statutory basis and courts have applied the rule over the years but did not mandate a new trial for failing to poll a jury when the failure was found to be harmless error. The Court of Appeals has now effectively usurped the legislature and written new law. That argument was persuasively made by Daniel S. Ratner, the highly esteemed appellate counsel for Dr. Jacobs, but to no avail.

Who will be the new jurors and will they make the same findings?

Eleanor Duffy is a 52 year old woman with permanent fecal incontinence and permanent nerve damage in her vagina which she believes were caused by the malpractice of two physicians - her internist James Vogel, M.D. and her gynecologic oncologist Allan Jacobs, M.D. She sued them both in 2002 claiming that her injuries stemmed from their failures two years earlier when they treated her for complaints of pain in her pelvic area. She said that the doctors should have diagnosed a subsequently discovered tumor in her pelvis that would have been apparent had they ordered imaging studies such as an MRI, performed a biopsy and more thoroughly examined her.

An MRI study may have avoided the litany of litigation and, more importantly, Ms. Duffy's tragic injuries

After four years of litigation and a three week trial, on November 17, 2006, a jury in Manhattan answered "no" to each of many questions put to them regarding whether Drs. Vogel and Jacobs committed malpractice. Drs. Vogel and Jacobs were thus exonerated.

That should have been the end of it. Case closed. But in its 11 page verdict sheet (on which the trial judge told the jury to insert yes/no type answers to 21 listed questions), the jury stated that two other doctors (Arie Liebskind, M.D. and Martin Feuer, M.D.), who had also treated Ms. Vogel over the years, committed malpractice that caused Ms. Duffy's injuries and the jury then calculated plaintiff's pain and suffering damages as $1,500,000.

The problem is that neither Dr. Liebskind (a radiologist from 1996) nor Dr. Feuer (an internist) were sued by Ms. Vogel and they  were not defendants in this lawsuit. And, the jury was specifically told by the judge in advance to disregard the damages question should they (as they ultimately did) find that the defendants (Drs. Vogel and Jacobs) had not committed malpractice.

• The jury did find that there was malpractice:  but only by non-parties Drs. Liebskind and Feuer

Insider's Information:

• The fault of the non-party doctors was discussed at trial because it would be relevant if, but only if, there was fault on the part of the defendant doctors (the percentage of responsibility for payment of damages by defendants found liable is adjusted downward when there are non-party persons who are found to be at fault as well)
• Dr. Liebskind was not sued because the 2 1/2 years statute of limitations had run as against him
• It's not clear why Dr. Feuer was never sued - given the jury's finding that he committed malpractice in April 2000 by failing to order imaging tests such as an MRI. Perhaps he should have been sued and perhaps plaintiff's attorney was negligent in not adding him to the lawsuit - irony indeed.
• The jury's confusion became apparent when during deliberations they sent out a note to the judge asking: "If we find named non-parties liable for her damages, are they responsible for any, if any of the compensation?"
• Instead of answering directly, the judge then told the jury: "The percentage that is attributed to whoever you do attribute to ... then becomes a factor that is used as to that person's responsibility towards the total amount of whatever the damages are."
• The judge was Donna M. Mills who was a year earlier censured by the New York State Commission on Judicial Conduct for acting inappropriately following her arrest for DWI (for which she was acquitted) and for conduct that undermined public confidence in the judiciary.
• The judge could easily have avoided all of the post-verdict appeals and the upcoming retrial had she simply polled the jury as plaintiff's attorney had requested. All she had to do was ask each juror: "Was the verdict just announced by the foreman in all respects your verdict?" No doubt, each juror would have said "yes" since each had already signed the verdict sheet.

Clearly, plaintiff and her attorney are elated with the current appeals court decision. They believe that the jury intended to award her money damages and they will now get a second chance to try to convince a  jury that Drs. Vogel and Jacobs committed malpractice (though there's still no way to sue Dr. Liebskind because the statute of limitations ran against him and now the same is true as to Dr. Feuer).

The defendants and their attorneys are upset and rightfully so. They prevailed in a 16 day trial with 11 expert witnesses and it was clear that the jury exonerated them completely. Now, they must prepare again for trial, this time with a new jury (and we know how different jurors can come to stunningly different verdicts even though the facts and the parties are the same).

As the dissenting judge in the Court of Appeals said: requiring a new trial is a "gross injustice" and a "nightmarish result." Defense counsel went further, calling the order for a new trial so that jurors can be polled "a travesty of justice."

We will follow this case and report on developments.

• Prediction: The case will not settle and will be retried. The defendants will prevail. Again.

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