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

We wrote about this tragic case last August, here, and can now report that the estate of Michael Colombini has settled all of the claims arising out of his death in 2001. Bearing full responsibility, Westchester County Health Care Corp. (the formal name of Westchester Medical Center in Valhalla, New York) has agreed to pay $2,900,000.

Michael Colombini had been undergoing a magnetic resonance imaging (“MRI”) test at the hospital on July 26, 2001 when a hospital nurse brought an oxygen tank into the MRI room and, as it was made of ferrous metal, the oxygen tank was propelled missile-like into the machine where it struck Michael’s head as he lay sedated being tested for a brain tumor. He died two days later.

This type of oxygen tank, made of aluminum alloy, is ideal for MRI departments where non-ferrous materials are a must:

Within days, the hospital assumed full responsibility and later offered $1,000,000 to settle quietly. The offer was declined and extensive litigation ensued not only against the hospital but also against nine other defendants (including doctors, a nurse, technicians, the MRI suite administration company and the MRI manufacturer). Claims were made for wrongful death, pre-death conscious pain and suffering and punitive damages.

After nine years of pre-trial discovery (such as depositions and document exchanges), motion practice (the defendants sought dismissal on technical grounds more than once) and an appeal, the hospital increased its offer by nearly three-fold and the case is now over. A court order approving the settlement was signed last week.

The settlement is significant because it's a large recovery by New York law standards for the death of a child (the New York State Trial Lawyers Association vigorously opposes as unfair the limiting laws in New York regarding damages allowed in child death cases). And, to the extent that the settlement represents a recovery for Michael’s pain and suffering, $2,900,000 appears to exceed the amounts sustained in appeals in all prior New York cases dealing with short periods of pre-death pain and suffering.

So why did the hospital pay so much to settle? Three reasons:

1. looming punitive damage claims
2. the possibility of a significant emotional distress verdict in favor of Michael’s father (who was at the scene) and
3. the tenacity and reputation of the Colombini family lawyers Tom Moore and Matthew Gaier

Punitive damages are very rarely awarded or sustained on appeal in a negligence or medical malpractice case. They are viable only when it’s proven that a defendant engaged in conduct evincing an utter indifference or conscious disregard for the safety of others.

In this case, that claim was made against several defendants but as to the operator of the MRI suite – University Imaging Medical Corp. (“UIM”) – it looked like there was a good chance plaintiff would prevail.

UIM made a motion back in 2004 to have the punitive damages claim against it thrown out. The trial judge granted the motion and tossed the claim; however, on appeal in 2005 the appellate court reinstated the punitive damage claim against UIM.  Plaintiff was prepared to prove that UIM, which was responsible for MRI safety and training, had wantonly ignored safety practices in the MRI suite in allowing ferrous materials near the MRI magnet.

The punitive damage claim against UIM was a big, open item and had the jury agreed UIM should be punished then the assessment would likely have been several million dollars (it’s nearly always many, many multiples of the actual or compensatory damages awarded).

Emotional distress claims are recognized in New York courts for people not physically injured in an accident when they were within the “zone of danger” and feared for their own safety. When he rushed into the MRI suite after the oxygen tank hit his son, Mr. Colombini testified that he was indeed in fear. The appellate court, in its 2005 ruling in this case mentioned above, found that there was an issue of fact as to whether Mr. Colombini was in the zone of danger and he was permitted, therefore, to present his emotional distress claim before a jury at trial.

In a July 6, 2009 decision, though, the trial judge dismissed the emotional distress claim. The judge said that Mr. Colombini had not shown that the defendants owed him any duty of care and he had not shown he really feared for his own safety. This ruling was puzzling in that the judge reversed her own prior ruling in 2004 that allowed this claim to proceed.  Plaintiff’s counsel no doubt felt that had this case not settled then the father’s emotional distress claim would have been reinstated on appeal and that a very substantial sum would have been awarded directly to the father for his emotional distress.

The law firm of Kramer, Dillof, Livingston & Moore is without question one of the top plaintiff’s medical malpractice law firms in New York. In this case, partners Thomas A. Moore and Matthew Gaier superbly represented the Colombini family and reached the best result that anyone could have. “Tommy” Moore has become a legendary figure in the New York courts on behalf of malpractice victims. It is not an exaggeration to say that in this case, the defendants paid top dollar and then some because Mr. Moore was ready to try the case. That’s not to say he’s infallible -- he has critics and, like anyone who tries many cases to verdicts, he's been defeated -- but it is to say that the $2,900,000 settlement in this case is probably more than would have been sustained on an appeal of a jury verdict in that amount or higher.

I pause before I close this post with a thought and a prayer for Michael Colombini and his wonderful family. They are good people who've suffered tragedy beyond words. May Michael's soul be bound up in the bond of eternal life and may his family know no more sorrow.

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A significant element of damages in New York wrongful death personal injury lawsuits is pre-death pain and suffering. This can be very difficult to prove (as opposed to other elements such as the decedent’s future lost earnings).

Here’s Pattern Jury Instruction 2:320 which is what New York judges tell juries about pain and suffering in death cases:

• “As to the claim for damages sustained by [the decedent] before he died, plaintiff is entitled to recover such sum as you find will fairly and justly compensate for the pain and suffering actually endured by the decedent during such time as he was conscious from the moment of injury to the moment of death.”

In the case of someone who clearly suffers a great deal over a long period of time before he dies (for example a burn victim who undergoes many painful procedures over many months before dying, or a malpractice victim who has medical complications, pain and extensive suffering for years before death), the pre-death conscious pain and suffering claim is apparent and may be quite substantial (in the millions of dollars).

The difficult cases are those like the two that were ruled on recently. One involved a hospital patient who choked to death on his lunch; the other a woman walking down the street who was struck by a falling tree.

In each case, death resulted in a very brief time after the negligence. In one, it was only seconds later; in the other, it was a half-hour or so.  In both, substantial jury awards were made for pain and suffering -  in one case the appellate court affirmed $350,000 for a few seconds of pain and suffering; in the other it approved $800,000 for a half hour of pain and suffering.

Perez v. St. Vincent’s Hospital dealt with the death of a man who presented to the emergency room with urinary difficulties. Anastacio Perez was diagnosed with alcohol withdrawal and consequent dehydration and admitted for treatment. Since he had previously suffered throat cancer and could not eat sold food, his doctors issued orders that he was to receive no food or drink by mouth.

Several days later, though, on the day of his scheduled discharge home, when his condition had improved, Mr. Perez was given solid foods for lunch (chicken and cucumber) which he started to eat. He choked on the food as one of his sons came to visit him.

A sign like this on his hospital door (NPO means nothing by mouth) may have saved Mr. Perez:

What followed was a frantic scene in which Mr. Perez clutched his throat, flailed his arms and had a look of terror in his eyes. Attempts to save him failed and he was pronounced dead an hour or so later. The jury returned a verdict for pre-death pain and suffering in the sum of $1,500,000 and on appeal the court reduced that to $800,000.

The defense argued that certain hospital records indicated the choking incident began 35 minutes before death was pronounced while plaintiff argued that the period was as much as an hour and a half (based on when a family member said the incident began). Medical experts testified trying to calculate the period of suffering based on known facts, the autopsy report and certain assumptions.

In any event, it was clear that whether Mr. Perez choked to death over a 15 minute period, 35 minutes or 90 minutes, it was a gruesome scene and a horrific way to die. And the appellate judges agreed in determining that $800,000 was reasonable for pre-death pain and suffering.

In Segal v. City of New York, 52 year old Hinda Segal’s skull was crushed and she was killed by falling tree limbs. Walking with her daughter on a Brooklyn street one fine summer morning in July 2003, a storm broke out and overhead tree branches broke off and hit Mrs. Segal in the head knocking her to the ground. Her daughter, Shifra Berger, had been walking with her hand in hand. They saw the tree falling and Shifra saw her mother try to get the branches out of her face, heard her mother call out, saw her mother get hit and felt her mother squeeze her hand as she lay dying on the sidewalk.

Mrs. Segal never had a chance; a warning like this might have saved her life:

An ambulance came quickly but Mrs. Berger was pronounced dead 45 minutes later. Cause of death: skull fracture with avulsion to her head and massive blood loss.

At trial, negligence against the city was proven (and affirmed on appeal) because it failed to discover that the tree was rotted and could fall and it failed to take any steps to prevent this type of foreseeable incident.

Shifra Berger (decedent’s daughter) suffered a huge emotional loss, succumbed to severe post-traumatic stress disorder and the jury returned a verdict of $1,750,000 for her emotional distress (modified downward by the appeals court to $1,250,000)

In an attempt to establish pre-death pain and suffering, plaintiff called upon Lone Thanning, M.D. , a forensic pathologist, who testified that Mrs. Berger survived for a mere 8-10 seconds (half being pre-impact terror and half being post-impact consciousness). The city’s expert, Adhi Sharma, M.D., an emergency medicine specialist, testified that there was no evidence of any pre-impact terror or any conscious pain and suffering at all after Mrs. Berger was struck. He concluded that Mrs. Berger’s squeezing of her daughter’s hand was not willful but merely reflexive.

The jury rejected the city’s expert and found that Mrs. Berger had indeed suffered great pain and suffering and pre-impact terror, if only for a few seconds. For conscious pre-death pain and suffering the jury awarded $350,000 and that sum was upheld as reasonable by the appellate judges. They ruled that the evidence was sufficient for the jury to award damages and that the jurors were free to accept one expert’s opinion and reject the other’s.

The $350,000 verdict for pain and suffering in Segal v. City of New York, for less than 10 seconds of pre-death consciousness, appears to break new legal ground.

Here are the other important appellate court New York injury cases ruling on brief periods of pre-death pain and suffering (none of which dealt with less than a couple of minutes of pain and suffering):

• Glaser v. County of Orange (2008) - $350,000 for 2-3 minutes after a truck’s axle struck decedent in a car accident
• Givens v. Rochester City School District (2002) - $300,000 for five minutes of pain after decedent was stabbed and he then lost consciousness and was pronounced dead within the hour
• Gersten v. Boos (2008) - $350,000 for 5-10 minutes of pain after a car accident and some indications of responsiveness while in a coma over the next 11 days before death
• Ramos v. Shah (2002) - $450,000 for a day of pain from dehydration and some level of consciousness in a coma for several days before death
• Bennett v. Henry (2007) - $400,000 for about 20 minutes of pain from a pedestrian knockdown car accident before death was pronounced 10 hours later

No prior reported appellate decision has sustained an award for mere seconds of pre-death pain and suffering. Our review of the record and conversations with attorneys in the Segal case indicates that it was superlative trial and appellate advocacy that’s responsible for this stunning result. Trial counsel Alan M. Greenberg and appellate counsel Jay Breakstone presented this case to the jury and the judges in such a fashion as to convince them that Mrs. Berger had in fact been aware of what was happening to her and felt pain as she died.

The key was to present sufficient factual evidence to give the jury a legal basis to award the damages and that’s just what the appeals court stated was done. Once there was a legal basis for the jury to award damages, then, the lawyers urged and the jurors judges agreed, $350,000 was not an unreasonable sum and the amount should not be (and was not) disturbed.

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It’s as simple as A-B-C. The Alcohol Beverage Control Law has long provided that it is a crime to sell alcohol to a visibly intoxicated person. Violation of the A.B.C. Law will expose the seller to a lawsuit for civil damages too. We visit two new cases that made their way to appeals courts this month, each starting with a drunk driving car accident and tragic injuries.

Julie Oursler died on 10/27/02 at 3 a.m., after several hours of drinking at a bowling alley in Buffalo, New York. Walking along the side of a road, she was struck by a car and later run over by a police officer responding to a 911 call made by the fellow who hit her.

Four years later, on 10/29/06 at 5 a.m., Kathleen O’Gara was seriously injured when, after drinking heavily at a bar in Katonah, New York and taking narcotic painkillers, she tried to cross the Saw Mill River Parkway and was struck by a car.

These accidents both resulted in personal injury lawsuits that have just now been ruled upon by two separate appeals courts. They involve New York’s Dram Shop Act (General Obligations Law Section 11-101) which provides that anyone who has been injured by a visibly intoxicated person has a claim to recover his damages from the one who caused or contributed to the intoxication by unlawfully selling alcohol.

The typical Dram Shop Act lawsuit involves a slobbering drunk driver who crashes into and injures or kills an innocent victim who (or whose estate) then sues not only the drunk driver but also the bar or restaurant whose bartender could see that his customer was drunk (and should have known his customer would later drive and injure an innocent victim).

This woman should not be served any more drinks:

Neither of the two new cases is typical but each is fascinating and breaks new legal ground.

In Oursler v. Brennan the issue was whether a husband’s actions in buying drinks for his wife would preclude him from winning his own Dram Shop Act case against a bowling alley. Christopher and Julie Oursler were at a Halloween party at the bowling alley where they drank for four hours – Chris bought his wife two beers, she and friends bought others and she also had free Jell-O shots. Dressed in a black witch’s costume, Mrs. Oursler got into a fight outside the bar when she left, was arrested, driven home by the cops and left there with her mother. An hour later, still in black, she left her house, alone, and walked along a dark road. That’s when she was struck by a car and after a 911 call to help her she was run over by the responding officer who did not see her.

How could anyone see a person dressed like this, at night, on a dark road?

Oursler’s estate clearly had no claim in this case because one cannot maintain a lawsuit for personal injuries sustained due to one’s own intoxication. The surviving husband, though, had his own, separate claim for spousal loss of support (the same claim children have upon the death of a parent).

The driver moved to dismiss the husband’s claim under the well settled principle that one who is a guilty participant may not recover for his own injuries caused by an intoxicated person.

The appeals court held that merely buying two beers for his wife did not establish a guilty participation defense. The husband’s claim may now proceed to trial.

Inside Information:

• Plaintiff still has the difficult burden of proving that there was a practical connection (we lawyers call it "proximate cause") between the unlawful alcohol sale and death several hours later. As a dissenting judge said, this case involves the intervening actions of three sober individuals who directly altered the course of events beyond any reasonable or practical connection to the unlawful alcohol sale to the decedent.
• Plaintiff will be in the hot seat at trial as the issue of his drinking with his wife will come up again, with full blown testimony from all the witnesses and cross-examination of the husband. A skilled defense lawyer will be permitted to try to convince the jury that the husband participated in getting his wife drunk to such a degree that he should not win money for himself. 

In O’Gara v. Alacci, the issue was whether the driver who struck the drugged and drunk 23 year old plaintiff crossing the highway at night could assert a claim against the bar for contribution to any damages the driver might be liable to pay the plaintiff.

Before wandering onto the highway, Ms. O'Gara took painkillers and drank alcohol. Bad move.

Clearly, plaintiff herself had no claim against the bar for her own injuries; however, in a case of first impression, the appeals court held that the defendant driver could bring in the bar as a so-called third-party defendant and, if found liable, defendant driver could have the bar share in the payment of damages to the plaintiff. The judges stated that their decision promotes an important goal of the Dram Shop Act, namely motivating sellers of alcohol to exercise greater care in their sales.

Inside Information:

• This was a case that plaintiff would have lost at trial. She was in a stupor, at night, crossing a busy highway and didn’t even know how she came to be there. Nonetheless, defendant settled for $7,500 (nuisance value) while the appeal was pending.
• Plaintiff sustained fractures to her tibia, thoracic spine and pelvis as well as massive skin injuries requiring grafts.
• The drinking in this case, as in the Oursler case, took place at a Halloween party.
• The bar had called a cab for the plaintiff but she left on foot before it arrived.

Unfortunately, drunk drivers often collide with innocent victims with resulting deaths and grievous serious injuries. Lawsuits follow, especially when the drunk driver has insufficient liability insurance coverage and the facts show that the Dram Shop Act was violated (i.e., the drunk was served when he was visibly intoxicated). We will continue to follow these cases and report on interesting decisions and verdicts.

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The purpose of punitive damages in personal injury lawsuits is to act as a punishment to the offensive defendant and as a deterrent or warning to others. They  are awarded in addition to the plaintiff's compensatory damages (i.e., pain and suffering, loss of earnings and medical expenses); however, they are only available when a defendant's conduct has a high degree of moral culpability and manifests a conscious or reckless disregard for the rights of others.

Punitive damages are controversial. For example,  Ted Frank at Overlawyered discusses the issues surrounding tax deductions for punitive damage payments here and law school professors Edward Cheng (Brooklyn) and Albert Yoon (Toronto) discuss their unpredictability at TortsProf Blog here.

The most recent appellate court decision in New York to deal with punitive damages is Frankson v. Brown & Williamson Tobacco Corp., a smoker's wrongful death lawsuit, in which the decedent's estate was awarded $20,000,000 in punitive damages. That award was vacated this week and a new trial ordered.

It all began in 1954, when Harry Frankson, then 13 years old, started smoking unfiltered Lucky Strike cigarettes. Within a year, he was up to a pack a day. After 44 years, he died of lung cancer. There was never a question as to what caused his death – cigarette smoking – but when on July 24, 2000 his widow sued the cigarette maker and others, there was a big question as to whether anyone but Harry bore responsibility for his own death.

After a trial in Brooklyn, New York, the jury on December 18, 2003 found that both Harry and the defendants were at fault (50% each) and that his estate was entitled to compensatory damages of $350,000 ($150,000 pre-death pain and suffering, $200,000 widow’s loss of services) before apportionment for comparative fault.

Two weeks later, after a separate hearing, the same jury found defendants liable for punitive damages in the sum of $20,000,000. They based their award on their conclusion that the defendants had wantonly, recklessly, maliciously and fraudulently concealed the health risks of smoking (until 1969 when government warnings became the law).

In a post-trial decision, here, the judge found that the 57 to 1 ratio of punitive damages to compensatory damages was neither sensible nor fair and that $5,000,000 (a 14 to 1 ratio) was far more fitting and fair.

Defendants appealed, arguing that the reduced $5,000,000 punitive damages figure was still unfair, indeed constitutionally impermissible, and that the jury was not properly instructed that it could not award punitive damages to punish the defendants for harm to smokers other than Mr. Frankson. The appellate court, here, rejected the defendants’ arguments and upheld the $5,000,000 punitive damages award.

Then, the United States Supreme Court ruled in 2007 in Phillip Morris USA v. Williams that the 14th Amendment's due process clause forbids a state from using punitive damages to punish a defendant for injury that it inflicts on non-parties. That’s just what the defendants complained of in Frankson – that the trial judge refused their request to instruct the jury that they could not impose punitive damages for injuries to anyone other than the plaintiff Mr. Frankson. Reaction to this decision, though, was mixed, with some who favor curtailing punitive damages wondering whether the high court judges were finding laws in the constitution that simply do not exist (e.g., Point of Law, here).

Plaintiff’s attorney in Frankson v. Brown & Williamson Tobacco Corp. had argued at trial (improperly as the appellate court later ruled) that the jury should send a message not just to the defendants but to corporate America, that the tobacco industry knew it would expose millions of people to carcinogens resulting in lung cancer and death and that the defendants caused not just Mr. Frankson’s death but also the deaths of thousands of others.

So now this case will go back to the trial court for a new hearing on punitive damages. This time the jury will be given proper instructions and specifically told that it may not impose punitive damages for injuries to anyone other than Mr. Frankson.

Inside Information:

• The U.S. Supreme court has addressed the issue of punitive damages several times in recent years, expressing its displeasure with the unpredictability of such awards.
• In another case decided after the Frankson trial, Exxon Shipping Co. v. Baker (2008), the high court reiterated that its declaration in State Farm v. Campbell (2003) that no more than a single-digit ratio of punitive to compensatory damages (i.e., 1 to 1) is constitutional in all but the most exceptional cases. Anything higher than that, the court suggested, would  violate the due process clause which prohibits the imposition of grossly excessive or arbitrary punishments on a civil lawsuit defendant.
• The high court's suggested formula would leave the Frankson estate with only $350,000 in punitive damages to go with the $350,000 of compensatory damages.

We will follow the Frankson case as it reaches trial again and we will follow our nation’s highest court as it revisits the issue of punitive damages and their constitutional limits.

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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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Again and again, people fall onto subway tracks in New York City and get maimed or killed. And often they do so after getting drunk. And just as often they or their estates sue the New York City Transit Authority claiming that the train conductor should have been able to prevent the accident.

We've written about these types of cases before, here and here. And our friend Walter Olson at Overlawyered has been following and discussing these cases with insight, intellect and intrigue, for example, here.

This week, an appeals court ruled on the latest case to come down the pike (er, the tracks) - Bacic v. New York City Transit Authority. On July 9, 2003, Maria Bacic was found dead under a subway car in Queens that had been pulling out of the station on its way to Manhattan. She died from blunt trauma and in the lawsuit that followed her estate claimed the motorman should have seen her attempting to board between two subway cars.

Why would anyone try to jump or climb aboard between subway cars? It's deadly dangerous!

The case went to trial in Queens County in October 2007 and at the close of evidence the judge granted the defendant's motion to have the case dismissed (without presenting it to the jury for deliberations). The problem for the plaintiff was a lack of any eyewitnesses and a totally circumstantial evidence case.

All plaintiff had to go on was an expert engineer's opinion that because one of Ms. Bacic's shoes was found on the subway platform the train's conductor should have seen the decedent, or at least her shoe that was later found on the platform. But, there was evidence that Ms. Bacic:

• had consumed 10-13 drinks before being dropped off at the subway station
• had a blood alcohol level of .21 (above .20 is considered gross intoxication) and
  
• was so drunk she was just shy of the coma level

How many drinks are too many?

In affirming the trial judge's dismissal of the Bacic case, the appeals court emphasized that the expert's testimony was "entirely speculative" and "did not constitute proof from which negligence could reasonably be inferred."

The judges completely rejected the plaintiff's argument that that the key issue was only whether the jury should have been permitted to determine whether the subway conductor had negligently failed to observe plaintiff or her slipper before signaling the motorman to proceed.

In addition to the entirely speculative nature of plaintiff's argument (it was based on plaintiff's expert's analysis of what he thought had happened), there remains the utter stupidity of trying to board a subway train between cars while nearly comatose from drinking alcohol! 

This case will cause many to consider anew the issue of whether there should be a "loser pays" system in the United States. That's one of the measures urged by the so-called tort reformers who contend that there are too many frivolous lawsuits and that they are a huge burden, especially for small businesses forced to pay lawyers fees win or lose.

In Britain, France, Germany and Canada there are "loser pays" rules that require the losing party in a lawsuit, whether plaintiff or defendant, to pay the winner's reasonable attorney's fees.

The loser pays rule has been studied by Marie Gryphon of The Manhattan Institute. She and others argue that the loser pays system would benefit all because it would:

• reduce litigation costs
• better compensate prevailing litigants and
• better align tort law with its goal of deterring socially harmful conduct

Some states have considered its implementation (e.g., Georgia and Minnesota). Without doubt, though, most lawyers representing plaintiffs in tort suits will oppose any loser pay rules (Boston's Robert Feinberg and Atlanta's Ken Shigley have already weighed in as staunch opponents).

Whether one agrees or not that the loser pays rule would be beneficial to all, it is surely worth discussing and will be discussed and considered more and more as litigation costs continue to spiral upwards. The public clamor in favor of loser pays may swell such that some form of it may become the law soon.

As new measures are introduced and the loser pays issue moves more to the forefront, we will revisit this topic.

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Burn injuries are without doubt among the most painful injuries a person can experience. They come from a wide variety of accidents such as fires in the home or a car, electrical shocks on the job and even operating room lights during surgery. Recent court decisions in New York have upheld verdicts for pain and suffering damages in burn injury cases from $300,000 to $3,600,000.

In Hawthorne v. Vehicle Asset Universal Trust (Index # 16721/04; Supreme Court, Queens County; 12/11/08), a 40 year old construction worker, James Stanton, was literally burned alive in his car when he could not escape after a motor vehicle accident.

He sustained deep burns of his entire body and endured 10 minutes of conscious pain and suffering before death. A Queens County jury awarded Mr. Stanton's estate $10,000,000 for his pain and suffering but the trial judge found that the jury had been over-emotional and rendered an excessive award. The judge ordered a reduction to $2,500,000.

In another recent big damage burn injury case, a Columbia County jury awarded a 24 year old electrician $3,600,000 for his pain and suffering ($300,000 past, $3,000,000 future). Jordan Neissel was attempting to repair a college's circuit breaker when he was shocked and severely burned. Although only about 7% of his external skin was damaged, the jury's award was upheld in full by the appeals court in Neissel v. Rensselear Polytechnic Institute. The appeals court took into account the fact that plaintiff sustained significant and permanent muscle and nerve loss, lacks feeling in his arms and suffers from post-traumatic stress including flashbacks, nightmares, social isolation and panic attacks.

Two less gruesome recent cases show that even without massive injuries, burn cases result in significant pain and suffering verdicts that will be upheld by the courts.

In Paruolo v. Yormak, a 50 year old school guidance counselor suffered from elbow pain that was ultimately diagnosed as a chondral injury requiring surgery to remove loose bone fragments. During the surgery, an operating room light was negligently maintained and caused third degree burns on Mr. Paruolo's elbow and arm. He didn't even know he had burn injuries until there days after surgery when his bandages were removed and there was visible blistering. He had infections, underwent six days of hospitalization to administer antibiotics and he needed a debridement and skin graft from his thigh.

Mr. Paruolo sued and liability was conceded but the amount of damages could not be agreed upon and trial ensued in Westchester County. The jury returned a verdict of $300,000 for pain and suffering ($275,000 past, $25,000 future). Plaintiff appealed claiming the future damages award was too low and the appeals court agreed finding that the future pain and suffering sum should be increased to $150,000 with the result that the final award was $425,000 ($275,000 past, $150,000 future).

The court was moved by the facts that plaintiff had two permanent and embarrassing scars on his elbow and thigh, the scars could not be exposed to sunlight and posed a heightened risk of skin cancer, he had to wear long sleeve shirts in warm weather and would suffer from all of these for 25 years.

Burns are classified according to degrees:

In Stefanescu v. City of New York, a 30 year old transit authority track worker was working in the subway when contact with a metal plate energized the third rail and caused a flash fire. Mr. Stefanescu was set on fire and suffered second degree burns to his entire face. While he claimed residual symptoms such as tightness, heightened sensitivity to temperature and sunlight and post-traumatic stress, plaintiff required minimal hospitalization, standard care and no skin grafts or surgery. At the time of trial, his scars were no longer visible. The Kings County jury awarded plaintiff $750,000 ($650,000 past, $100,000 future) for his pain and suffering but the trial judge reduced the verdict to $200,00 ($150,000 past, $50,000 future).

The appeals court finally set the verdict at $300,000 ($250,000 past, $50,000 future) finding that $250,000 for Mr. Stefanescu's past pain and suffering was reasonable because of the great deal of pain  he suffered in the four year period from the accident to the trial. As to future damages, though, the court found $50,000 reasonable in view of plaintiff's minor treatment and lack of residual damages or permanent injury.

Pain and suffering verdicts in burn injury cases are evaluated buy the appellate courts in most respects similar to the way they evaluate damages in other pain and suffering scenarios - what's reasonable depends on the severity of the injury, the type and length of treatment (especially surgery), the activities the plaintiff can no longer do or can do only with limitations or pain and the expected period of future pain and suffering (when permanent, the period is the number of years plaintiff is expected to live).

In burn cases, there are several unique additional factors that the courts (and juries) consider:

• post-traumatic stress - with credible psychological testimony and a gruesome mechanism of injury (e.g., fire causing facial burns)
• scars - burns leave some of the ugliest permanent scars and when in the face they can be shocking
• skin graft procedures - which can be excruciatingly painful and leave scars on other parts of the body

Here's what the skin graft procedure looks like:

As the cases demonstrate, verdicts for pain and suffering damages in burn injury cases vary widely, just as the types of burn injuries vary (i.e., based on the degree - 1st, 2nd or 3rd, based on the number of skin grafts required and whether there is permanent scarring). We will continue to report on burn injury cases as they come to trial and are ruled on by juries and judges.

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A Westchester County jury recently returned a verdict of $5,000,000 in favor of the estate of a woman who died because of medical malpractice. It will not stand up on appeal.

In Schaffer v. Stony Lodge Hospital (Supreme Court, Westchester County; Index # 4155/99; 11/6/08), a 68 year old woman with long standing depression went to a small psychiatric  hospital (Stony Lodge) for a change of her anti-depressant medication. While there, she suffered a seizure and so was transferred to a community hospital (Phelps Memorial Hospital). There,  she had another seizure, a heart attack and then became comatose and never regained consciousness. She died 4 1/2 years later.

Liability for the medical malpractice in failing to timely treat the hyponatremia was clear enough so Phelps Hospital and one of its doctors settled early on for $1,750,000. The main doctor who committed the malpractice, though, Narain Batheja, refused to settle and the case came to trial and the jury found that  Mrs. Schaffer's suffering, albeit while comatose, had a value of $5,000,000.

No doubt this case will be appealed and there are several issues:

• Was there enough evidence that Mrs. Schaffer actually experienced conscious pain and suffering while comatose? Plaintiff points to statements from family members and nurses that Mrs. Schaffer followed her caregivers with her eyes and cried at times. The defense will no doubt point out that there was no medical examination pre-death as to level of consciousness.
• The other issue that will be heavily contested on appeal is the reasonableness of $5,000,000 as pain and suffering damages for 4 1/2 years while comatose

Here are some cases that indicate that the $5,000,000 may not withstand an appeal:

• Jump v. Facelle (Appellate Division, 2nd Dept.; 2002) - In this case the court held that $1,300,000 was reasonable for eight months of pre-death pain and suffering, including persistent abdominal infection, several surgeries, and a permanent colostomy and bed sore.
• Ramos v. Shah (Appellate Division, 2nd Dept.; 2002) - The court ruled that $900,000 pre-death pain and suffering was too high and that $450,000 was proper and reasonable in a case in which a decedent died due to medical malpractice resulting in a cardiac arrest and his lapse into a coma for several days before death. There was some testimony that the decedent had some level of consciousness for several days.
• Weldon v. Beal (Appellate Division, 2nd Dept.; 2000) - In this medical malpractice case, the Kings county jury awarded a brain damaged plaintiff $13,500,000 for pain and suffering ($3,000,000 past; $10,500,000 future) despite the fact that she was in a vegetative state. There was evidence that she had some level of awareness (and that she'd need almost $2,000,000 of medical expenses for the rest of her life). The appellate court held that the pain and suffering verdict was too high and reduced it to $5,000,000 ($2,000,000 past; $3,000,000 future).

Insider Information:

• Plaintiff's attorney in Schaffer v. Stony Lodge Hospital would have accepted a total of $3,000,000 to settle all claims - meaning that defendant Batheja could have settled for $1,250,000 (and I hear that plaintiff's counsel at trial would have reduced that figure to $750,000).
• In this case, the non-settling doctor's insurance carrier, Frontier Insurance Company, was stubborn and would not concede liability in a case in which those involved on all sides now tell me was indefensible.
• The plaintiff's husband was also awarded $3,000,000 in addition for loss of consortium. That's the claim of the non-injured spouse for loss of services and it usually involves the disruption to the marriage, the many hours spent caring for the injured person, the lack of intimacy and the like. It's usually around 10% of the injured spouse's pain and suffering verdict and the appellate courts can and will determine that loss of services verdicts should be reduced in appropriate cases. This will be one of those cases if not settled before an appeal is concluded. In my experience, this loss of services claim will end up nowhere near $3,000,000.

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A six year old California boy died during a family trip when the rear tire on the rental car his father was driving blew out and the car rolled over.

  According to the family attorney, William Berman of San Diego, after years in court, forensic experts and deposition testimony revealed that the rental car firm allowed the failed tire to run for a prolonged time in a severely under-inflated state. The defendant finally admitted liability and a $2,450,000 wrongful death settlement was reached.

Had this case been brought in New York or governed by New York's wrongful death laws, the result would have been drastically different.

Under New York's wrongful death statute - EPTL Section 5-4.3 - there are two categories of damages in death cases:

1. special damages - such as funeral, medical and nursing expenses
2. general damages - the pecuniary (i.e., monetary) loss to the decedent's survivors

There are no damages allowed in New York wrongful death cases for the parents' grief or emotional loss (unless the parents were at the scene and either physically injured in the same accident or within the zone of danger).

Here is what the judges read to the juries, right from New York's Pattern Jury Instructions, before submitting these types of claims for their consideration:

• You may not consider or make any award for sorrow, mental anguish, injury to feelings or loss of companionship.
• You must determine the economic value of the decedent to his distributees (his heirs)

This is in distinction to most other states, such as California, and something the plaintiff's bar in New York has for many years, unsuccessfully, tried to have changed legislatively.

The only other significant category of recovery in wrongful death cases involving minors in New York is pre-death conscious pain and suffering. That's often not relevant (e.g., instant death from an accident, death from medical malpractice while under anesthesia). We've discussed in a recent post important  cases dealing with the pre-death pain and suffering aspect in wrongful death cases.

So the main claim the families of minors in New York are often left with is that the decedent would have contributed his or her net income to, or otherwise would have financially helped, the survivors.

How do you prove that a two year old would have become a significant income earner and would have given over to his parents significant amounts during their lifetime? Plaintiffs' attorneys are relegated to issues such as the infant's intelligence, likely education, statements that were made regarding future support, the parents' own economic situation, how much the kid helped around the house and the like. Very difficult and sometimes impossible to prove.

Here are some cases in which there were verdicts awarding damages for the loss of an infant's future financial support:

• Cepeda v. New York City Health and Hospitals Corp - $83,000 jury award for future pecuniary loss for the death of a 12 day old infant went unchallenged on appeal
• Kruger v. Wilde - $100,000 for pecuniary loss for the death of a 14 year old girl who was a good student and worked part-time
• Alcalay v. Town of North Hempstead [unreported case] - $200,000 for pecuniary loss for death of 12 year old

Insider's tip: Even in the absence of any verifiable proof, attorneys in New York representing the heirs of a deceased infant will usually make a wrongful death claim. At a minimum, they have the parents testify as to the help they expected the deceased infant to contribute to the family (i.e., household chores) and, if there was a part-time job or any scintilla of evidence (school report cards, the child's stated aspirations), then proof is adduced as to career goals too. If the jury has any basis at all to award pecuniary damages then its award may stand or at worst be reduced somewhat on appeal.

To end on a positive note of sorts, I leave you with references to some recent lawsuit victories in wrongful death cases of minors brought in states other than New York:

• Chicago Injury Attorney Blog reports on a $9,000,000 appellate court win in a medical malpractice a case involving the death of a 12 year old boy
• Alabama Personal Injury Blog reports on a $3,000,000 settlement for the wrongful death of a 12 year old boy in an ATV accident
• Chicago Accident Lawyer Blog reports on a $10,000,000 trial judge decision for the wrongful death of a 15 year old boy in a car accident

We will follow the cases and trends in this emerging area of wrongful death litigation and encourage readers from all areas to report new developments as they break.

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A 27 year old man, Starsky Garcia, was shot to death in the parking lot of a North Miami Beach parking lot two years ago. The Miami Herald reports that the shooter has never been found but the family hired The Haggard Law Firm in Coral Gables who sued the apartment owners for their negligence.

Now, a Florida jury verdict has held the apartment complex managers and owners were liable for inadequate security and awarded  the decedent's family $8,000,000 in wrongful death damages -

even though the shooter was never caught like the perp was in the photo here!

Florida personal injury attorneys Paige Tropp & Ameen note that the defendants should have implemented proper safety measures to prevent this crime, especially in view of many other recent crimes at Florida apartment complexes.

Unlike in New York, Florida law permits a jury to award survivors loss of companionship damages.  About 30 states allow damages for loss of consortium or loss of companionship in their wrongful death laws. In New York, though, this element of damages is forbidden and juries here are not permitted to award damages suffered by the survivors for their emotional loss. Every year since 1995, there have been failed legislative efforts in New York to get the law changed.

So how come there are still many large wrongful death verdicts and settlements in New York? That's because the permitted damages here include loss of earnings (imagine the tragic death of a young person earning six figures and multiply that out for his expected work life years and the verdict can get into the millions very quickly).

And then there's pre-death pain and suffering. This too can be a huge number but the claim is rife with difficulties for the heirs. First, there's the requirement that the decedent was conscious and actually suffered before he died. Second, there's the difficulty of evaluating the proper amount for this claim.

In Glaser v. County of Orange, the estate of a 50 year old man was awarded $350,000 for pain and suffering after a car accident that resulted in his death at the scene. The jury returned a verdict in the sum of $1,000,000 an amount the appellate court found was too high because the plaintiff's medical expert testified that the decedent was conscious for no more than two to three minutes after his windshield was struck by a rear axle that came loose from the defendant's dump truck and struck the decedent's windshield and he was pronounced dead 15 minutes after the crash.

The Glaser family was faced with long-standing law in New York that to recover for pre-death pain and suffering the estate bears the burden of proving that a decedent suffered conscious pain and suffering - some level of awareness -  following the accident. In the Glaser case, the appellate court was clearly swayed by testimony of witnesses on the scene that the decedent was not moving and exhibited no outward signs of pain.

The court was also influenced by its own 2007 decision in Bennett v. Henry in which it determined that it would not disturb a jury award of $400,000 for pre-death pain and suffering of a 74 year old woman killed in a car accident. There, witnesses testified that they observed the decedent to be breathing at the scene, in pain and making sounds. She was not pronounced dead until 10 hours later at the hospital.

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