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New York Injury Cases Blog

News & Updates on Pain & Suffering Verdicts & Settlements

Appellate Court Orders Significant Reduction of Pain and Suffering Verdict for Newborn who Sustained Loss of Fingers in Medical Malpractice Case

Posted in Amputation Injuries, Medical Malpractice

After only 23 1/2 weeks gestation, Zalaya Tart was born prematurely at St. Barnabas Hospital in the Bronx on April 29, 2005. She weighed only 542 grams (1.1 pounds) and was just on the edge of being able to survive.

Zalaya had a host of life-threatening medical problems associated with her extreme prematurity and low birth weight so an arterial line was placed in her right arm to continually monitor her blood pressure and get samples of her blood whenever needed.

An arterial line (not a newborn)

At 3 p.m. the next day, a nurse noted that several fingernails on on Zalaya’s right hand were turning blue, demonstrating cyanosis (a sign of decreased oxygen in the bloodstream).

That evening, doctors removed the arterial line from Zalaya’s right arm and placed it in her left arm. Tragically, though, circulation in the right fingers could not be reestablished and several days later, parts of four fingers on Zalaya’s right hand became gangrenous and fell off.

Zalaya’s right hand was left grossly disfigured with four fingers auto-amputated approximately at the level of the proximal inter-phalangeal joints looking similar to the middle diagram in column A below (a grainy photograph of the exhibit that is part of the trial record in the ensuing lawsuit can be seen, here):

Kia Bynoe, Zalaya’s mother, brought a lawsuit claiming that the care her daughter received at the hospital was negligent and caused the loss of her fingers. On March 19, 2012, the Bronx County jury found that there had indeed been malpractice and the jury awarded pain and suffering damages in the sum of $4,500,000 ($300,000 past – seven years, $4,200,000 future – 68 years).

Now, in Tart v. New York Bronx Pediatric Medicine, P.C. (1st Dept. 2014), the liability finding has been affirmed; however, the appeals court agreed with the defense that the damages award was excessive and it ordered a reduction to $1,200,000 ($200,000 past, $1,000,000 future).

Plaintiff’s counsel argued that the award was reasonable emphasizing the fact that Zalaya’s right hand was terribly deformed, she cannot use her right hand at all and that two hands are needed  to perform many of life’s activities that are taken for granted which Zalaya could not do, such as buttoning a shirt, tying a shoelace, putting on a belt, fastening a bra and brushing hair.

The defense argued that the pain and suffering award was excessive because “absent from plaintiffs’ proof was any evidence that [Zalaya] suffers any significant disability and/or pain and suffering from the loss of parts of four fingers of her right hand.” Further, the defense noted, Zalaya suffered from cerebral palsy, brain damage, hemiparetic gait and other neurological dysfunctions, none of which were attributable to or caused by the failure to remove the arterial line in time but were instead simply the result of Zalaya’s extreme prematurity and concomitant neurological complications and developmental delays.

Inside Information:

  • Ms. Bynoe had been carrying twins. Zalaya’s twin brother died following a pulmonary hemorrhage less than a day after he was born.
  • During deliberations, a juror reported to the trial judge that she was being coerced by other jurors who had already made up their minds and that some jurors had texted messages to outsiders. After the judge spoke with the concerned juror, he told her to return to the jury room and shortly thereafter the jurors reached a verdict. After the trial, the juror thanked the judge and stated: “When I went back, there was a big change among us and we were able to work it out.”
  • The jury rejected plaintiff’s claim that the hospital and its physicians were negligent in failing to administer magnesium sulfate so as to (a) delay labor and (b) prevent pre-term labor and Zalaya’s neurological injuries and related disabilities.
  • While the jury was deliberating, the trial judge had his court officers remove one of the defense lawyers from the courtroom for several minutes. The judge said the lawyer had purposely violated his directive regarding a jury read-back and he was upset with the lawyer’s demeanor in other regards. The judge said: “You have been a problem since day one.” After he was escorted out, the judge said: “Next time I put him in cuffs. Total disservice.”

Judgment Affirmed for Woman who Reinjured Knee in Trip and Fall Accident

Posted in Knee Injuries

Berthenia Singleton was 72 years old on November 4, 2003 when, as usual, at about 7:30 a.m., she escorted her eight year old granddaughter to the school bus stop outside their apartment building in Co-Op City at 2440 Hunter Avenue in the Bronx.

As they approached the bus, Ms. Singleton fell when her foot got caught in a defect in the courtyard sidewalk in front of the building. She fell to the ground, injuring her left knee.

Co-Op City

In her ensuing lawsuit against the property manager, Ms. Singleton claimed that the sidewalk was a tripping hazard that should have been remedied before her accident.

The jury agreed and found the defendant fully at fault. Plaintiff was awarded $300,000 for pain and suffering damages ($150,000 past – 7 1/2 years, $150,000 future – 10 years).

In Togut v. Riverbay Corp. (1st Dept. 2014), the judgment has been affirmed.

Here are the injury details:

  • Two days at home with swollen, tender and painful left knee
  • First medical treatment two days after the accident – at local hospital where she was treated for knee pain and released with a brace and cane
  • Referred by primary care doctor to orthopedic surgeon Sanjiv Bansal, M.D., who diagnosed her with a meniscal tear in her knee and patellofemoral chondromalacia
  • Treatment with Dr. Bansal and physical therapy for eight months
  • Surgery on 6/15/04: patellofemoral chondroplasty, partial medial meniscectomy and chondroplasty of the lateral femoral condyle and synovectomy
  • Surgery on 11/15/05: left partial medial meniscectomy, chondroplasty of the patella, medial femoral condyle, and synovectomy and chondroplasty of the lateral femoral condyle
  • Impaired activities: unable to walk long distances, needs assistance with grocery shopping and laundry, unable to get into car without having leg lifted, continuing pain and need for over the counter medication
  • Need for future total knee replacement surgery

About 10 years earlier, Ms. Singleton injured her left knee in an accident and underwent meniscal repair surgery. The defense claimed that she failed to prove her injury was not from the prior accident. Plaintiff, however, argued that she had completely recovered from the 10 year old accident, had returned to work and had no problems with her left knee within the year leading up to this accident. Furthermore, Dr. Bansal testified that despite the prior surgery she had a substantial amount of her meniscus remaining. The defendant’s expert orthopedic surgeon, Maurice Carter, M.D., testified that plaintiff’s current accident did not result in a traumatic tear to her meniscus or chondromalacia and he opined that her condition was “clearly a degenerative tear, wear and tear.”

Inside Information:

  • In closing arguments, plaintiff’s counsel asked the jury to award pain and suffering damages in the sum of $750,000 whereas defense counsel argued plaintiff was not believable and was entitled to nothing at all.
  • After a two and one-half week trial, the jury was sent out to deliberate at 4:30 p.m. and at 5:05 p.m. they advised the judge that they had reached a verdict. Defense counsel argued on appeal, unsuccessfully, that a new trial should have been ordered because the jury rushed to judgment.
  • In 2005, Ms. Singleton filed a Chapter 7 Bankruptcy petition but failed to list her then pending personal injury lawsuit in the schedule of her assets. Therefore, her lawsuit was dismissed in 2007; however, the bankruptcy trustee, Albert Togut, thereafter commenced a new lawsuit and that’s the one that went to trial.

 

Shoulder Injuries from Slip and Fall Accident Result in Significant Pain and Suffering Award

Posted in Shoulder Injuries

Luis Molina was on his way to work the night shift as a building engineer at The Yale Club in Manhattan on November 16, 2008.  At about 11:30 p.m., Mr. Molina slipped on a plastic bag while descending the stairs leading to the Hunts Point subway station in the Bronx. His feet slid out from under him and he landed on his back.

Stairway Entrance to Hunts Point Subway Station

The stairway was open to the street and Molina contended that trash often blew on the stairway, at least in part because of windy conditions and the open design of the stairway.

In the ensuing lawsuit, a Bronx County jury determined that the transit authority negligent was negligent after hearing evidence that the authority’s employees knew there was debris on the stairs regularly and took no additional measures to clean the area.

Molina, 47 years old at the time of the accident, was awarded pain and suffering damages at trial in the sum of $1,900,000 ($600,000 past – 3 years, $1,300,000 future – 27 years).

Defendant appealed arguing (a) unsuccessfully, that there was no basis for the imposition of any liability against it and (b) successfully, that the pain and suffering award was excessive.

In Molina v. New York City Transit Authority (1st Dept. 2014), the appellate court affirmed the jury’s liability finding  but reduced the award for future pain and suffering damages by $500,000 (from $1,300,000 to $800,000).

After the reduction, the total pain and suffering award now stands at $1,400,000.

The appellate court also affirmed the jury’s other awards in the sums of $650,000 for lost earnings and $60,000 for medical expenses. The decision, therefore, results in a total award, before interest, in the sum of $2,110,000 ($1,400,000 for pain and suffering, $650,000 for earnings and $60,000 for medical expenses).

Unfortunately, the appellate court decision states nothing at all as to the nature of the injuries sustained by plaintiff. According to court documents, Mr. Molina sustained tears of the rotator cuff and labrum in his right shoulder and, because of overuse, a rotator cuff tear of the supraspinatus tendon in his left shoulder. He also claimed that the accident trauma caused herniated discs in his back.

Here are the injury details:

  • Hospital emergency room the day after the accident – pain medication and sling for arm
  • Physical therapy starting two weeks later three times a week for eight weeks
  • Right shoulder arthroscopic surgery in May 2009 to repair full thickness  rotator cuff tear of the supraspinatus tendon
  • Right shoulder immobilized in a sling for four months after surgery
  • Left shoulder partially torn rotator cuff and labral tear due to overuse requiring arthroscopic surgery in October 2010 to debride the tissue
  • Significant and permanent range of motion loss in both shoulders
  • Unable to return to work since February 2009
  • Unable to return to recreational sports, especially handball, a lifelong passion since plaintiff had been a champion in high school
  • Herniated disc at L5-S1 requiring two epidural steroid injections and resulting in a recommendation for future surgery

The defense contended that (a)  plaintiff’s injuries were not nearly as severe as claimed, (b) he had preexisting arthritis and impingement of his right shoulder, (c) the claim related to his left shoulder was simply “proof of how to try to build the case,” and (d) he had preexisting significant degenerative changes in his lower back. In his summation, defense counsel argued that plaintiff was an overweight, overworked man who was orchestrating matters so that he would have “a way to get somebody to pay him for not working for the rest of his life.”

Plaintiff’s counsel, Andrea V. Borden, conceded that her client had some “preexisting stuff” but noted that there was no evidence Mr. Molina had ever treated for shoulder or back pain before the accident. She relied upon the testimony of plaintiff’s expert orthopedic surgeon, Gabriel Dassa, M.D.,  who explained to the jury all of plaintiff’s injuries and their consequences. In her closing argument, Ms. Borden suggested to the jurors that they award plaintiff $600,000 for his past pain and suffering plus $1,300,000 for the future and those are the exact numbers they awarded.

Inside Information:

  • Plaintiff’s pre-trial settlement demand was $800,000 against which there was no offer.
  • The accident was unwitnessed and unreported at the time. Plaintiff testified that he was embarrassed and “jumped on [his] feet … continued walking down the steps and continued to work.” He also reported to work the next day but was in pain, unable to continue and sent home by his boss. It was then that he sought medical treatment for the first time.

Pain and Suffering Verdict Reduced in “Mild” Erb’s Palsy Case

Posted in Medical Malpractice

Joshua Delgado was born on November 27, 2006 at St. Barnabas Hospital in the Bronx. He was delivered by Gloria Murray, a certified nurse midwife. Unfortunately, Joshua suffered a brachial plexus injury at birth and was later diagnosed with Erb’s palsy.

His parents sued claiming that Murray was negligent and caused Erb’s by using excessive lateral traction on Joshua’s head during the birthing process at a time when it was likely shoulder dystocia was present. After a two week trial, the jury agreed and on October 14, 2011 returned a verdict of malpractice and awarded pain and suffering damages in the sum of $620,000 ($20,000 past – 5 years, $600,000 future – 20 years).

The defendant appealed, successfully arguing that the amount of damages was excessive. In Delgado v. Murray (1st Dept. 2014), the appellate court ordered a reduction of the future damages award from $600,000 to $300,000.

Plaintiff contended that Joshua sustained permanent nerve damage to the nerves in the brachial plexus area innervating the left arm, wrist and hand causing the following injuries and deficits:

  • impairment of shoulder rotation
  • scapular winging
  • impairment of ability to have the left hand reach the back of the head
  • impaired ability to rotate the left hand
  • decreased length of the left arm which will eventually result in a 10% difference in arm lengths
  • likely development of contractures in the future which “may require surgical correction”

The defense countered, successfully arguing that this was a “mild” Erb’s palsy case, a term the appellate court adopted in its decision and that:

  • physical therapy (discontinued by June 2009) gave Joshua positive improvement from his limitations
  • function from C-5 was restored and from C-6 was improving
  • Joshua has not undergone any surgery for his injury and future surgery would yield no benefit since, as one of his treating doctors noted, by the age of 11 months Joshua seemed to be “correcting quite nicely on his own”

The jury also awarded and the appellate court affirmed $380,000 for future loss of earnings. This was based upon a report by Richard Schuster, Ph.D., a vocational rehabilitation expert who testified for plaintiff. He opined that Joshua’s future earnings capacity was reduced, due to his injury, by $10,000 per year over an expected work life period of 38 years.  The defense did not offer any testimony to rebut Dr. Schuster’s opinions and this aspect of the award was affirmed on appeal.

Inside Information:

  • The defense sought, unsuccessfully, to question one of plaintiff’s experts, Barry Schifrin, M.D. regarding  his censure by ACOG – the American College of Obstetricians and Gynecologists. The censure related to testimony in another case that ACOG concluded was untruthful. The appellate court agreed that the censure – for conduct which Dr. Schifrin denied took place – had insufficient evidentiary value.
  • Ms. Murray testified that she had performed 7,000 deliveries and had never diagnosed a single case of shoulder dystocia. According to her own obstetrical expert, shoulder dystocia occurs in about 1-6% of all vaginal deliveries and plaintiff suggested that Murray should have encountered between 70 and 420 episodes of shoulder dystocia.
  • We reported on another Erb’s case recently, here, in which a different appellate court affirmed a $2,000,000 pain and suffering verdict. The facts in that case – Skelly-Hand v. Lizardi (3d Dept. 2013) – were quite different and the expected period of pain and suffering much longer.

 

 

 

Shoulder Injury Pain and Suffering Verdict Modified Downward by Trial Judge, Upward by Appeals Court Judges

Posted in Shoulder Injuries

On October 22, 2003, Denise Morales slipped and fell on wet steps while exiting the rear door of a city bus at 167th Street and Ogden Avenue in the Bronx. She was taken to the local hospital by ambulance complaining of pain in her right shoulder and  back.

Ms. Morales fell when exiting the bus, unlike the man in this photo.

An ensuing lawsuit resulted in a verdict finding the city’s transit authority fully at fault and awarding Ms. Morales pain and suffering damages in the sum of $700,000  ($400,000 past – 8 years, $300,000 future – 49 years).

Defendants argued, successfully, that the amount was excessive and the trial judge ordered a reduction to $210,000 ($175,000 past, $35,000 future).

Plaintiff appealed arguing that the trial judge’s reduction was improper and the $700,000 jury verdict should be reinstated. In Morales v. Manhattan and Bronx Surface Tr. Operating Auth. (1st Dept. 2013), the appellate judges ordered an increase to $550,000 ($300,000 past, $250,000 future)

The appellate court decision discloses that Ms. Morales was 24 years old at the time of the accident and sustained a partial thickness rotator cuff tear requiring surgery as well as an injury to her lower back.

Here are further injury details:

  • taken by ambulance from the scene to Bronx Lebanon Hospital complaining of shoulder and back pain; radiological studies were negative; treated in the ER and released with a cervical collar, a cane and pain medication
  • physical therapy at Bronx Medical Health Center starting about two weeks after the accident for a period of nine months
  • arthroscopic surgery on right shoulder August 3, 2004 revealing severe impingement, partial thickness supraspinatus tear, bursitis and synovitis requiring removal of thickness in the acromion and resection of the bursa
  • new, two month course of physical therapy post-surgery
  • permanent decreased range of motion and pain in shoulder and back
  • unable (a) without assistance to cook or clean house; (b) to carry as much as a gallon of milk; (c) to pick up kids (ages 11 and 14 years at trial) from school
  • requires continued narcotic pain medication
  • may need surgery to resect distal clavicle

The defense called only one medical witness to testify at trial – radiologist Sheldon Feit, M.D. He reviewed a pre-surgery MRI of plaintiff’s shoulder and concluded that it did not show evidence of a rotator cuff tear but that it did show a bony spur or osteophyte that he concluded was “a sign of degeneration at that joint.” Plaintiff’s expert orthopedic surgeon, Randall Ehrlich, M.D., testified to the contrary, stating: “I have never seen someone that young, in her 20′s, with a degenerative rotator cuff condition who is not a high level pitcher.”

Inside Information:

  • Ms. Morales was diagnosed with Crohn’s disease (a type of inflammatory bowel disease for which there is not yet a cure) at the age of 14 and suffered from it since then and up to the date of trial. It primarily causes abdominal pain. Defense counsel argued that plaintiff failed to present any evidence of the differentiation between her symptoms for Crohn’s as opposed to her injuries claimed in the accident.
  • Plaintiff’s treating orthopedic surgeon, Jeffrey Cohen, M.D., testified that he was never paid for the surgery but hoped to be paid after the trial as he had a lien on plaintiff’s recovery.
  • Prior to trial, plaintiff never had a recommended MRI to better diagnose her back injury because she had no insurance or money to pay for it.

Appellate Courts Affirm Damages Awards in Two Ankle Injury Cases but Require New Trials on Issues of Liability

Posted in Ankle Injuries

Antoinette Harrison, a 22 year old recent immigrant from Liberia, Africa, was on her way to the first day of classes at a nursing school in Brooklyn on January 18, 2005 when she slipped and fell on ice on the platform of an elevated subway station in the Bronx.

She never made it to class that day. She ended up in the hospital due to the ankle injury she sustained from the fall – a spiral comminuted bimalleolar fracture.

In her ensuing lawsuit, Ms. Harrison claimed that the transit authority was negligent because its employees knew about the ice, but failed to clear it away before she fell. A Bronx County jury agreed and rendered a verdict on June 28, 2011 awarding plaintiff pain and suffering damages in the sum of $500,000 ($200,000 past -  6 1/2 years, $300,000 future – 25 years).

On appeal in Harrison v. New York City Transit Authority (1st Dept. 2014), the damages award was affirmed but the liability finding was vacated because the trial judge’s instruction to the jury on the issue of constructive notice was in error.

Here is PJI 2:91, the language that New York trial judges use in fashioning their instructions to juries in slip and fall cases. In this case, the judge had not made it clear that plaintiff had to prove not only the existence of the icy condition but also “that it existed for a sufficient length of time for defendant to have discovered it and taken curative action.”

As set forth in the appellate court decision, despite the reversal on liability grounds, there is no need for a retrial on the issue of damages and, if the new jury finds liability, then the $500,000 award of damages should stand.

Here are some of the injury details in the Harrison case:

  • immediate ambulance transport to the local hospital where x-rays disclosed ankle fractures and torn ligaments
  • delayed surgery until a week later due to swelling
  • ORIF (open reduction internal fixation) surgery with plates and screws implanted
  • three days hospitalization
  • three months of physical therapy
  • pain from the protrusion of one of the implanted screws, resulting in second surgery three years later in which all screws and the plate were removed
  • permanent pain and numbness with loss of range of motion, weakness and swelling
  • unable to exercise or run, unable to wear high heels

Lucy Gonzalez, a 46 year old social worker for the New York City Health and Hospitals Corporation, slipped and injured her ankle entering P.S. 132, a City of New York owned school in Brooklyn, on the blistery cold, snowy and sleeting morning of February 14, 2007.

Ms. Gonzalez had gone to the school to assist a young woman enroll her daughter there. Ms. Gonzalez fell after climbing the steps to the school’s entrance, opening the door and stepping across the threshold. There was no floor mat placed behind the door and she fell because the floor was slippery and wet.

P.S. 132

Like Ms. Harrison in the case discussed above, Gonzalez sustained a bimalleolar ankle fracture. She also sustained a dislocated ankle (subluxation of her talus).

Gonzalez sued the city, the board of education and the school claiming their negligence caused her injuries. On April 14, 2011, a Kings County jury (a) found that the defendants were negligent in failing to keep the vestibule in a reasonably safe condition and (b) awarded plaintiff pain and suffering damages in the sum of $950,000 ($500,000 past – 4 years, $450,000 future – 32  years).

On appeal in Gonzalez v. City of New York (2d Dept. 2013), the damages award was affirmed but the liability finding was vacated because improper testimony had been admitted that was prejudicial to the defense:

  1. a hearsay statement from a security guard to the effect that someone else had fallen in the past and
  2. expert testimony regarding inapplicable national safety standards that plaintiff claimed applied to her case

As set forth in the appellate court decision, the reversal was on liability grounds only – the case was sent back “for a new trial on the issue of liability only.” In effect, the appellate court affirmed the propriety of the damages awards (which were not the subject of an appeal by either side) and, if the new jury finds liability, then the $950,000 award for pain and suffering damages (plus $50,000 for future medical expenses) will stand.

Here are some of the injury details in the Gonzalez case:

  • after transport by ambulance from the scene to the hospital, manual reduction of the fracture that was “exquisitely painful” according to expert testimony, then discharged to home for a week or so of elevation of the leg to reduce swelling
  • open reduction internal fixation surgery on February 23, 2007 (nine days after the accident) with the insertion of a lag plate and seven screws to secure it
  • five months out of work, returning on limited duty using  a cane and confined to desk duty for almost a year
  • second surgery on October 24, 2008 (about 19 months after the fall) to remove the plate and screws because of swelling and discomfort
  • “bad prognosis” with likelihood of intra-articular arthritis and, if so, additional surgery such as an ankle fusion
  • unable to run, play with her kids or wear high heels

 

Drastic Reduction of Jury’s Damages Award Ordered in Shoulder Injury Case

Posted in Shoulder Injuries

On June 8, 2008 Michelle Trezza, then a 25 year old office manager, was a rear seat passenger in a car that was struck by a city bus on Baychester Avenue in the Bronx. She claimed significant right shoulder injuries as a result of the impact and sued both drivers.

Normal Shoulder Anatomy

Since it was undisputed that the bus veered out of its lane and sideswiped the car, a judicial determination was made that the bus driver was 100% at fault and the matter proceeded to a trial on damages only.

On November 22, 2011, Ms. Trezza was awarded damages in the sum of $2,500,000 as follows:

  • pain and suffering in the sum of $2,000,000 ($500,000 past – 3.5 years, $1,500,000 future – 51 years)
  • future medical expenses in the sum of $500,000

In Trezza v. Metropolitan Transit Authority (1st Dept. 2014), the appellate court reduced the $2,500,000 award to $300,000, holding that:

  1. the $500,000 past pain and suffering award was excessive and should be reduced to $300,000 and
  2. there was no basis at all for any future damages and, accordingly, the $1,500,000 future pain and suffering award – as well as the $500,000 future medical expenses award – should be vacated entirely because there was not enough evidence to prove that plaintiff would endure pain and suffering in the future and her claim for future medical expenses was too speculative

Plaintiff’s main injury from the accident was a right shoulder impingement (when the acromion rubs against or impinges on the tendon and the bursa, causing irritation and pain).

Here are other injury details:

  • extensive physical therapy and treatment with orthopedic surgeons, beginning the day after the accident
  •  arthroscopic surgery on 11/7/09 including a bursectomy, resection of the coracoacromial ligament and an anterior acromioplasty
  • development of arthritic “bony spicule” formation
  • five sets of trigger point injections
  • residual shoulder pain and restricted range of motion leaving plaintiff unable to pick up her toddler daughter, ride a bicycle, play with her children or scrub the floor
  • disc herniation at C4-5 (minor treatment, apparently not significant to jury)

Inside Information:

  • Ms. Trezza developed carpal tunnel syndrome in both hands subsequent to the car accident but unrelated to it and underwent carpal tunnel release surgeries in early 2011. The defense argued that much  of plaintiff’s ongoing painful disability was related to her carpal tunnel injuries.
  • In closing arguments, plaintiff’s attorney asked the jury to award past pain and suffering  damages between $200,000 and $300,000 and he suggested that a fair amount for future pain and suffering would be between $300,000 and $500,000.
  • Plaintiff’s pre-trial settlement demand was $375,000 against which the defense had offered $115,000.
  • There was no loss of earnings claim.

Appeals Court Slashes Damages Verdict in Medical Malpractice Case

Posted in Brain Injuries, Medical Malpractice

Their traditional potluck dinner on Christmas Eve in 2001 was shaping up to be another wonderful event in the lives of Tom and Lorraine Buckley. As always, Tom had shopped at the local food stores in Warwick, New York and Lorraine prepared the house. A dozen friends arrived, drinks were served and then tragedy began to unfold.

Tom was sitting on a chair in a corner when Lorraine noticed his eyes were closed while he was repeatedly taking his right hand and trying with difficulty to touch his nose – sort of like the field sobriety tests police officers give to test a driver’s coordination.

Lorraine drove her 49 year old husband to the local hospital where he was treated in the emergency room. A CT scan was read as negative and he was discharged to home after an hour with a diagnosis of “lethargy possibly secondary to alcohol.” It turns out that Mr. Buckley was suffering from the early stages of a stroke but doctors missed the diagnosis.

After falling twice during the night, Lorraine again took Tom to the hospital. This time it was apparent to all that Mr. Buckley was experiencing a stroke. He was admitted and treated but severe and irreversible damage had already occurred.

In his ensuing lawsuit in Orange County Supreme Court, plaintiff claimed that the emergency room physician and the radiologist who read the CT scan were negligent in failing to admit him on Christmas Eve when they could have treated him for a stroke and avoided permanent damage.

After a three week trial, the jurors ruled that both physicians departed from accepted medical practices in failing to admit Mr. Buckley to the hospital on December 24th.

The jury awarded pain and suffering damages in the sum of $6,000,000 ($2,000,00 past – nine years, $4,000,000 future – 22 years); however, the trial judge found the awards excessive and he ordered a reduction to $2,250,000.

In Buckley v. Haque (2d Dept. 2013), the pain and suffering damages were further reduced to $1,300,000 ($300,000 past, $1,000,000 future).

The appellate court decision offers no insight into the nature of the plaintiff’s injuries which we have uncovered:

  • lacunar stroke of left basal ganglion
  • admitted to hospitals for five weeks
  • extensive physical, occupational and speech therapy first as an in-patient, then for many months as an outpatient, then at home
  • extremely slow gait (e.g., cannot cross a street before the light changes)
  • limited use of right arm
  • destruction of almost all social relationships
  • unable to help his teenage children with their education or enjoy fishing with his son and shopping with his daughter
  • marital relationship severely impaired

Inside Information:

  • After asking jurors to award past and future loss of earnings in excess of $4,000,000 (based on plaintiff’s prior salary of about $200,000 a year), plaintiff’s attorney addressed pain and suffering damages simply (and effectively) in his closing argument: “I would suggest that … [pain and suffering damages are] equal to the economic damages at least ….”
  • A full settlement has now been reached. After trial (but before the judge’s decision reducing the damage awards), plaintiff settled with the emergency room physician; he has now settled with the radiologist as well. The settlement terms are undisclosed.
  • Plaintiff had been the president of a silicone business in charge of everything except finances. He tried to return to work after being discharged from the rehabilitation hospital but was unable to run the business, physically, mentally and emotionally. His business partner forced him out of the firm in early 2004 and at the time of the trial he was employed part-time as a grocery store clerk.

Federal Court Orders Increase in Damages in Ankle and Wrist Injury Case

Posted in Ankle Injuries, Wrist Injuries

On May 18, 2007, at about 10:30 p.m., Oliver Tookes, a 57 year old off-duty gardener employed by the Port Authority of New York and New Jersey, returned to his workplace at the Bayonne Bridge tollhouse building in Staten Island where, the day before, he’d inadvertently left his car keys. Unfortunately neither he nor anyone else there that night had keys to the building but he and a supervisor could see the keys on a desk through an open window and they thought they could get the keys by hooking them onto a pole they inserted through the window.

At one point, standing outside the building on a metal grate covering a basement access pit, they had the keys hooked onto the pole but the keys fell off; at another point shortly thereafter, the grate collapsed and Tookes plunged nine feet below to a concrete floor causing serious fractures of his left ankle and left wrist.

The actual area where Tookes fell, from a trial exhibit in the ensuing lawsuit:

Claiming that the grates were not in a reasonably safe condition, Tookes sued the Port Authority in the United States District Court for the Eastern District of New York. Because Tookes was a Pennsylvania resident, so-called diversity jurisdiction was applicable allowing him to sue in federal court. The litigation resulted in two trials plus an appeal.

In the first trial, on December 10, 2010, in Tookes v. Port Authority of New York and New Jersey (E.D.N.Y. No. 08 CV 1060), the jurors found that the Port Authority was negligent in that the grates were not reasonably safe (there was testimony from an expert metallurgist who concluded that they were both misaligned and corroded) and they awarded Mr. Tookes pain and suffering damages in the sum of $450,000 ($50,000 past – 3.5 years, $400,000 future – 18 years). The jury also awarded $300,000 for his loss of earnings.

In a post-trial motion,  plaintiff argued that $50,000 for past pain and suffering was inadequate. The trial judge agreed and issued a decision on August 10, 2011 ordering a new trial limited to the issue of past pain and suffering damages unless the defendant stipulated to increase that award to $500,000.

The defendant refused to stipulate and therefore a second trial was held. On January 24, 2012, the new jury awarded $600,000 for past pain and suffering damages.

The injuries Mr. Tookes suffered are described well in the post-trial decision and summarized as follows:

  • Left ankle Grade 3 open bimalleolar intra-articular fracture with torn ligaments requiring four surgeries: (1) open reduction internal fixation the day after the accident with placement of four screws and a long pin, (2) cleaning and washing out wound infection a week later, (3) saphenous nerve surgery three months later to bury the nerve’s torn end (previously causing electric shock type shooting pain) inside the bone and tissue to get its ends away from everything), and, (4) ankle fusion surgery two years after the accident (see actual trial exhibit below).
  • Left wrist distal radius intra-articular fracture treated with an external fixator in place for several weeks.

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Illustration Courtesy of Anatomical Justice, LLC

Tookes spent about a week in the hospital initially, then was transferred to a nursing home for seven weeks of rehabilitation. At trial, his treating orthopedic surgeon Nadubeethi Jayaram, M.D. testified that plaintiff’s ability to walk had decreased so much that the ankle fusion surgery was needed to restore his ability to walk again without significant pain. The ankle bones were fused together, using a bone graft from the hip, so that there wouldn’t be any more pain producing bone rubbing on bone.

Unfortunately,  Mr. Tookes was left with a permanent limp from having no ankle joint and new pain developed below the level of the fusion that may require even more surgery. The wrist, essentially healed within months, remains with some residual stiffness.

The first jury determined that Mr. Tookes was 40% comparatively negligent for the accident. On a post-trial motion, the plaintiff argued that there couldn’t be any comparative negligence since the grate collapse was not foreseeable to a layman, but the trial judge refused to disturb the jury’s finding.

Plaintiff appealed the comparative negligence finding and on October 18, 2013, the United States Court of Appeals for the Second Circuit reversed and held there was no comparative negligence at all. The appellate judges stated, in part, that “the evidence did not furnish a reasonable basis for a finding of negligence on Tookes’ part that contributed to his accident.” As a result, Tookes became entitled to 100% of the damages awarded, not just 60%.

The appellate court decision also upheld the defense position that the $300,000 loss of earnings award should be offset by expected Social Security disability benefits in the sum of $93,000.

Inside Information:

  • Tookes returned to work on light duty for eleven months before his ankle hurt so much that he required fusion surgery following which he was retired from his job on disability.
  • Just before the case was submitted to the jury for the first time, the trial judge explored the possibility of a settlement. Plaintiff’s demand had been $1,400,000 but the defense told the judge her client would not make any offer at all against such a high demand. The judge told defense counsel: “You may pay a dear price for lack of sound judgment on behalf of your client.” Furthermore, the judge said that the plaintiff’s demand was “not unreasonable,” he suggested that there should be a counteroffer and, finally, he said: “I’m telling you your client has just stonewalled this case. They’re entitled to put their neck in the noose.”
  • Plaintiff’s lawyer, Eric Turkewitz, was not only victorious in just about every aspect of this case but also his $1,400,000 pre-trial settlement demand was prescient – the amount ultimately awarded and paid was $1,455,000 ($1,300,000 in damages less the $93,000  disability benefits offset discussed above plus $248,000 representing interest on the damage awards at 9% per annum from the date of the first verdict in 2010.

Erb’s Palsy Damages Affirmed on Appeal in Obstetrical Medical Malpractice Case

Posted in Medical Malpractice

Susan Skelly-Hand was pregnant with her second child when, on February 25, 1996 at about 12:15 p.m., her water broke and her husband drove her to the hospital in Potsdam, New York. There, she met Jose Lizardi, M.D., the obstetrician who, two years earlier, delivered her first child. At 8:15 p.m. Rachel Elizabeth Hand was born weighing nine pounds, two ounces.

Unfortunately, Rachel’s right shoulder had become lodged against her mother’s pubic bone during the delivery (a condition known as shoulder dystocia).

As a result of the shoulder dystocia, Dr. Lizardi had to pull Rachel out with excessive force causing an injury to her brachial plexus (the network of nerves that sends signals from one’s spine to one’s shoulder, arm and hand) and she was diagnosed with Erb’s palsy (a form of paralysis causing arm weakness and loss of motion).

After years of treatment in a mostly futile effort to gain normal function of her right arm, Rachel’s parents brought a lawsuit against Dr. Lizardi alleging that he was negligent in failing to prepare for and perform a cesarean section, a procedure that would have avoided the dystocia and resulting injuries.

After eight days of trial, on June 27, 2012, the St. Lawrence County jurors rendered their verdict that the doctor was negligent, apparently based upon plaintiff’s expert’s testimony that:

  1. shoulder dystocia can be predicted and avoided by evaluating certain risk factors (e.g., if the mother is short and obese and if the baby’s birth weight is expected to be more than about eight pounds 13 ounces) and
  2.  delivery should be by cesarean section when there is a significant risk of shoulder dystocia.

Pain and suffering damages were awarded in the sum of $2,000,000 ($1,000,000 past – 16 years, $1,000,000 future – 65 years) and in Skelly-Hand v. Lizardi (3d Dept. 2013), both the liability finding and the damages awards were affirmed on appeal.

The court’s decision provides a good summary of plaintiff’s injuries and treatment, as well as a discussion of the prior cases and decisions that have dealt with damages in Erb’s palsy cases.

Here are details of the five surgeries underwent by Rachel Hand between the ages of 13 months and 15 years:

  1. Removal of scar tissue, nerve grafting, nerve repair and muscle repair, with an “L” shaped incision in Rachel’s neck from her ear down to her collar bone
  2. Muscle lengthening and re-tightening
  3. Biceps tendon lengthening and tightening of shoulder dislocation
  4. Triangle tilt procedure in which the scapula and clavicle bones were cut to allow the shoulder to tilt back to neutral
  5. Elbow procedure with serial casting to straighten out the elbow

All five surgeries were performed by Texas surgeon Rahul Nath, M.D., a world renowned brachial plexus injury specialist (whose videotaped testimony was shown to the jury). They were very painful, involved extensive travel and disruption and were followed by long periods of rehabilitation with braces, casts and splints. Unfortunately, the surgeries did not resolve the problem of Rachel’s extremely limited use of her right arm and shoulder.

Dr. Nath testified that Rachel has reached maximum medical improvement, it is likely her condition will deteriorate as she gets older and she will develop nerve compression, carpal tunnel syndrome and/or ulnar nerve compression, which may require further surgery.

Inside Information:

  • Plaintiff’s counsel contended that Dr. Lizardi was “marginally competent” highlighting the facts that (a) he was not board certified in obstetrics and gynecology and (b) in 1995, the State of New York suspended his license to practice medicine (the suspension was stayed during a period of probation, though, and he was allowed to continue practice). Over defense counsel’s objection, the trial judge allowed plaintiff to introduce evidence of the suspension.
  • In defense counsel’s summation, the jurors were urged to ignore the defendant’s lack of board certification and his suspension in favor of  adopting the testimony of the defendant’s expert who concluded that (a) a cesarean section was contraindicated and (b) Dr. Lizardi did not deviate from accepted standards of medical care.
  • $2,000,000 for pain and suffering appears to be the highest amount sustained by an appellate court in New York in an Erb’s palsy case. Plaintiff was represented by The Mills Law Firm, both at trial and on the appeal.
  • The total judgment was approximately $3,150,000. In addition to the $2,000,000 for pain and suffering damages, the jury awarded economic damages in the sum of approximately $1,150,000 as follows: $500,000 for reduction in lifetime earnings, $410,000 for future medical evaluations, services, therapy and equipment and $240,000  for past medical expenses.
  • The economic damages claim was supported by the testimony of plaintiff’s vocational rehabilitation expert, Kenneth W. Reagles, Ph.D.
  • After trial, the defense offered to settle for $2,000,000, the limits of the malpractice insurance policies available to Dr. Lizardi; however, plaintiff rejected the offer. Then, on December 20, 2012, the doctor filed a petition under Chapter 11 of the Bankruptcy Code in order to prevent judgment collection enforcement actions. This month, the the doctor consented to the dismissal of his bankruptcy case.