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New York Injury Cases Blog

News & Updates on Pain & Suffering Verdicts & Settlements

Hand Injury Pain and Suffering Award Affirmed

Posted in Hand Injuries

On June 11, 2008, Rose Walker was headed home on a subway train in Brooklyn after her night shift as a nurse’s aide at a Manhattan hospital. She noticed a young girl alone and crying who had been separated from her brothers on the way to school. Ms. Walker helped the child find the train’s conductor in his forward cabin.

The cabin door was held open by the conductor with his body but when he moved away, the door slammed shut onto Ms. Walker’s left hand causing serious injuries.

Walker sued the transit authority claiming the conductor negligently allowed the door to close when he unexpectedly walked away from it. The defendant argued that Walker was at least partially responsible because she should have kept her hands free from the door’s path. In a bifurcated trial in 2011, the Kings County jury found that the transit authority was 100% at fault.

The jury then awarded plaintiff pain and suffering damages in the sum of $270,000 ($250,000 past – 3 1/2 years, $20,000 future – 30 years).

Both the liability verdict and the damages award have been affirmed in Walker v. New York City Transit Authority (2d Dept. 2014).

The court’s decision discloses that plaintiff sustained a crush injury to a finger requiring two surgeries and leaving her with continuing pain, numbness, tremors, loss of strength and loss of motion in her finger and hand. Here are additional injury details:

  • comminuted fracture of the distal phalanx of plaintiff’s left (non-dominant) index finger with nail bed laceration requiring surgical debridement, removal of the nailplate, repair of the laceration, complex repair of the avulsion and closed treatment of the fracture (under local anesthesia)
  • plaintiff was discharged to home on the day of the accident with a sling, dressings and pain medication
  • physical therapy for 15 months until insurance benefits ran out
  • second surgery (with axillary block) on 4/1/09 – capsulectomy (removal of scar tissue) requiring additional physical therapy that was ongoing as of the trial date
  • unable to tie shoes, zipper, make a fist or floss teeth
  • permanent scarring
  • unable to return to work as a nurse’s aide

Plaintiff was fired from her job in 2009 because she was physically unable to perform her duties as a nurse’s aide and there was no light duty job that would accommodate her physical restrictions. She then got her masters degree in social work and as of trial was looking for a job in that field; however, she remained unemployed since the date of her firing.

Defense counsel argued that there should be no award at all for future loss of earnings because plaintiff could have returned to work as a nurse’s aide, she was likely to become employed as a social worker and she “chose a time she is going to return to work.” Plaintiff’s attorney suggested an award of $350,000 (based roughly on plaintiff’s pre-accident annual salary of $37,000 and about nine years of work life expectancy) but the jury declined to make any award at all for future loss of earnings.

Plaintiff’s expert orthopedic surgeon, Jerry Lubliner, M.D., testified that Ms. Walker’s limitations, pain and range of motion deficits are all permanent and that she will need two more scar tissue release surgeries  in the future. The defense orthopedic surgeon, Jay Nathan, M.D., disagreed stating that more surgery is not indicated. The jury awarded $15,000 for future medical expenses over a three year period.

Inside Information:

  • In closing arguments, plaintiff’s attorney asked the jury to award $575,000 for past pain and suffering plus $475,000 for the future; defense counsel suggested $50,000 for past pain and suffering plus $20,000 for the future.
  • Plaintiff’s expert economist testified that her past lost wage and fringe benefits were $86,644; however, the jury awarded $130,000. The trial judge issued an order reducing this aspect of the damages verdict to the proper amount – $86,644.

Appellate Court Reduces Pain and Suffering Verdict in Back Injury Case

Posted in Back Injuries

On June 23, 2008, Ronald Weathers was in a car accident when the Dodge Neon he was driving was struck by a left turning SUV driven by Alex Rios.

The accident scene – the intersection of Shell Road and Avenue Z in Brooklyn:

Mr. Weathers, then a 55 year old automobile mechanic for many years who’d been laid off six months earlier when his place of employment closed down, sustained a back injury and was in pain but declined medical treatment. Instead, his wife and son came to the scene, drove him home and he sought treatment at a local hospital the next day and from a physician the day after that. During the next six months or so, Weathers treated with doctors and physical therapists but his pain persisted.

In the lawsuit he commenced in 2010,  Weathers was granted summary judgment on liability. The matter then proceeded to a damages only trial.

Defendant argued that plaintiff’s injuries from the accident were were merely strains or sprains of his back that did not merit any pain and suffering award at all. After deliberations, though, on April 17, 2012, the Kings County jury, in response to the judge’s charge, found that Weathers had sustained a back injury that was a significant and permanent consequential limitation of use and then awarded plaintiff pain and suffering damages in the sum of $1,450,000 ($450,000 past – four years, $1,000,000 future – 20 years).

The defendant appealed arguing successfully that the award was excessive. In Weathers v. Rios (2nd Dept. 2014), the appeals court determined that the proper amount for pain and suffering damages in this case is $800,000 ($350,000 past, $450,000 future).

The court’s decision neglects to inform readers about the injuries sustained. Here are the injury details:

  • herniated and bulging discs at L3-4 and L4-5
  • physical therapy for three months
  • three epidural steroid injections
  • epidurogram (without anesthesia) – a painful diagnostic procedure in which contrast dye was injected into the disc space under fluoroscopic guidance
  • percutaneous discectomy at L3-4 and L4-5 followed by additional physical therapy and pain management treatment
  • continuing back pain (though no longer radiating to leg) with respect to which plaintiff’s surgeon, pain management specialist Andrew Davy M.D., testified that he proposed implantation of a spinal cord stimulator
  • inability to lift heavy objects or to bend or sit for long periods of time
  • diminished ability to play with grandchildren, take walks with his wife or cook

A percutaneous discectomy is a minimally invasive technique used to surgically treat disc bulges, protrusions and small contained herniated discs. The surgeon goes in through the skin with a needle like instrument to remove disk material that may be pressing against nerve roots causing pain. The procedure can be performed in an outpatient environment with most patients returning to work within a week. Here is an illustration of the procedure in which an endoscope is inserted through the skin to remove herniated disc material:

The defendant highlighted several facts that he contended demonstrated that whatever injuries plaintiff had were from degenerative conditions in his spine and that the jury’s pain and suffering awards were excessive:

  1. Plaintiff stopped seeing his two treating doctors a year before trial and his physical therapists three and a half years before trial.
  2. Plaintiff’s medical history before the accident  included rheumatoid arthritis of his left knee, both wrists, hands and his fingers for which he took weekly pain medication,  diabetes, thyroid disease and prostate cancer (for which he underwent radiation treatment that began a month before the accident).
  3. The surgery plaintiff underwent was minor involving no hospitalization, general anesthesia or implanted hardware or grafts.

Inside Information:

  • In their summations, plaintiff’s attorney asked the jurors to award $1,450,000 for pain and suffering (the exact amount they awarded) whereas defense counsel argued that plaintiff’s injuries did not merit any pain and suffering award at all.
  • At the time of trial, defendant’s offer to settle was $15,000 whereas plaintiff’s demand was $100,000 (the defendant’s insurance policy limit). Plaintiff’s counsel contended that the defendant’s insurance company refused to negotiate in good faith and he placed a statement on the record to that effect.  Contending that the carrier should have known a verdict well in excess of its policy limit would ensue and thereby expose its insured to personal liability, plaintiff claims that the carrier should be ordered to pay the full final verdict sum, even though it’s well in excess of the policy limits.
  • Plaintiff sought unsuccessfully to mention to the jury that the defendant’s expert radiologist had her license suspended in 1987 when she forged another doctor’s name on prescriptions. The trial judge ruled that the incident was too far in the past and thus inadmissible.

Appellate Court Reduces Pain and Suffering Award in Multi-Trauma Car Accident Case

Posted in Back Injuries, Knee Injuries, Neck Injuries, Shoulder Injuries

On June 25, 2007, at about 8:30 a.m., Melody Sweet was driving her 1986 Mustang convertible on Innis Avenue in Poughkeepsie at a speed of 25-30 miles per hour when Christopher Rios pulled his sport utility vehicle out of a parking space on the side of the road and collided with her vehicle.

A red 1986 Mustang convertible (Ms. Sweet’s was pink and was totaled in the accident):

The crash caused neck, back, shoulder and knee injuries to the then 47 year old Ms. Sweet. She was transported by ambulance to the local hospital where she was treated for low back pain and a contusion to her right shin and tibia. Twelve days later, Ms. Sweet began an extensive course of medical treatment that included two surgical procedures.

In her ensuing lawsuit, on April 13, 2011, a Dutchess County jury found Mr. Rios fully at fault and awarded Ms. Sweet pain and suffering damages in the sum of $720,000 ($100,000 past – four years, $620,000 future – 31 years).

The defendant appealed, claiming that the amount awarded for future damages was excessive. The appellate court agreed, in Sweet v. Rios (2d Dept. 2014), and ordered a reduction of the future damage award from $620,000 to $465,000. The court thus determined that the proper total pain and suffering award for plaintiff is $565,000 ($100,000 past, $465,000 future).

The court’s decision mentions some of the injuries; however, here are the injury details:

  • Neck and Back – Cervical disc protrusions at C4-5 and C5-6 and lumbar disc bulges at L4 and L5-S1 that required four trigger point injections, extensive physical therapy, pain management and chiropractic treatment and left plaintiff with significant range of motion deficits that her doctors opined are permanent and, as to her back, Ms. Sweet said left her with radiating and stabbing pain that continues to get worse. One of her doctors opined that she will need microdiscectomy lumbar surgery in the future.
  • Left Shoulder – Arthroscopic surgery on 11/1/07 to repair the superior labrum, anterior and interior capsulorraphies, glenoid chondroplasty, rotator cuff debridement, partial synovectomy, removal of loose bodies, acromioplasty and distal clavicle resection. Despite the surgery, and a series of three trigger point injections thereafter, Ms. Sweet testified she cannot lift her left arm above her shoulder and has continuing pain and stiffness. Her doctors testified she has significant range of motion deficits, her injury is permanent and “there is no doubt” she will require major reconstructive surgery or replacement.
  • Right Knee – Arthroscopic surgery on 3/20/08 to repair or trim back meniscal tears. The surgery was successful, plaintiff regained full range of motion in her knee, sharp pain and snapping resolved and her attorneys on appeal essentially abandoned this aspect of her claim.
  • Work Loss – Ms. Sweet had been a waitress for 30 years in and around the Poughkeepsie area. She missed two days of work right after the accident before returning on limited duty for the next few months. Thereafter, though, she never returned and claimed she is permanently unable to do so because of the injuries from the accident.
  • Activities of Daily Living – Plaintiff testified that she can no longer enjoy her recreational activities such as hiking, walking in the woods and ice skating. Also, she said she was socially isolated because her social life had revolved around her work and she lost her friends.

The defendant’s expert orthopedic surgeon opined that plaintiff sustained no injury to her neck, the injury to her back was merely a sprain with temporary aggravation of degenerative disc disease, her shoulder conditions were pre-existing and not caused by the accident and her knee injury was not caused by the accident. He noted that significant obesity (plaintiff was five feet seven inches tall and weighed 260 pounds at the time) was a more likely cause of many of plaintiff’s complaints.

Inside Information:

  • Prior to the accident, Ms. Sweet had never sought medical treatment nor had she experienced any medical problems with her neck, back, left shoulder or right knee.
  • Two years after this accident, Ms. Sweet was involved in a slip and fall accident at a grocery store in which she hit her face, cheek bone and jaw causing broken dentures and a ripped off toenail.
  • Ms. Sweet was determined to be disabled by the Social Security Administration and at trial was collecting Social Security Disability (“SSD”) benefits of $681 per month.
  • The jury also awarded (and the appellate court sustained) past and future lost earnings in the sum of $234,000 ($76,000 past, $158,000 future -  7.9 years).
  • In denying a motion to set aside the jury verdict, the trial judge stated: “This was somewhat of an unusual case by virtue of the fact that plaintiff’s pleasures in life to a great degree revolve around her work which she could no longer perform…. In many ways, her pleasures in life revolved around being at the diner with her friends …. In effect, her social life came to a halt.”
  • Plaintiff’s pre-trial settlement demand was $750,000; defendant’s offer was $60,000.

Significant Pain and Suffering Verdict Upheld on Appeal in Eye Surgery Case

Posted in Eye and Vision Injuries, Medical Malpractice

On March 25, 2004, Johnson Devadas, a 25 year old pharmacist, consulted with ophthalmologist Kevin Niksarli, M.D. to determine his candidacy for Laser-Assisted In-Situ Keratomileusis (known as LASIK – a procedure that uses a laser to correct certain vision problems and reduce a person’s dependence on glasses or contact lenses).

Dr. Niksarli evaluated Mr. Devadas and found him to be a good candidate for the procedure which was then performed upon both of his eyes on April 7, 2004. He followed up with the doctor the next day, a week later and a month later.

On February 21, 2007, Devadas next (and last) returned to the doctor with complaints of blurriness and double vision. He’d developed ectasia, a progressive thinning and bulging of the corneas that causes diminished visual function.

On May 31, 2007, Devadas filed a medical malpractice lawsuit against Dr. Niksarli claiming that the doctor failed to disclose the risks of the procedure and that he would not have undergone the surgery had adequate disclosure been given beforehand.

It turns out that Devadas had a mild or early form of keratoconus known as forme fruste keratoconus that (a) was not but should have been diagnosed by Dr. Niksarli and (b) contraindicated the LASIK surgery.

On June 10, 2009, after a nine day trial, the Manhattan jury returned a verdict in plaintiff’s favor finding that the defendant committed malpractice by (1)  performing surgery that was contraindicated and (2) failing to obtain informed consent prior to the surgery.

The jury awarded pain and suffering damages in the sum of $3,100,000 ($100,000 past – five years, $3,000,000 future -  45  years).

On appeal, the defense argued that the pain and suffering award was excessive because after the surgery plaintiff had near 20/20 visual acuity.

Plaintiff persuasively countered, though, that visual function has two components – quantity (i.e., visual acuity) and quality – and that his visual quality was so impaired that it left him with many permanent, significant deficits including:

  • double vision
  • blurry vision (with resulting headaches)
  • starbursts and halos
  • chronic dry eyes (limiting his ability to wear contact lenses to six hours a day and leaving him with severely diminished functional vision for 18 hours a day)
  • poor night vision resulting in inability to drive at night (after contacts are removed due to intolerance)
  • inability to resume recreational bowling or billiards
  • diminished ability to complete household tasks including cooking and home repairs

In Devadas v. Niksarli (1st Dept. 2014), the appellate court affirmed both the liability finding and the pain and suffering damages awards.

In addition to pain and suffering damages, Devadas was awarded (and the appeals court sustained)  $60,000 for past loss of earnings and $20,000 a year for 37 years for future loss of earnings. These awards were based, in part, on plaintiff’s inability to fill as many prescriptions as he used to and the additional costs incurred when he had to hire a pharmacy technician to serve as another pair of eyes to double-check his accuracy.

Inside Information:

  • The loss of consortium claim was dismissed on appeal because the continuous treatment doctrine that allowed plaintiff to avoid the statute of limitations defense (2 1/2 years in medical malpractice cases) has been held by the courts to be personal to the recipient of the medical treatment and does not extend to spouses.
  • Plaintiff had signed an informed consent form document on the day of surgery but claimed that the administration of Valium shortly before he reviewed and signed the form was inappropriate. Also, there was a handwritten informed consent note that plaintiff argued, through an expert forensic chemist who specializes in the examination of questioned documents, was created by the defendant years after the surgery and intentionally artificially aged by him.
  • Plaintiff’s attorney, Todd J. Krouner, has successfully prosecuted dozens of LASIK and related eye medical malpractice cases and is the premier attorney for LASIK cases in New York.

Medical Malpractice Award Slashed on Appeal

Posted in Medical Malpractice

Adelei Padilla, a 31 year old administrative assistant, had been feeling right flank pain for several weeks when she was referred to a surgeon who diagnosed her with symptomatic cholelithiasis (gallstones). Accordingly, on March 30, 2009, she  underwent a laparoscopic cholecystectomy (gallbladder removal surgery) at  Montefiore Medical Center in the Bronx. She was discharged to home that night.

Unfortunately, Ms. Padilla returned to the hospital 10 days later complaining of severe pain radiating to her back as well as a fever, nausea, vomiting and chills. She was diagnosed with a perforated iliac artery that caused a pseudoaneurysm (a hematoma that occurs outside of an artery or vein) and a retroperitoneal hematoma. She was in a life-threatening situation and had to undergo emergency surgery to insert a stent into the artery. The surgery was successful and Ms. Padilla was discharged from the hospital after three days.

A lawsuit was brought against the surgeon who performed the gallbladder surgery claiming that he deviated from acceptable medical practice when the needle he was using to probe into the gallbladder punctured the iliac artery. It took the Bronx County jurors only 40 minutes to return their verdict on February 13, 2013 finding malpractice had occurred and awarding past pain and suffering damages (four years) in the sum of $800,000.

The jurors were not presented the issue of future pain and suffering damages because the trial judge had ruled that there was insufficient medical evidence from plaintiff’s expert as to how any of her current complaints of pain were associated with either of her surgeries.

The defense argued that there was insufficient evidence to support the malpractice finding and Justice Norma Ruiz agreed and issued a  post-trial decision dismissing the case.

On appeal, though, in Padilla v. Montefiore Medical Center (1st Dept. 2014), the jury’s liability finding was reinstated although the damages award was reduced to $225,000.

The appellate court judges apparently agreed with the defense argument that plaintiff’s pain was limited in scope and duration and that her most significant pain occurred early in the post-operative period following the gallbladder surgery when she was expected to experience pain from the surgery itself. Also, there was no expert testimony associating continued pain following the resolution of the hematoma with the surgeon’s negligence so, the defense argued, there was no objective basis for awarding damages for pain and suffering more than one month post-stenting.

Following the vascular surgery, Ms. Padilla said she had groin and hip pain traveling down her right leg (that continued through to the date of trial and left her unable to run or perform at the gym cardiovascular activities she used to engage in two to three times a week) but she also was well enough to return to her social services job within about three weeks. At trial, she testified she took public transportation to work each day and was able to take care of her home (laundry, shopping, cooking and cleaning) and her nine year old daughter.

Inside Information:

  • The jury of six included two emergency medical technicians and a volunteer worker at the the defendant hospital.
  • Plaintiff’s pre-trial settlement demand was $60,000; her attorney asked the jury for $750,000.

Appeals Court Affirms Substantial Award in Excessive Force Case against State Trooper

Posted in Facial Injuries, Neck Injuries

On December 20, 2001, at about 8:30 a.m., David Reynolds was driving on Ridge Road in Wolcott, New York when he was pulled over and arrested by a New York State trooper for driving without a valid license.

An altercation ensued (there was a 10 year old history of hostility between Reynolds and the trooper)  and the trooper repeatedly banged Mr. Reynolds’ head  against the car’s trunk while Reynolds was handcuffed. He was then released after the trooper discovered that Reynolds had a temporary license in his wallet.

Mr. Reynolds, then 37 years old, drove himself to the local hospital where he complained of head and neck pain. Here is what Mr. Reynolds looked like in a photo taken the day after the incident:

Reynolds filed a lawsuit against New York State claiming that the trooper had no reasonable cause to arrest him and that his injuries were caused by the trooper’s use of excessive force.

After a bench trial, Court of Claims judge Nicholas V. Midey, Jr. issued a decision on liability in claimant’s favor dated December 23, 2009  and directed that a new trial to be held on the issue of damages only.

On May 14, 2012, following the the damages trial, the judge awarded damages in the sum of $1,017,500 as follows:

  • $225,000 past pain and suffering – 10 years,
  • $475,000 future pain and suffering – 30 years
  • $17,500 past medical expenses
  •  $300,000 future medical expenses

Now, on appeal, the damages decision has been affirmed in Reynolds v. State of New York (4th Dept. 2014).

As set forth in the appellate court decision, claimant sustained three cervical herniated discs and a closed head injury. Here are additional injury details:

  • presented at hospital on the night of the incident with a swollen, bloody and blackened left eye, a bump on his head (permanent) and complaints of head and neck pain for which he was given a neck brace and pain medication
  • continuing headaches and head pain with memory problems, dizziness, nightmares and stuttering
  • continuing neck pain with radiculopathy and diminished range of motion due to herniated discs at C4-5, C5-6 and C6-7
  • continuing need for narcotic pain medication
  • unable to hunt, play sports, drive a car, clean house or cook

His doctors recommended that Reynolds undergo two separate cervical fusion surgeries but opined that even with successful surgery he will always have cervical pain and related numbness (though surgery would alleviate some of that), he will not regain full range of motion and he will have permanent lifting restrictions.

Inside Information:

  • Reynolds made no claim for lost earnings as he had  injured his knee in 1984 in a potato harvester accident and had been on disability ever since.
  • The State argued that Reynolds failed to mitigate his injuries by ignoring medical advice (as to cervical fusion surgery) and engaging in post-injury manual labor (riding a mower for a few months in 2003 and shoveling roofs and driveways in 2005 and 2006).
  • Reynolds claimed lumbar herniations requiring surgery were casually connected but neither the trial judge nor the appellate court agreed, in part because he did not complain of back pain for two years after the assault.
  • At the time of trial, Reynolds was self-medicating by smoking marijuana instead of taking prescribed narcotic medications such as Vicodin that he said were no longer effective.


Substantial Awards in Medical Malpractice Case for Pre-Death Pain and Suffering and Costs of Care of Decedent’s Disabled Adult Child

Posted in Medical Malpractice, Wrongful Death

On Wednesday June 18, 2008, Nam Yoon Lee woke up with stabbing pain on the right side of his stomach. He went with his wife to the emergency room at a hospital in Queens where morphine was administered, tests led to a diagnosis of gallbladder disease and a plan was made to surgically remove his gallbladder (a cholecystectomy).

Mr. Lee, 60 years old, was admitted to the hospital’s surgery service and, in advance of the surgery, he was NPO (no food, intravenous fluids and antibiotics only). For unknown reasons, and with horrible consequences, Mr. Lee’s surgery never took place. Over the next several days, his NPO status was maintained and Mr. Lee’s hunger and thirst progressed into great pain and then breathing itself became difficult. He feared he was dying. His fears were justified.

On Sunday June 22nd, Mr. Lee developed sepsis (because of the negligent failure to remove his infected gallbladder), went into full cardiac arrest and died at about 4 p.m. that day after attempts to revive him failed. He is survived by his then 56 year old wife, Young Sook Lee and his then 29 year old daughter, Jae Yon Lee.

Laparoscopic surgery to remove a gallbladder is relatively simple and should have been performed on Mr. Lee:

A lawsuit was filed on behalf of Mr. Lee’s estate against the hospital and three physicians. Defendants conceded liability and on December 23, 2011, after 18 days of trial, a Queens County jury heard the case and rendered a verdict for $7,579,560:

  • $5,000,000 for pre-death pain and suffering (from 6/18/08 through 6/22/08)
  • $336,000 for past economic loss to decedent’s wife and daughter (from 6/22/08 to the date of the verdict)
  • $2,243,560 for future economic loss to decedent’s wife and daughter

The trial judge ordered a reduction of the pain and suffering award to $3,750,000.

Now, in Lee v. New York Hospital Queens (2d Dept. 2014), the appellate court has affirmed the $3,750,000 pain and suffering award as well as the $2,243,560 future economic loss award while reducing the past economic loss award to $250,000. The total affirmed award stands at $6,243,560.

As set forth in the court’s opinion, the substantial pain and suffering award was based upon evidence that from the time of Mr. Lee’s admission to the hospital until his death four days later he complained of pain, discomfort, hunger, difficulty breathing and feeling that he was dying. Here are additional injury details:

  • continuing inflammation of gallstones causing fevers, chills, sharp pain and sickness
  • extreme anxiety due to daily delays of gallbladder surgery
  • shivering, wheezing, shortness of breath and whole body shakes (rigors) starting about 12 hours before death (as systemic sepsis developed)
  • screaming, saying “I feel like I’m dying” and I am in “so much pain” (about two hours or so before death)
  • critical oxygen deprived state requiring a rapid response team which found Mr. Lee violent and in need of physical restraint
  • intubation an hour before death with medication that left him paralyzed for about four minutes, aware of the tube down his throat which made him gag, unable to speak and produced conscious suffering and terror
  • when the paralytic medication wore off, Mr. Lee became able to move and he reacted by thrashing and pulling out the tube; his brain then succumbed to oxygen deprivation and he was aware he was asphyxiating for four more minutes until he was unconscious and went into cardiac arrest

The $2,243,560 affirmed award for future economic loss was based upon the claim that a licensed practical nurse was needed to care for Mr. Lee’s daughter, Jae, over the course of the 19 years of Mr. Lee’s life expectancy before he died. Jae was 32 years old at the time of trial but was unable to live on her own due to mental disabilities that, among other things such as epilepsy induced seizures and schizophrenia, left her with an IQ of an eight year old child. Mr. Lee had been her primary caregiver. At the time of trial, Jae was living at Hope House, which is for people who are mentally retarded and disabled, but her mother wanted her to return home and expert psychiatric testimony indicated that home-care with a nurse would be best.

Inside Information:

  • Mr. Lee had worked part-time as a salesman earning about $12,000 a year but apparently failed to pay income taxes after 2007. In his closing argument, defense counsel accused plaintiff of lying under oath based upon the amount alleged for lost earnings in the bill of particulars and suggested that Mr. and Mrs. Lee “committed fraud” and that the lawsuit was an opportunity to “get rich” provided plaintiff can “get the jury to go along with this.”
  • Defendants’ concession of liability was the subject of an intense dispute (as to which of the three doctors were conceding and what facts as to liability, if any, could be brought out at trial) and caused the trial judge to say to defense counsel “I will not allow this farce to continue…. I have never in my life experienced such a farce ….”
  • Mr. Lee was also survived by an adult son who was the administrator of his estate but no individual claim was made on his behalf.


Jury’s Failure to Award Future Pain and Suffering Damages Overturned in Breast Cancer Medical Malpractice Case

Posted in Medical Malpractice

Diane Abbatantuono was diagnosed with breast cancer in 1989 at which time she was treated with a lumpectomy, axillary lymph node dissection and five years of medicine.

In March 2007, after 18 years of remission, breast cancer was found again. Then 56 years old, Ms. Abbatantuono treated with breast surgeon Susan K. Boolbol, M.D. who performed a total mastectomy on April 20, 2007.

Tragically, the cancer continued to grow and on October 24, 2007 Ms. Abbatantuono had to endure another surgery (to remove axillary nodes) and then eight sessions of chemotherapy. In November 2010, though, she became metastatic when cancer was found in her right lung. A lobectomy was performed in which the entire upper lobe of Ms. Abbatantuono’s lung was removed.

In her lawsuit, Ms. Abbatantuono claimed that a study done just before her mastectomy in 2007 indicated that cancer had invaded nearby lymph nodes but they were not resected during the surgery and, contrary to good and accepted medical practice, the surgeon did not inform her she needed chemotherapy.

The Richmond County jury agreed and in 2012 awarded plaintiff $500,000 for her five years past pain and suffering while awarding zero for the future. The trial judge issued a post-trial decision adding $500,000 for future pain and suffering.

The appellate court has now affirmed the $1,000,000  pain and suffering award in Abbatantuono v. Boolbol (2d Dept. 2014).

Here are injury details resulting from the fact that the cancer left in plaintiff’s lymph nodes was untreated and thereby permitted to grow from May 2007 through October 24, 2007:

  • node removal surgery
  • lobectomy
  • respiratory therapy
  • lung is hyper resonant (extra air sounds)
  • shortness of breath, easily fatigued
  • severe mental anguish; exacerbated anxiety disorder; fear of dying; recurrent nightmares

Plaintiff’s expert oncologist, Petra Rietschel, M.D., testified that the defendant’s malpractice caused plaintiff to go from a 60% chance of survival in March 2007 down to a 40-50% chance of survival in October 2007 and, then to 0% chance of survival once the cancer metastasized into incurable Stage IV cancer.

Inside Information:

  • During the trial, defendant’s highest settlement offer was $125,000 whereas plaintiff’s settlement demand was $975,000. After  the verdict, plaintiff reduced her demand to $600,000 but the defendant did not even offer the $500,000 past damages only verdict sum.
  • The jury declined to make an award to plaintiff’s husband for his loss of consortium claim.
  • Defendant testified that she dictated an operative report after the mastectomy but neither she nor the hospital produced a copy at the trial or explained its disappearance.
  • This was a very hard fought case, with a 15 day trial, significant post-trial motion practice and an appeal with well-known and successful firms on both sides – Victoria Wickman for the plaintiff and Aaronson Rappaport Feinstein & Deutsch for the defendant.

Large Award Affirmed for Back, Shoulder and Elbow Injuries in Bus Crash Case

Posted in Back Injuries, Elbow Injuries, Shoulder Injuries

On June 25, 2008 at about 3:30 a.m., Tiffany Halsey was a passenger in a city bus, on her way home from her job as the late shift cashier at New York Fried Chicken in Queens.

Suddenly, the bus veered off the roadway, mounted the sidewalk and struck a utility pole. Ms. Halsey, then 24 years old, was tossed and thrown about in her seat injuring her back, right shoulder and right arm. She was extricated from the bus by emergency personnel and taken to a hospital.

This is what the bus looked like at the scene – from an exhibit at the ensuing trial:

After a CT scan and X-Rays showed no fractures, Ms. Halsey was offered morphine for her pain and directed to follow up with her own physicians should the pain persist. It did and she then began a long course of medical treatment.

Halsey filed suit against the transit authority and the bus driver. The defendants conceded liability and a damages only trial was held in Queens in November 2011 at the end of which the jurors awarded plaintiff $3,578,000 for her pain and suffering ($578,000 past – 3 1/2 years, $3,000,000 future – 54 years).

The defendants appealed arguing that the $3,000,000 future damages award was excessive. In Halsey v. New York City Transit Authority (2d Dept. 2014), the entire award has been affirmed.

The court’s opinion sets out several details of plaintiff’s injuries and treatment. Essentially, plaintiff sustained a torn rotator cuff in her right shoulder, torn tendons in her right elbow and herniated discs in her lumbar spine. She underwent conservative treatment for three months or so including extensive physical therapy, the use of a sling for her arm and a brace for her back, a series of epidural steroid injections in her spine and narcotic pain medications.

Unable to do much of anything at all and with persistent pain, Ms. Halsey’s doctors recommended surgery and she was operated on three times. Here are the details of her three surgeries:

  • Surgery # 1 on 10/7/08: right shoulder arthroscopy, synovectomy, bursectomy, lysis of corcoacromial ligament and intraarticular debridement (to repair partial thickness rotator cuff tear, impingement syndrome and partial tear of the distal triceps tendon)
  • Surgery # 2 on 3/6/09: right elbow lateral epicondylectomy and repair of tendon aponeurosis
  • Surgery # 3 on 9/25/09: L4-5 laminectomy, diskectomy and fusion with application of an autogenous bone graft (to repair herniated discs at L4-L5)

At the time of trial, Ms. Halsey testified that her pain and limitations were continuing. All of her injuries were deemed permanent by her doctors and the prognosis for her back was gloomiest according to her treating orthopedic surgeon Phil Rafiy, M.D. who testified that Ms. Halsey had restricted ranges of motion which will limit her ability to bathe, clean and dress herself and that her injuries require ongoing injections, pain management and medications.

Testimony from defense medical experts, including orthopedic surgeon Edward L. Mills, M.D. and radiologist Joseph Tuvia, M.D., was presented in support of the defendants’ claim that Ms. Halsey’s injuries were not so severe as to require any surgery and, in any event, most were degenerative, pre-existed the accident and/or much improved and not at all debilitating.

Inside Information:

  • In defendants’ closing arguments,  counsel  suggested that $150,000 would be fair for plaintiff’s total pain and suffering ($100,000 past plus $50,000 future);  in plaintiff’s closing arguments, counsel asked for $17,000,000 ($5,000,000 past plus $12,000,000 future).
  • In addition to pain and suffering awards, the jury determined that plaintiff was entitled to an award for her medical expenses in the sum of $467,000 ($77,000 past, $385,000 future – 54 years). The largest parts of the future medical expenses claims were for lifetime medications (about $100,000) and steroid injections (about $150,000).


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.”