Header graphic for print

New York Injury Cases Blog

News & Updates on Pain & Suffering Verdicts & Settlements

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.”

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.