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

On August 22, 1998 Enrique Isaac was driving on Linden Boulevard near its intersection at Ashford Street in Brooklyn. He collided with a left turning city bus and ended up with several substantial orthopedic injuries.

At trial, the then 53 year old plaintiff was awarded pain and suffering damages in the sum of $2,250,000 ($1,500,000 past - 9 years, $750,000 future - 20 years).

The defense claimed that the award was excessive and the appellate court has agreed.

In Isaac v. New York City Transit Authority (2d Dept. 2011), the award was reduced by $450,000  as follows:

• past pain and suffering reduced from $1,500,000 to $1,200,000
• future pain and suffering reduced from $750,000 to $600,000

The court's decision omits any reference at all to the nature of plaintiff's injuries. We have uncovered the facts.

From the scene of the accident, plaintiff was taken by ambulance to a local hospital where he was admitted for five days and then transferred to another hospital where he was admitted for an additional two weeks. Plaintiff underwent three open reduction internal fixation (ORIF) surgeries in which metal plates and screws were inserted:

1. Hip: acetabular hip socket fractures  (wire, plates and screws to fix)                                                
2. Shoulder: proximal humerus fracture reduced by the use of wires and screws                           
3. Hand: fractures of the base of the 2nd, 3rd and 4th metacarpals (plate and screws to fix)

Plaintiff argued on appeal that the jury's award was reasonable and not at all excessive, in view of the foregoing as well as the facts that he:

• was confined to a wheelchair for three months and to his home for eight months
• had continuing pain in his legs with cramps awakening him 2-3 nights a week
• could no longer enjoy softball, soccer and basketball

The defense countered arguing that Mr. Isaac made a good recovery, was left with only a moderate disability of his hip and that he:

• stopped taking pain medication six months after the accident
• returned to work (as a hospital housekeeper) 11 months after the accident
• stopped all medical treatment for his injuries six months after the accident

The appellate court decision approvingly cites five prior cases:

1. Conley v. City of New York (2d Dept. 2007) - $200,000 (increased from $14,000) for a 74 year old woman with an intra-articular wrist fracture requiring surgery
2. Biejanov v. Guttman (2d Dept. 2006) -  $600,000 (reduced from $1,050,000) for a four year old boy with fractures of his thumb and index fingers requiring surgery, leaving him with ulnar nerve damage
3. Muff v. Lallave Transp. (3d Dept. 2004) -  $800,000 for a 36 year old man with bilateral wrist fractures, crushed pinky finger and fractured shoulder, requiring six surgeries (including a wrist fusion)
4. Jansen v. Raimondo & Son Constr. Corp. (2d Dept. 2002) - $750,000 (reduced from $1,030,000) for a 36 year old man with severe bilateral shoulder injuries (subluxation and dislocation) requiring two surgeries, fractures of his humerus and clavicle and bilateral carpal tunnel syndrome
5. Dooknah v. Thompson (2d Dept. 2000) - $200,000 (increased from $50,000) for a 61 year old man with nondisplaced fractures of his acetabulum and pubic ramus (might need hip replacement surgery in the future)

The court did not address a case that plaintiff cited that appears to be relevant - Lukas v. Trump (2d Dept. 2001). Mr. Lukas had been afflicted with polio since the age of 17 and could walk only with the assistance of crutches and braces. At the age of 60, he fell due to defendant's negligence and sustained a fractured hip that required surgery to insert screws and a metal plate into that portion of his femur that met his pelvic bone. As a result, he was confined to a wheelchair and could no longer walk the way he used to (with crutches and braces). The jury's pain and suffering award of $1,300,000 was affirmed on appeal.

Inside Information:

• Plaintiff had consumed a cup of Jamaican rum a half hour before the accident. While his attorney successfully argued that the hospital blood alcohol results should not be admitted in evidence, the defense was able to argue that it was obvious Mr. Isaac had been drinking alcohol.
• Fault for the crash was apportioned equally with the result being that plaintiff collects one-half of the damages assessed.

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At about 2 p.m., on March 8, 2006, Maria Perone, then 18 years old, was on her way to the local Dunkin Donuts to get coffee for her office co-workers. As she walked across Bell Boulevard in Queens, Maria was struck in the crosswalk by a slow moving left turning city bus.

The impact knocked her to the ground and an ambulance took her to a nearby hospital emergency room where she complained of severe pain in her left shoulder and side. Maria was diagnosed with a left clavicle fracture and given a sling to wear for six weeks and a prescription for Vicodin.

A day later, Maria saw her pediatrician with complaints of pain not only in her left shoulder area but also in her left hip (where she had developed a large bruise). A week later, an MRI of the left hip revealed a fracture.

Maria sued the city and on November 16, 2009, a Queens jury awarded her pain and suffering damages in the sum of $180,000 ($65,000 past - 3 1/2 years, $115,000 future - 5 years).

Now, in Perone v. City of New York (2d Dept. 2011), an appellate court has agreed with the defense contention that the jury award was excessive and ruled that the $115,000 award for future damages should be reduced by $85,000 to $30,000.

The total award now stands at $95,000 ($65,000 past, $30,000 future).

As indicated in its decision, the appellate court was influenced by the facts that:

1. the clavicle fracture was only minimally displaced (where the bone snaps and moves, so that the ends are not lined up straight) and
2. the hip fracture was nondisplaced (where the bone cracks, but does not move and maintains its proper alignment).

Maria's hip fracture was actually a nondisplaced fracture of the greater trochanter (the non-weight bearing large bony end of the femur that sticks out from the side of one's hip).

The court also noted that Maria's treatment for her injuries was minimal (sling for six weeks, minimal physical therapy, no surgery), she had no arthritis, she did not limp and her fractures had healed completely.

In arguing for an affirmance of the jury verdict, Maria's attorneys noted that:

• she experiences pain a few times a week as well as upon changes in the weather, when jogging and when wearing high heels
• her physical medicine and rehabilitation doctor (Kioomars Moosazadeh, M.D.) testified that Maria still has some atrophy and and instability in her shoulder with respect to which he said she has a guarded prognosis

In arguing (successfully) for a reduction of the jury verdict, the defense noted that:

• there was no medical testimony establishing permanence or arthritic changes
• the evidence indicated that plaintiff's injuries have not had much of an impact on her activities
• the defense doctor (orthopedic surgeon Andrew Miller, M.D.) testified that he did not detect any atrophy, irritability or crepitation of Maria's shoulder

Two of the cases cited by the court are recent and relevant.

1. In Shaperonovitch v. City of New York (2d Dept. 2008), a woman sustained fractures of her acetabulum bone in her hip. No surgery was required, the bone healed within two months and she was able to walk unassisted. The jury's $102,000 pain and suffering award ($51,000 past, $51,000 future - 31 years) was found reasonable and affirmed.
2. In Vanini v. Ramtol Service Corp. (1st Dept. 2005), a man sustained a clavicle fracture which had healed and there was no medical proof to support a claim of permanence or residual impairment. The jury awarded $10,000 for pain and sufferng (past only) and the appellate court ruled that it was fair and should not be disturbed.

Inside Information:

• Plaintiff fractured her left clavicle in the past as well -  when she was four years old.
• Plaintiff's doctor testified that there was no indication of a need for surgery, "but I cannot say in the future what will happen." "I can't say at this moment."

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It usually takes quite a bit of trauma or force to break bones in one's hip or pelvis. And when that happens, additional bones are often broken too. So it's particularly difficult to find court cases that isolate and deal with pain and suffering just for the injured hip or pelvis. But that's just what I've tried to do in this post.

Most recently, the appellate court in Denis v. City of New York (2d Dept., 9/16/08), affirmed a Kings County jury verdict for pain and suffering in the sum of $1,000,000 ($600,000 past, $400,000 future) for a 60 year old man who fell 15 feet from an unsecured ladder. He sustained a comminuted fracture (where the bone is broken into two or more pieces) of his acetabulum (the hemispheric concavity on the pelvis - see below) that articulates with the head of the femur (the thigh bone). Mr. Denis also suffered a displaced fracture of his ilium and fractures of his pubis.

Before going further, let's take a look at the anatomy of the pelvis:

And now a closer look at the anatomy of the hip:

Mr. Denis was hospitalized for 37 days, almost all of which time he was in traction with an external fixation device surgically implanted. His doctor testified at trial that without total hip replacement surgery Denis would never be able to walk without a limp.

Two significant trial court cases in 2008 dealt with hip fracture verdicts:

• Kann v. New York City Transit Authority (Supreme Court, New York County; Index # 10334/07; 7/21/08) - $525,000 pain and suffering verdict ($175,000 past, $350,000 future) for an 86 year old woman who fell and suffered an intertrochanteric fracture of her hip that was addressed by open reduction internal fixation surgery.
• Utsey v. City of New York (Supreme Court, Bronx County; Index # 28638/03; 4/21/08 verdict, 5/21/10 post-trial decision) - $2,500,000 pain and suffering verdict ($1,000,000 past, $1,500,000) future for a 77 year old woman who fell and fractured her hip. Seven years after her initial open reduction internal fixation surgery, she underwent a total hip replacement surgery. UPDATE: The trial judge issued a decison 5/21/10 refusing to reduce the damages and the case then settled 7/7/10 for 1,500,000.

Other recent appellate court cases in New York addressing hip and pelvis pain and suffering verdicts include:

Tushaj v. Elm Management Associates (2d Dept.; 2004) - $325,000 pain and suffering verdict ($200,000 past, $125,000 future) for a 54 year old man with a comminuted inter-trochanteric fracture that required open reduction internal fixation surgery. The Kings county jury had awarded plaintiff a mere $30,000 for his future pain and suffering and it took the appeals court to increase that sum. Plaintiff trial lawyers usually prefer to try cases in Brooklyn (Kings County) because it's widely thought that the jurors there are very liberal in their verdicts. Not this one!

Dooknah v. Thompson (2d Dept., 2000) - Here's another unusual case in which the appeals court found that a jury's verdict was too low. A 61 year old man was awarded $50,000 for past and future pain and suffering for his non-displaced acetabulum fracture and two pubic ramus fractures and it took the usually conservative appeals court (that governs appeals from Brooklyn, Queens, Long Island and Westchester) to increase the verdict to $200,000 ($75,000 for past pain and suffering and $125,000 for future). I would not want to suffer those injuries for $200,000 (nor would any sane person) but at least the appeals court recognized how inadequate the jury finding was.

Lopiano v. Baldwin Transport. (1st Dept., 1998) - $2,350,000 pain and suffering award for a 48 year old construction worker injured on the job when a four ton concrete catch basin pined against him. Plaintiff, who had served in Vietnam with the Marine Corps and was a very active and physical man, suffered multiple comminuted fractures of his left and right superior and inferior pubic ramus, together with a fracture adjacent to the area surrounding the foramen. Essentially, his sacrum and ilium were broken apart and thereafter failed to re-join symmetrically leaving him in lifelong persistent pain and totally disabled. The Bronx County jury returned a verdict of $750,000 past and $1,600,000 future pain and suffering but the trial judge reduced those awards to a total of $550,000. It took the stellar work of noted appeals attorney Jay Breakstone to convince the appellate court to reinstate the $2,350,000 verdict.

Here are some illustrations of the various surgical approaches to fractured hips:

These cases are good examples of how widely divergent juries in different counties can be. Jurors in Kings County are usually thought to be very generous but look at the Tushaj v. Elm Management case above. And the Appellate Division for the Second Department (hearing appeals from Long Island, Brooklyn, Queens and Westchester) is usually thought to be stingy but look what it did in the Dooknah v. Thompson case above.

So what's the lesson from all of this? Here it is: each case has to be analyzed, re-analyzed and compared against as many similar verdicts and settlements as can be found that deal with pain and suffering for the body part involved. Then, you must dig up documents, briefs and trial testimony to see what really happened in those cases, what the injuries and disabilities really were and how disabled for life the plaintiff is or how well he actually recovered. With all that information, you'll know when to hold 'em (and try the case to verdict) and when to fold 'em (and settle the case for the right number).

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