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

On October 3, 1996, Edith Schaffer, then 67 years old, voluntarily admitted herself to a small psychiatric hospital in Ossining, New York, for an episode of depression and anxiety. The next day, she suffered the first of a series of seizures and was sent to a nearby community hospital for a neurological consult and tests.

Mrs. Schaffer's tragic odyssey began here:

Two days later, due to an undiagnosed critically low serum sodium level (hyponatremia), Mrs. Schaffer lapsed into a coma where she remained until her death on June 6, 2001.

Her husband sued the hospitals and various doctors and on November 6, 2008 a Westchester County jury found that a by-then deceased doctor at the community hospital was fully liable for Mrs. Schaffer’s injuries and death in that he failed to appreciate the significance of her condition which was easily reversible.

We discussed this case, Schaffer v. Stony Lodge Hospital, here, back in January 2009. The trial judge denied the defendant’s motion to set aside the verdict. Now, a decision has been issued on the appeal and the judges drastically reduced the pain and suffering award from $5,000,000 to $2,500,000.

The appellate court decision in Schaffer v. Batheja (the name of case after some defendants were dismissed) does not mention any of the facts upon which the judges relied in reducing the pain and suffering award except for stating that “Mrs. Schaffer was only sporadically aware of her condition” during the 4 ½ years she lay in a coma.

In cases where a plaintiff is comatose or in a vegetative state, her level of consciousness, if any, will be the key to whether and the extent to which a pain and suffering award will be upheld.

Under the leading case of McDougald v. Garber (Court of Appeals,1989), to support a pain and suffering award plaintiff had to prove that Mrs. Schaffer had “some level of awareness.”

We have dug up the underlying facts and arguments as to consciousness that were brought out at trial. Each side relied upon different aspects of the following evidence:

• the testimony of doctors and nurses who treated Mrs. Schaffer over the years
• the testimony of family members who came to visit
• the opinions of medical experts
• notations in the voluminous medical records

Plaintiff argued that Mrs. Schaffer was well aware of her condition and experienced pain in view of evidence that she:

• abducted her shoulder and flexed her upper extremities in response to nail bed pressure
• opened her eyes on occasion and followed people moving in her room with her eyes
• cried and tears came to her eyes often when her family came to visit
• sometimes moved her head on command

The defense argued that there was insufficient proof that Mrs. Schaffer had any level of awareness from the time she lapsed into a coma until her death, based on evidence that she:

• was comatose at all times
• had no ability to communicate or consciously sense any pain
• reacted to painful stimuli only reflexively
• was in a persistent vegetative state in which eye openings can occur when one is not at all awake

As to the amount of the pain and suffering verdict, the defense argued, successfully, that $5,000,000 was unreasonably excessive and that there should be a drastic reduction. Both sides cited numerous cases to support either a reduction of the award or its affirmance; however, the appellate judges cited none.

Here are the main relevant cases, all except one involving pre-death pain and suffering:

• Ramos v. Shah (2nd Dept. 2002) - $450,000 for several days in coma before death from cardiac arrest due to medical malpractice
• Maracle v. Curcio (4th Dept. 2005) - $125,000 affirmed for 40 months of pain and suffering after fall left woman in vegetative state (she never communicated any indication of pain before death)
• Weldon v. Beal (2nd Dept. 2000) - $5,000,000 for 26 year old woman with severe brain damage from medical malpractice in semi-comatose state for 12 years [not a death case - $2,000,000 past - 12 years, $3,000,000 future - 15 years]
• Jump v. Facelle (2nd Dept. 2002) - $1,300,000 upheld for eight months of pre-death pain and suffering, including persistent abdominal infection, several surgeries and permanent colostomy and bed sores.
• Walsh v. Staten Island Obstetrics & Gynecology Associates, P.C. (2nd Dept. 1993) - $650,000 affirmed for infant in vegetative state for eight years before death due to medical malpractice

Mrs. Schaffer’s husband, Paul Schaffer, was awarded $3,000,000 by the jury for his loss of services claim meant to compensate him for his economic loss (i.e., the monetary value of his wife's services as a homemaker) and his loss of companionship or consortium.

The roles of women in the home and the workforce have changed in many ways over the years.

The law recognizes that physically uninjured spouses may suffer losses when their injured husbands or wives) can no longer assist with tasks in the home or provide the love and comfort previously enjoyed. When these factors are present, judges instruct jurors (PJI 2-315 and PJI 2-316) that they should render monetary verdicts in favor of the uninjured spouse.

The appellate court reduced Mr. Schaffer's $3,000,000 jury award to $500,000 simply stating that there was “limited proof as to the value of the services rendered" by Mrs. Schaffer to her husband.

Our review of the underlying facts indicates that the appellate judges were influenced by the fact that plaintiff offered no evidence as to the value of his late wife’s homemaker services loss and simply argued that his $3,000,000 award should be upheld in full in light of a 40 year marriage and his dutiful daily visits until his wife’s death. The defense argued persuasively that Mr. Schaffer’s award should be reduced significantly in view of evidence that the marriage had long been strained with no sexual relations for the 10 year period before the coma.

Inside Information:

• Nurain Batheja, M.D. the internist at Phelps Hospital against whom the jury assessed all of the liability, died in 1997, less than a year after Mrs. Schaffer lapsed into a coma. He was never deposed in the ensuing lawsuit.
• Before trial, a $1,750,000 settlement was reached with defendants Phelps Hospital and one of its doctors and plaintiff dropped his claims against Stony Lodge and all other defendants except Dr. Batheja. Under New York’s General Obligations Law Section 15-108, therefore, the $3,000,000 appellate award will be reduced by the $1,750,000 pre-trial settlement to $1,250,000.
• The appeals court also upheld $557,485 in medical expenses but there are Medicare and Medicaid liens related thereto

• Email This
• Print
• Comments
• Trackbacks
• Share Link

It was a hot summer day – a great one to be off the city streets and in a cool swimming pool. So, on July 21, 1995, Jeremy Williams, an 18 year old high school senior, went to Betsy Head Pool in Brooklyn. Part of the New York City Parks department system, the pool is huge – 300 feet long and 165 feet wide, holding up to 1,000 swimmers.

Here is the Betsy Head Pool:

At about 6 p.m., lifeguards were alerted to an emergency, a swimmer in trouble. They immediately jumped in and in less than 30 seconds found Jeremy submerged at the bottom 4 ½ feet below the surface. He appeared to be unconscious and not breathing. After frantic mouth-to-mouth resuscitation, Jeremy was rushed by ambulance to the hospital. He was unconscious but had a heartbeat. He was placed on life support but died there from respiratory failure 11 days later.

It was later determined that Jeremy drowned because while in the pool he had an epileptic seizure. He’d begun to have seizures two years earlier in which he’d stare, shake and fall to the floor with his whole body shaking violently. These grand mal seizures would usually last a minute or so. Jeremy was prescribed anti-convulsant drugs but hospital tests showed clearly that he hadn’t taken his medication on that fateful day before going swimming.

Jeremy’s mother sued the city claiming that lifeguards were negligent and should have observed her son in distress in time to rescue him. At trial in 2006, there was expert medical testimony that Jeremy would have been afloat for at least a minute in the throes of a convulsive episode consisting of violent shaking of his arms and legs before he finally sank to the bottom of the pool.

A grand mal seizure often begins with a cry and loss of consciousness, then stiffening and jerking of limbs, before stopping, like this:

The city contended that its lifeguards acted properly, if not heroically, and that in any event, it was Jeremy’s failure to take his medication that should be deemed the sole cause of his drowning.

The jury found that the city was 25% at fault with Jeremy himself bearing the lion’s share of responsibility, 75%, due to his failure to take his anti-seizure medicine.

Mrs. Williams was awarded $23,000 for her economic damages (the amount Jeremy would have contributed to household expenses but for his death) but when it came to Jeremy’s pain and suffering the jury declined to award anything at all. Zero.

Both sides appealed. The city claimed that (a) its 25% share of liability was too high and it should be deemed completely free of any fault and (b) an award of zero for pain and suffering was proper  because Jeremy was comatose and unaware of his condition. Plaintiff claimed that (a) the failure to award damages for pain and suffering was against the weight of the evidence and (b) the jury should not have assessed Jeremy with any portion of fault.

In Williams v. City of New York (2nd Dept. 2010), the appellate court judges agreed with the plaintiff’s contention that the jury was wrong to award no pain and suffering damages . The judges concluded that Jeremy Williams had some awareness during the 11 days before he died based on proof that Jeremy:

• squeezed a nurses’ hand upon request,
• mouthed words,
• opened his eyes spontaneously, and
• responded to tactile and painful stimuli.

These specific findings of cognition, the court held, meet the test set forth in the leading case of McDougald v. Garber (1989), where New York’s highest court ruled that pain and suffering damages may be awarded only when it’s been demonstrated that an injured person has “some level of awareness” regarding his condition or pain. Therefore, the court in Williams v. City of New York directed that pre-death pain and suffering damages should have been awarded and a new trial must now held to determine the amount.

I expect that the city will vigorously contest the amount of damages and seek to convince the new jury that only a minimal amount should be awarded whereas plaintiff will seek millions. Whatever sum the new jury awards will be reduced by 75% because the first jury’s apportionment of liability 75% to Jeremy and 25% to the city has been affirmed on appeal.

We will follow this case closely and should the new verdict be challenged by either party as too little or too much, the following decisions will likely be relied upon by the trial judge or a new appellate bench:

• Johnson v. Jacobowitz (2nd Dept. 2009) – No damages for a 70 year old’s pre-death pain and suffering in a medical malpractice case where death occurred five days after surgery from which the decedent never woke up.
• Maracle v. Curcio (4th Dept. 2005) - $125,000 for pain and suffering where a woman fell down stairs and thereafter did not communicate any indication of pain. Death resulted 40 days later during which time the decedent was in a persistent vegetative state but had some level of awareness.
• Ramos v. Shah (2nd Dept. 2002) - $450,000 (reduced from $900,000) for the estate of a two year old in a medical malpractice case where the infant’s dehydration was untreated by a doctor, he went into hypovolemic shock the next day, suffered a heart attack and lapsed into a coma before dying 10 days later. An expert testified as to the boy’s pain from dehydration and his father testified as to his son’s complaints of pain.
• Weldon v. Beal (2nd Dept. 2000) - $2,000,000 for a 25 year old woman’s 12 years of pain and suffering after medical malpractice caused severe brain damage and left her in a near-comatose state. This was not a death case.

Undoubtedly, the pain and suffering award in Williams v. City of New York will also be affected by the outcome of the pending appeal in Schaffer v. Stony Lodge Hospital, a medical malpractice case we discussed, here. A Westchester County jury awarded the estate of Edith Schaffer $5,000,000 for her pain and suffering while in a coma for 4 ½ years before she died. The defendant has appealed arguing that the verdict is utterly excessive and if not set aside it should be drastically reduced.

We will, of course, report on the outcome of Schaffer v. Stony Lodge Hospital just as soon as it is decided by the appellate court. And we will see how a new jury assesses damages in the new trial in Williams v. City of New York.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

With about 40,000 officers, the New York City Police Department is the largest police force in the United States. Serving more than 8 million people, its mission is to enforce the laws, preserve the peace, reduce fear and provide for a safe environment. Day in and day out, the officers put their lives on the line and they’ve long been known as “The Finest.”

Violent crimes are of course perpetrated notwithstanding superb police protection and no one expects a police force to guarantee the absence of criminal violence.

On several occasions, though, individual citizens who have suffered serious injuries have sued the city claiming that there was a negligent failure to provide police protection that facilitated a violent crime. Most of those cases are dismissed.

On July 20, 1996, at her apartment building in the Bronx, Carmen Valdez was shot three times at point blank range – twice in the face, once in the arm. Felix Perez, her ex-boyfriend, against whom she had an outstanding order of protection because he had harassed and assaulted her before, then shot and killed himself.

Carmen lived after a month in a coma but with horrific injuries:

• obliterated mouth and jaw requiring several reconstructive surgeries
• inability to eat or talk for a year
• permanent pain
• memory loss
• facial spasms
• post-traumatic stress disorder

Carmen, then 30 years old, sued and in Valdez v. City of New York claimed that the NYPD had a special duty to protect her from Perez. She argued that her case was viable because she relied upon a promise of protection made to her specifically. At trial, she testified that:

• the day before she was shot Perez had called and threatened to kill her
• she then left her apartment, called the police and was told to return home because the officers would immediately go out and arrest Perez
• she returned home
• the next day she left her apartment to take the garbage out when Perez grabbed her, dragged her back inside and then she was shot by Perez

The city denied ever receiving a call from Valdez advising that she'd received a death threat and of course denied giving her any advice or assurances as to what she should do or how they would protect her by arresting Perez.

On March 28, 2006, after a two week trial, a jury found that Carmen was telling the truth. They then ruled that the city and Perez were equally liable and they awarded pain and suffering damages in the sum of $8,000,000 ($3,000,000 past – 10 years, $5,000,000 future – 40 years).

Carmen’s twin five year old boys were with her when she was shot. They were awarded $750,000 each for their emotional and psychological pain and suffering. With medical expenses added, the total verdict was nearly $10,000,000 (with interest, the judgment exceeded $11,000,000).

In a post-trial motion, the city asked the trial judge to set aside the verdict on the basis that the police had no special duty to protect Valdez. Even if, as Valdez testified, the police had known about Perez’s prior threat to kill her, there could be no liability on the part of the police because Valdez could not show she justifiably relied upon any promise to protect her made by a police officer. Alternatively, the city argued that the damages awards were excessive and should be reduced. In a thoughtful opinion, Justice Lucy Billings denied the city’s motion in all respects.

The city appealed. This week, in Valdez v. City of New York (1st Dept. 2010), the entire judgment was vacated by the appellate judges and the case dismissed.

The key to the appellate court’s new ruling appears to be its conclusion that, even assuming the truth of plaintiff’s claim that she called and was told by an officer to return home, she failed to show that she justifiably relied upon the alleged promise of police protection and an immediate arrest of Perez. The judges noted that in the 24 hours after her alleged call to the police, plaintiff did not call back to find out if Perez had been arrested (“because I thought [the police officer] would be out there in the street looking for Felix”). Therefore, the court concluded, plaintiff knew that the police needed time to find and arrest Perez and thus there was no demonstration of any reliance at all, let alone “justifiable” reliance, on the officer’s alleged assurance.

Valdez v. City of New York will now proceed to a final resolution by New York’s highest court, the Court of Appeals. The 3 to 2 split among the five judges on the appellate panel gives the plaintiff a right to this final appeal. With more than $11,000,000 now at stake, plaintiff will certainly exercise that right. We will report on the ultimate resolution by the high court. UPDATE: On October 18, 2011, the Court of Appeals, in a divided decision, affirmed the dismissal of this case.

Inside Information:

• The jury found the city was not only negligent but also reckless. Under CPLR 1601, that means the city is liable for the entire damage award, not just its 50% share. If the Court of Appeals reinstates the verdict, it may also address this issue too as the city bitterly contended that there was no evidence of recklessness.
• The $8,000,000 pain and suffering award was among the highest ever in New York. The appellate court did not rule on the city’s claim that it was excessive but that issue, along with the propriety of the awards to the children, will need to be resolved if the Court of Appeals reverses the dismissal.
• There are four prior cases that the Court of Appeals has ruled on with issues similar to those in Valdez v. City of New York: Dinardo v. City of New York (2009), McLean v. City of New York (2009), Cuffy v. City of New York (1987) and Sorichetti v. City of New York (1985) (the only one of which allowed the claims to stand). The parties in Valdez v. City of New York each interpreted differently the application of these four cases, in particular under what facts and circumstances a special relationship may be found and/or justifiable reliance is needed to hold the city liable for injuries caused by a criminal’s violent acts or the failure of a governmental agency to do its job. The current Court of Appeals will now have the final word.
   

• Email This
• Print
• Comments (3)
• Trackbacks
• Share Link

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

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

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

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

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

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

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

Insider Information:

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

UPDATE: As we predicted, on September 14, 2010, in Schaffer v. Batheja (2d Dept. 2010), the appellate court drastically reduced the pre-death pain and suffering award to $2,500,000. Additionally, the court reduced Mr. Schaffer's jury award to $500,000. The decision is discussed by us here.

• Email This
• Print
• Comments
• Trackbacks
• Share Link