Another $1,000,000 Elbow Fracture Verdict Sustained on Appeal in New York

Posted on February 7, 2010 by John Hochfelder

Kerwin Park was a 36 year old day laborer doing construction work on a residential building in Manhattan on September 7, 2000 when a wooden plank he’d been standing on collapsed and sent him tumbling 20 feet to the unfinished basement below.

Here's what it looked like before Mr. Park fell:

 

Park was rushed to the hospital where he was diagnosed with a displaced, comminuted, intra-articular fracture of his right elbow’s olecranon (as well as a non-displaced fracture of his left wrist). 

Here's what an olecranon fracture looks like:

He required open reduction internal fixation (ORIF) surgery in which the elbow fracture fragments were pushed into place and then tension band wiring and pins were used to create compression at the elbow fracture site, like this:

Park underwent a second surgery to remove the hardware within a year after his accident. Then, he underwent 10 months of physical therapy. In the interim, he undertook nursing courses and he then pursued a new career as a certified nursing attendant taking care of elderly patients.

In the ensuing lawsuit against the premises owner, a contractor and others, Park claimed he wasn’t provided a safe place to work or proper equipment. After extensive pre-trial procedures and motions, Park was finally granted summary judgment on liability and a Manhattan jury returned a pain and suffering damages verdict in his favor in the sum of $2,300,000 ($1,500,000 past – 7 ½ years, $800,000 future – 33 years).

On the defendant’s post-trial motion, the trial judge reduced the verdict to $1,400,000 ($600,000 past, $800,000 future) and plaintiff then appealed.

Park argued on appeal that the original jury verdict of $2,300,000 should be reinstated in full while the defense argued that the trial judge’s reduction to $1,400,000 was not enough and the verdict should be reduced even further.

Last week, in Park v. City of New York, the judges of the Appellate Division, First Department agreed with the defendants and the judges reduced the future damages verdict another $400,000 so that the final pain and suffering verdict now stands at $1,000,000 ($600,000 past, $400,000 future).

The trial testimony by plaintiff and his doctors was at odds with that offered by the doctor who examined the plaintiff on behalf of the defendants. While there was no dispute as to the initial seriousness of plaintiff’s elbow fracture and the need for the significant surgery he underwent, the parties vigorously disputed the seriousness of plaintiff’s condition at trial and his prognosis:

  • Pain: plaintiff testified he has pain every day and cannot ride a bike, play basketball or lift heavy objects; defendants pointed out, though, that plaintiff missed no time from work, showers, feed and helps his patients walk (in his new job as a nursing attendant) and that he has pain only in certain positions
  • Future Surgery: plaintiff’s orthopedist claimed he’d need future elbow surgery due to post-traumatic arthritis but the defense doctor disagreed testifying that there was no evidence of arthritis and no need for more surgery
  • Wrist Injury: plaintiff claimed residual pain in his left (non-dominant) wrist but the defense argued that the wrist injury was insignificant as it was treated only with a bandage, didn’t require any surgery and plaintiff testified before trial that he had good range of motion and no pain in his wrist

In reducing the plaintiff’s verdict $400,000 more than the trial judge had already reduced it – leaving plaintiff with $1,300,000 less than the jury had awarded him – the appellate judges stated that they based their decision on four prior cases involving “a comminuted fracture to the elbow/arm, multiple surgeries, potential additional surgery and permanent pain and limitation of motion.” Only one of those cases, though, Roshwalb v. Regency Maritime Corp. (1st Dept. 1992), involved an elbow fracture ($750,000 sustained for 63 year old woman).

The other three cases cited in Park v. City of New York all involved fractures to different parts of the arm:

While there aren’t any cases that the judges failed to mention in Park v. City of New York that would likely have led them to a different conclusion, there were several prior cases that involved elbow fractures only that were much more relevant and instructive. Here they are (some of which we discussed in our prior article on elbow fracture cases):

The point in referring to the more relevant elbow fracture cases is not that the court in Park v. City of New York erroneously evaluated pain and suffering damages; rather, it’s to highlight the fact that elbow fractures are usually more significantly limiting and painful than mid-shaft humerus fractures.

The elbow involves a complex joint with three moving parts (the radius, ulna and humerus) and after elbow surgery it's typical that there will be some significant permanent loss of range of motion. The judges could and should have cited the more relevant elbow fracture cases, discussed them and enlightened all of us as to why it was proper to reduce Mr. Park’s verdict by $400,000 (after the trial judge had already reduced it by $900,000).

Inside Information:

Before trial, plaintiff had demanded $750,000 to settle against which defendants had offered $350,000.

 

 

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Humerus Fracture Pain and Suffering Verdicts and Settlements from $85,000 to $980,000

Posted on January 22, 2009 by John Hochfelder

It takes a whole lot of trauma to fracture the humerus - the long bone of the upper arm - and when it does happen there will likely be other injuries such as to the shoulder or wrist. So it's not easy to find cases that deal only with humerus fracture pain and suffering damages but we've dug up several that may be of interest and instructive.

First let's take a look at the humerus which, as you can see, is comprised of a shaft and two articular surfaces that form a part of the shoulder and elbow joints. We recently wrote about rotator cuff and other shoulder injury damage cases here and here and will in the future discuss elbow injuries.

Here's an x-ray of the humerus:

In the most recent New York appellate court case to deal solely with humerus fracture damages, Coker v. Bakkal Foods, Inc. (Appellate Division, 2nd Dept., 6/24/08), a Suffolk County jury verdict of $200,000 was upheld for pain and suffering for a 46 year old seamstress who fell and sustained a comminuted fracture of her humerus. She underwent extensive physical therapy, had three steroid injections and was unable to work for two months. She did not undergo surgery but was left with permanent limited range of motion and a prognosis that included the probability of surgery. 

When one is forced to undergo surgery, for a humerus fracture or in any other injury case, it's very likely that the jury will evaluate the pain and suffering claim higher than in non-surgical cases and that the appellate courts will uphold the higher verdict. One might say that's a bit counter intuitive because the surgery is supposed to fix the patient. But the typical reaction of the jury in surgical cases is visible wincing (especially when shown by the surgeon how and where he cut and what the hardware inside the bones really looks like). And after the wincing, the money flows.

Here's a recent humerus fracture case that involved multiple complicated surgeries - Baez v. New York City Transit Authority (Appellate Division, 1st Dept., 2005). In this case, $980,000 for pain and suffering ($600,000 past; $380,000 future) was upheld in a Bronx County case for a 56 year old home health aide who was in a bus accident and sustained a comminuted fracture of her right dominant arm. She underwent open reduction internal fixation surgery to fix the humerus fracture but, thereafter, she had to undergo a second surgery to correct a malunion of the fracture.

  • Insider Information: In this case the defendant's pre-trial offer to settle was only $25,000 against the plaintiff's settlement demand of $450,000. Hindsight is always 20/20 but it needs to be pointed out that the defendant paid $530,000 more than was necesary!

Here are some other recent New York jury verdicts involving humerus fractures:

  • Zambrano v. Abdalla (Supreme Court,Kings County; Index # 413/06; 5/21/08) - $85,000  for a 59 year old hostess who sustained a non-displaced humerus fracture and did not need surgery
  • Robinson v. 3512 Oxford Avenue Tenants Corp. (Supreme Court, Bronx County; Index # 25341/04; 2/11/08) - $700,000 pain and suffering split equally between past and future for  a 68 year old semi-retired woman who sustained a comminuted fracture of her dominant arm's humerus in which the head split into two pieces and the shaft into a third. She underwent a hemiarthroplasty - reconstructive surgery to remove fracture fragments and insert permanent hardware secured by screws

And if you think that $700,000 was too much for what the 68 year old Mrs. Robinson went through in the case just mentioned, then take a look at what she went through in the operating room and what she'll live with for the rest of her life.

Here's the hemiarthroplasty:

 

 

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