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

On March 22, 2006 Alice Silverberg was admitted to Maimonides Hospital Center in Brooklyn. Up to that point, she was an active 78 year old woman in generally good health but with a prolapsed uterus which brought her to the hospital for an elective vaginal hysterectomy.

Anamaria Guzman, M.D., attempted to anesthetize Ms. Silverberg so the operation could commence but the doctor was unable to place the endotracheal tube (ETT) in the trachea. Another anesthesiologist was called in to assist but he too was unable to intubate the patient. Three attempts were made but each time the instrument was placed into the esophagus (instead of the trachea).

Finally, Dr. Guzman was able to successfully intubate her patient. The hysterectomy then proceeded uneventfully; however, the unsuccessful attempts to intubate had already perforated the esophagus.

Post-operatively, Ms. Silverberg suffered from several unanticipated complications including:

• a pneumothorax (collapsed lung)
• empyema (an infection of the chest lining from bacteria passing through the esophagus) and
• a perforated esophagus

Here is the anatomy involved in this case:

Ms. Silverberg remained hospitalized for almost a month until she was transferred to nursing homes where she remained for over a year until she was sent home.

In her ensuing lawsuit, Silverberg v. Guzman (Supreme Court, Kings County; Index # 24076/06), Ms. Silverberg claimed that the doctors were negligent in perforating her esophagus and that they thus caused her to undergo additional surgeries and a year of confined medical treatment unable to walk or feed herself as well as permanent dementia (the infection caused her to suffer hypoxic brain damage).

On April 1, 2009, the jury found that Dr. Guzman departed from accepted medial practice (i.e., she was negligent) in failing to read notes in her patient's chart and in failing, post-operatively, to communicate to plaintiff's other doctors that medical instruments had been placed in the esophagus, thereby causing a delayed diagnosis of the esophogeal perforation for several days.

The jurors then awarded plaintiff pain and suffering damages in the sum of $4,500,000 (allocated entirely to past pain and suffering with nothing at all awarded for any future period).

The defendant appealed arguing:

1. there was no proof connecting the delayed diagnosis to plaintiff's damages and
2. alternatively, that the pain and suffering award was excessive.

In Semel v. Guzman (2d Dept. 2011), the appellate court has now upheld the liability finding while ordering a reduction in damages from $4,500,000 to $2,000,000 (all for past pain and suffering).

Here are additional injury details:

• Three surgeries after the hysterectomy: to repair the esophogeal perforation, to place an esophogeal stent and to remove the stent.
• During most of the year in nursing homes, plaintiff was tube-fed, wheelchair-bound and unable to walk or dress herself.
• As of the trial date, plaintiff was fully ambulatory and competent to testify but contended she could no longer manage her financial affairs, recognize family members or travel independently.

Inside Information:

• The appellate judges did not discuss the main damages contention advanced by the defendant - that plaintiff failed to prove precisely which harms were caused by the delayed diagnosis as opposed to the perforated esophagus.
• Plaintiff's attorney asked the jury to award $5,000,000 for past pain and suffering and $2,000,000 for the future.
• In view of her near complete recovery (plaintiff had resumed many of her activities of daily living, including caring for herself, food shopping and cleaning her home), plaintiff was denied any recovery at all for future pain and suffering damages.
• Ms. Silverberg died of unrelated causes in February 2011 and the case name was changed to reflect the substitution of her executors as plaintiffs.

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Destiny Avila was born at Harlem Hospital on January 5, 2001. It was a difficult delivery - Destiny was 10 pounds and her clavicle had to be forcibly fractured to get her out. Then, she was intubated and sent to the neonatal ICU for two days. Apparently all was well and baby and mother were discharged on January 9, 2001 (four days after birth).

Here is where Destiny Avila's saga began:

By the time she was three years old, Destiny's mother noticed she had developmental delays. An evaluation indicated that she had a developmental age of only 10 months. Her mother promptly started a lawsuit in 2004 against the hospital and its doctors claiming medical errors during delivery had caused brain damage to her baby.

After a three week trial in Manhattan Supreme Court, on October 18, 2007 the jury rendered an $8,000,000 verdict in plaintiff’s favor.

In Avila v. City of New York, an appeals court has now set aside the verdict and ordered a new trial because the trial judge erroneously dismissed a juror and seated an alternate after deliberations had begun.

Plaintiff’s medical experts had testified that the doctors should have performed a caesarean section because of the baby’s large size and indications that she was not receiving enough oxygen. They felt that Destiny had sustained hypoxic ischemic encephalopathy (permanent brain injury due to a lack of oxygen or adequate blood flow to the brain) and they concluded she has mild cerebral palsy as a result.

The defendants’ medical experts could not have disagreed more. The said a vaginal delivery was appropriate and that Destiny suffered no significant injuries other than the clavicle fracture and that injury was no one’s fault. Most importantly, they were adamant that Destiny was not suffering from cerebral palsy. Instead, they strongly urged that any medical or developmental problems plaintiff may have had were minimal and/or within the spectrum of a previously diagnosed autism disorder.

The defense urged that the only injury Destiny sustained at birth was a fractured clavicle:

In awarding plaintiff $8,000,000 ($500,000 past – 6 ½ years, $7,500,000 future – 74 years), the jury clearly rejected the defense claims that there was no medical negligence and that the injuries were minimal. While the defense argued that there was no negligence, they did concede that Destiny was 50% globally delayed with speech and language deficits.

On appeal, the defense claimed that:

1. plaintiff should not have been allowed to present expert testimony that she had cerebral palsy since this was a brand new never before disclosed theory,
2. the trial judge committed an error requiring reversal when, without meaningful inquiry, she seated an alternate juror without defense counsel’s consent after discharging a deliberating juror who claimed there was intimidation inside the jury room, and
3. if the verdict on liability should be upheld the amount of damages was grossly excessive and should be reduced

The appeals judges agreed with the defense that the verdict must be reversed because of the juror dismissal and seating of an alternate without consent and they vacated the verdict (thus rendering the other two issues moot).

Here are the details as to the drama inside the jury room. After deliberations began, the lone female juror, “Juror Number 3,” ran out of the jury room and said:

“I’m not going in there again. I am not going to – I’m starting to physically fight and I’m not going to be in the room.”

Things were pretty crazy inside the jury room:

After speaking with the entire panel, the judge sent them back to deliberate further. The day ended with the jury having reached a partial (undisclosed) verdict. The next morning, Juror Number 3 delivered a note to the judge complaining that another juror had been intimidating and threatening and that he physically threatened another juror and yet other jurors had to intervene. Juror Number 3 wrote that she was not comfortable she could make a rational decision in the case.

The judge then dismissed Juror Number 3, seated an alternate juror and a full verdict was reached after four more hours of deliberation.

Alternate jurors are chosen during jury selection so that if, before jury deliberations begin, a regular juror dies or becomes ill or for any other reason is unable to perform his duty, an alternate will be available and seated. There is no provision in the statute, CPLR 4106, that contemplates seating an alternate after jury deliberations begin. That's because citizens in civil actions have a constitutionally protected right to a jury of six. Only if the attorneys all consent may an alternate be allowed to deliberate after deliberations begin.

Defendants in this case, though, did not consent. Had the judge conducted an inquiry into Juror Number 3’s concerns before discharging her then defense counsel may have consented but the judge’s dismissal of Juror Number 3 without meaningful inquiry was held to be improper and therefore seating of the alternate was also improper.

The question of whether $8,000,000 in damages was excessive was briefed fully by the parties on appeal but not resolved because it became moot. Should plaintiff again prevail on liability, it’s unlikely that such a sum would be sustained.

Here are some of the recent appellate decisions that sustained pain and suffering awards for brain damage in the multi-million dollar range (and plaintiff’s injuries in Avila v. City of New York do not appear to be nearly as severe as those in any of these cases):

• Lopez v. NYCHHC (1st Dept. 2000)- $3,100,000 for 30 years of future pain and suffering where infant suffered cerebral palsy, spastic quadriplegia and inability to speak, sit or walk
• Reed v. City of New York (1st Dept. 2003) - $2,500,000 for 30 years of future pain and suffering for multiple skull fractures and very substantial brain damage leading to memory loss, a permanent inability to lie down, total loss of smell, severe orthopedic disabilities and pain, depression and suicidal ideation 
• Paek v. City of New York (1st Dept. 2006) - $3,000,000 for 40 years of future pain and suffering for a 35 year old woman with permanent significant cognitive deficits affecting her memory, attention span and concentration as well as severe depression and constant pain from persistent headaches

Inside Information:

• Plaintiff did not seek an award of future damages for medical care. While not dispositive of whether there will be future pain and suffering, where there are no likely future medical costs the claim for future pain and suffering is often discounted by jurors. Not so in this case so far but with another jury that could be a problem for the plaintiff’s future pain and suffering claim.
• Plaintiff, age 6 at trial, had no physical disabilities, a normal gait and was described by her mother as a happy child who likes to dance and play.
• Plaintiff claimed that Destiny will never have functional communication, be able to live independently or hold a job.
• With a new trial, Destiny will have aged a few more years and the new jury will be better able to estimate her future damages, should plaintiff again prevail on liability.
   

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