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

It’s not an uncommon situation in the ever-uncertain world of jury deliberations in personal injury and medical malpractice cases in New York and nationwide. After years of litigation, months of trial preparation and weeks of trial testimony, the jury is deliberating and each side again assesses its strengths and weaknesses. A settlement is finally discussed and appears to have been reached. The end? Usually, but not in one medical malpractice case that started in 1996 with surgery in Brooklyn and ended this week with an amazing appellate court decision.

On June 5, 1996, a 32 year old college math professor underwent a lengthy surgery to repair chronic instability in his left knee. Immediately following surgery, he felt severe pain in his right leg which was swollen and deformed. Turns out, he had deep venous thrombosis (DVT) in three veins in his right calf and was ultimately diagnosed with tibial and peroneal nerve damage and RSD resulting in permanent intense, burning pain in his right leg requiring lifelong narcotic pain medication.

The left leg (the one operated on) healed well; however, as to his right leg (the one not operated on and with respect to which he never before had any problems) Mahmoud Diarassouba sued his orthopedic surgeon and his two anesthesiologists claiming that their failure to reposition his right leg during the lengthy surgery was a departure from good and accepted medical practice that caused his right leg injuries.

These are the types of support stirrups used in knee surgeries:

Prof. Diarassouba won his case in 2003 when the jury found the doctors liable for $1,500,000 in pain and suffering damages ($500,000 past – 7 years, $1,000,000 future – 37 years). Here is a copy of the verdict sheet with the jury’s findings.

The defendants appealed the verdict against them on several grounds but mainly because certain evidence was improperly heard by the jury and other evidence was improperly held from them. The appellate court agreed, issuing a decision setting aside the verdict and directing a new trial.

The new trial was held in 2007. When the jury was deliberating a verdict, the parties appeared to have reached a settlement. Plaintiff’s attorney told the defendants’ attorney that plaintiff would accept defendants’ $150,000 offer and plaintiff’s attorney then told the court clerk who found and told the judge. At that time, though, the judge just received a note from the jury advising that they had reached a verdict!

Plaintiff’s attorney asked the judge to memorialize the settlement by putting it on the record – i.e., by stating the details in open court, having them transcribed by the court reporter and having defense counsel and the plaintiff himself state that they are in accord with and agree to the terms. The judge refused and told the plaintiff’s attorney that he would first bring in the jury and have its verdict read after which, the judge said, the parties would be free to do what they agreed to.

The jury was "out" - still in the jury room - when plaintiff's attorney advised the judge of a settlement:

The jury came in. The verdict was announced: the doctors were again found liable for pain and suffering damages, this time in the sum of $1,450,000 ($800,000 past – 11 ½ years, $650,000 future – 30 years).

This was a stunning development. Clearly, plaintiff had anticipated a defense verdict and had been eager to settle for a mere $150,000. Just as clearly, the jury found the defendants at fault and they assessed damages at 10 times the purported settlement figure. So: had the case already been settled for $150,000 or would the $1,450,000 verdict stand? Those were the questions in the second appeal in this case, a decision on which was issued this week holding that there was no legally enforceable settlement and the verdict stands.

At first glance, it looks like plaintiff was seeking to wiggle out of a binding agreement that he wished he hadn’t made since the verdict was so much more favorable. On close examination, though, the court’s decision makes sense and is fair. Before the verdict was announced, defense counsel had not acknowledged that a settlement had been reached. My reading is that the defendants were trying to have it both ways – hoping the verdict would exonerate them but if it didn’t and the verdict was more than $150,000 then defense counsel could claim (as he ultimately did) that a settlement had been reached for only $150,000.

Settlements during trial are common but to make them binding in the absence of a signed written agreement the law (CPLR 2104) requires the attorneys to place the settlement agreement on the record – typically meaning that they announce the details of the settlement in open court, before the judge, with the court reporter transcribing the statements and the settling parties themselves stating that they understand the terms of the settlement and agree to them. None of that was done in this case, in part because the judge wanted the verdict announced first and in part because defense counsel did not state that he or his clients acknowledged and agreed to the $150,000 proposal (that is, until after the verdict was read).

Inside Information:

• In the first trial, liability was apportioned 60% to the orthopedic surgeon and 20% each to the anesthesiologists but in the second trial the surgeon’s share was 30% and the shares of the other two were 35% each.
• Before the second trial, the surgeon settled with the plaintiff for $390,000.
• Since the surgeon was 30% at fault in the second trial, plaintiff’s total verdict of $1,450,000 was reduced by 30% as against the other two defendants and the plaintiff is entitled to only $1,015,000 from them. Since plaintiff already has $390,000 from the surgeon, his total recovery here is $1,405,000.

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On December 26, 2003, a 37 year old nurse was involved in a car accident at an intersection in the Bronx when a Salvation Army van slammed into her car causing a herniated disc in her neck and nerve damage to her right arm.

It wasn't this van but probably one similar:

The van driver, Anita Peterson, claimed she had a green light and that the accident was caused by the other driver, Tara Kelly; however, on August 1, 2008, in Kelly v. Peterson (Supreme Court, Bronx County; Index #18607/04), a jury found that the accident was caused wholly by Ms. Peterson. A few months after that finding, on November 12, 2008 a new jury was empaneled to determine the amount of damages to which Ms. Kelly was entitled.

At that point, it was clear to all that Ms. Kelly would be awarded a large sum for her pain and suffering. As a result of the crash, she had undergone surgery – an anterior discectomy at C5-6 and a fusion of the two vertebrae at that level. The fusion involved the placement of a bone graft in the spine where the disc had been and the fixing of a plate with screws into the bone to prevent the bone graft from moving out of place.

Additionally, objective medical tests showed that plaintiff had suffered denervation in her dominant right arm leaving her with a permanent 30% loss of use.

Courtroom observers say that this case could have been settled for about $750,000 before the verdict in the damages trial but that the defense hadn't offered more than $500,000 to settle. So, the damages trial went forward and in the end the jury awarded $7,000,000: $5,000,000 for pain and suffering ($2,000,000 past – 5 years, $3,000,000 future – 48 years) plus $2,000,000 for future medical expenses.

The defendants then asked the trial judge to set the entire verdict aside as excessive and order a new trial on damages.  In her post-trial decision dated October 5, 2009, the Hon. Sallie Manzanet-Daniels (now an appellate court judge) declined to disturb the jury’s pain and suffering awards; the only modification she made was a reduction of the future medical expense recovery from $2,000,000 to $285,000 which was the amount plaintiff’s counsel had proven and asked for in his summation.

It's fair to say that the Salvation Army had the bell rung against it when the jury returned its verdict.

Court records now indicate that this case has just settled but the amount is confidential. Facing a verdict in excess of $5,000,000, with interest mounting at the rate of 9% per year since the date of the liability trial verdict (as provided for in New York's CPLR 5002), the defendants were no doubt finally anxious to settle and they probably paid less than the verdict amount but far more than the amount for which this case could have been settled before trial.

In my opinion, the $5,000,000 pain and suffering verdict in this case would have been reduced by the appellate court based on its review and analysis of prior cases. Here are some of the prior appellate court decisions dealing with fusion surgery pain and suffering, any one of which might have been relied upon or cited as support for a finding that the $5,000,000 award to Ms. Kelly was excessive.

Sanango v. 200 East 16th Street Housing Corp. (2004)- $2,452,000 pain and suffering verdict ($1,000,000 past – 6 years, $1,452,000 future – 29 years) for a construction worker who fell 15 feet from a ladder and sustained multiple fractures of his cervical and thoracic spine, a concussion, a torn rotator cuff in his shoulder and nerve damage to his eyes. He underwent spinal fusion surgery and at trial his neck was still in a brace and he was still suffering from significant limitations of mobility and continued pain. His poor prognosis was further complicated by the separation of a pedicle screw that presented the risk of further surgery due to migration of the fragment. Finally, because of the fragment’s location, surgery to repair the torn rotator cuff was contraindicated.

Diaz v. West 197th Street Realty Corp. (2002) - $1,350,000 pain and suffering award for a 29 year old mail carrier in a slip and fall accident who sustained a fractured transverse process at L-3 and a herniated disc at L5-S1 requiring posterior spinal fusion with iliac bone graft. She claimed she was totally disabled, could not walk without limping and required chronic pain management. The jury’s verdict for pain and suffering was $8,250,000 ($5,500,000 past – 3 ½ years, $2,750,000 future); however, on appeal those figures were found to be grossly disproportionate to awards in factually analogous cases.

Lewis v. Port Authority of New York and New Jersey (2004) - $1,500,000 pain and suffering award ($500,000 past – 6 ½ years, $1,000,000 future – 42 years) for a 31 year old plaintiff in a motor vehicle accident who sustained injuries to her back, hip and legs requiring fusion surgery to repair her sacroiliac joint. She also suffered from post-traumatic stress syndrome and depression (confirmed by the defense neuropsychiatrist). The jury had awarded $4,500,000 for pain and suffering but the appellate judges ruled that to be disproportionate (citing the Diaz case).

Inside Information:

• Ms. Kelly appears to be what I like to call a trooper – she returned to work as an intensive care unit nurse as soon as she could both after the accident and after her surgery three years later and she didn’t miss much time from her job. Juries tend to love that type of can-do attitude and, conversely, hate those they conclude are malingerers.
• The defense claimed that plaintiff’s injuries were not severe and in closing arguments to the jury suggested that $150,000 would be a fair pain and suffering award (plaintiff’s attorney asked for $5,000,000). Shortly after the jury began deliberating, the judge received a note asking whether there was a maximum they could award. Half an hour later, they returned their $7,000,000 verdict ($5,000,000 for pain and suffering plus $2,000,000 for future medical expenses).
• The jurors were treated to a blistering cross-examination of defense neurologist Ramon Valderrama, M.D. who had examined Ms. Kelly for five minutes two and a half years before trial. He testified that plaintiff’s neck range of motion was entirely normal, even though he had not conducted any such tests and admitted on cross-examination that he saw Ms. Kelly only four months after her fusion surgery and that normal range of motion simply does not return so early.
• Perhaps the most stunning moment in the trial occurred when one of New York’s top trial attorneys, Michael Jaffe of Pazer, Epstein & Jaffe, P.C. (plaintiff was also represented by the preeminent Jeffrey S. Stillman of Stillman & Stillman, P.C.), confronted the defense doctor with a report he wrote in an unrelated case, involving different injuries, in which his findings in 12 paragraphs of the report were identical, word for word, to the report he prepared for Ms. Kelly in this case. It was clear to even the casual courtroom observer that Dr. Valderrama was decimated by Mr. Jaffe, this was a turning point in the trial and that defense counsel was overmatched by plaintiff's attorneys.

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On April 13, 2003, Sergeant Michael Lauro of the New York City Police Department was performing a station-house security check at his precinct when he slipped and fell in a puddle of water.

After minor treatment, he was diagnosed with a rib fracture (which healed) and back pain. Unfortunately, the back pain never got better, MRIs revealed two herniated discs in his back pressing on spinal nerves and, despite years of treatment thereafter, Lauro could never return to work and remains disabled to this day.

On May 18, 2007, a Queens County jury returned a verdict in the 49 year old plaintiff’s favor finding that his injuries were due to the city’s negligence and awarding him pain and suffering damages in the sum of $810,000 ($160,000 past, $650,000 future). Last week, that verdict was upheld on appeal in Lauro v. City of New York.

The pain and suffering verdict is significant because plaintiff never underwent surgery (his doctor testified he’d require it but that the outcome is totally uncertain). Juries and appellate courts frequently devalue back and neck pain and suffering claims when there’s been no surgical repair.

• In many car accident cases in New York, this type of back injury claim is dismissed without a trial due to the restrictions of Insurance Law Section 5102 which mandates that plaintiffs’ injuries meet a narrow statutory threshold. My colleague, Eric Turkewitz, discusses plaintiffs' frustrations with this law over at New York Personal Injury Lawyer, here.

Mr. Lauro, though, had several factors in his favor which influenced the jury and the appellate judges:

• multiple MRIs over the years after the fall that showed the protruding discs pressing upon spinal nerves (causing excruciating pain)
• markedly decreased range of motion – forward flexion was severely limited to 20 degrees;
• continued prescriptive use of narcotic medication (Vicodin) for credible complaints of unremitting pain resulted in dependence and side effects (including memory loss and lethargy);
• inability to return to work or engage in activities such as camping, biking, swimming or bowling

Inside Information:

• The defense case was impaired severely because of its failure to produce at trial its doctor who had examined plaintiff two years earlier and was expected to testify. Defense counsel claimed the doctor was suddenly unavailable but the trial judge agreed with plaintiff’s counsel that a “missing witness” charge should be made whereby the jury was told it could make a negative inference due to the doctor’s absence. In fact, the defense doctor’s report of his examination supported plaintiff’s injury claims and that, plaintiff’s lawyer urged, was clearly the reason for the doctor’s curious absence.
• Plaintiff had a motorcycle accident in 1989 in which he injured his neck and the defense urged that plaintiff’s current injuries were all related to the prior accident. Plaintiff claimed the prior injuries were minor and the jury agreed apportioning only 2% of the damages to the prior accident and 98% to the current one.
• Plaintiff’s claim that he was permanently disabled from work was credited by the jury which awarded him $1,400,000 lost earnings damages. The trial judge, though, invoked the doctrine of “collateral estoppel” and set aside that award because, when Lauro applied for disability retirement from the city after the current accident, the city’s medical board ruled that while indeed Lauro is disabled the disability resulted from the 1989 accident. Plaintiff successfully urged on appeal that his lost earnings verdict should be reinstated. His eminent appellate counsel, Arnold E. DiJoseph, noting that plaintiff worked for 14 years straight after the 1989 accident and it was only after the 2003 accident that he never returned to work, pointed out that the city stood to gain a great deal by simply shifting blame for plaintiff’s disability to the 1989 incident.

There was only one case cited by the appellate court in Lauro v. City of New York to substantiate the reasonableness of the pain and suffering verdict. In that case, Wimbish v. New York City Transit Authority (2003), an $800,000 pain and suffering verdict ($300,000 past – 8 years, $500,000 future – 30 years) was upheld for a woman in a bus accident who sustained three large herniated discs in her neck. She underwent no surgery but remained in excruciating pain and would require future surgery.

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Nine years after the fact and 2 1/2 years after the jury verdict, all of the parties in a medical malpractice case have been ordered back to court for a retrial because of the trial judge's error in refusing to ask the jurors individually whether in fact their unanimous, individually signed written jury verdict exonerating the defendant doctors of any fault was in fact their verdict.

This case has drawn the attention of the press (for example, here) and bloggers such as New York medical malpractice lawyer Eric Turkewitz.

In a decision last week by New York's highest court, the Court of Appeals held in Duffy v. Vogel that parties in a civil lawsuit have an absolute right to have the judge poll the jury (i.e., ask each juror, after the foreman reads aloud their verdict, whether he consents to the verdict) and that whenever that requirement is not met a new trial must be held - no matter how harmless it may appear to have been. The high court overturned an intermediate appellate court's 3-2 decision reinstating the jury verdict.

This decision breaks new ground in New York. There is an existing statute in the Criminal Procedure Law (Section 310.80) that requires polling in criminal cases; however, the requirement to poll juries in civil cases has no statutory basis and courts have applied the rule over the years but did not mandate a new trial for failing to poll a jury when the failure was found to be harmless error. The Court of Appeals has now effectively usurped the legislature and written new law. That argument was persuasively made by Daniel S. Ratner, the highly esteemed appellate counsel for Dr. Jacobs, but to no avail.

Who will be the new jurors and will they make the same findings?

Eleanor Duffy is a 52 year old woman with permanent fecal incontinence and permanent nerve damage in her vagina which she believes were caused by the malpractice of two physicians - her internist James Vogel, M.D. and her gynecologic oncologist Allan Jacobs, M.D. She sued them both in 2002 claiming that her injuries stemmed from their failures two years earlier when they treated her for complaints of pain in her pelvic area. She said that the doctors should have diagnosed a subsequently discovered tumor in her pelvis that would have been apparent had they ordered imaging studies such as an MRI, performed a biopsy and more thoroughly examined her.

An MRI study may have avoided the litany of litigation and, more importantly, Ms. Duffy's tragic injuries

After four years of litigation and a three week trial, on November 17, 2006, a jury in Manhattan answered "no" to each of many questions put to them regarding whether Drs. Vogel and Jacobs committed malpractice. Drs. Vogel and Jacobs were thus exonerated.

That should have been the end of it. Case closed. But in its 11 page verdict sheet (on which the trial judge told the jury to insert yes/no type answers to 21 listed questions), the jury stated that two other doctors (Arie Liebskind, M.D. and Martin Feuer, M.D.), who had also treated Ms. Vogel over the years, committed malpractice that caused Ms. Duffy's injuries and the jury then calculated plaintiff's pain and suffering damages as $1,500,000.

The problem is that neither Dr. Liebskind (a radiologist from 1996) nor Dr. Feuer (an internist) were sued by Ms. Vogel and they  were not defendants in this lawsuit. And, the jury was specifically told by the judge in advance to disregard the damages question should they (as they ultimately did) find that the defendants (Drs. Vogel and Jacobs) had not committed malpractice.

• The jury did find that there was malpractice:  but only by non-parties Drs. Liebskind and Feuer

Insider's Information:

• The fault of the non-party doctors was discussed at trial because it would be relevant if, but only if, there was fault on the part of the defendant doctors (the percentage of responsibility for payment of damages by defendants found liable is adjusted downward when there are non-party persons who are found to be at fault as well)
• Dr. Liebskind was not sued because the 2 1/2 years statute of limitations had run as against him
• It's not clear why Dr. Feuer was never sued - given the jury's finding that he committed malpractice in April 2000 by failing to order imaging tests such as an MRI. Perhaps he should have been sued and perhaps plaintiff's attorney was negligent in not adding him to the lawsuit - irony indeed.
• The jury's confusion became apparent when during deliberations they sent out a note to the judge asking: "If we find named non-parties liable for her damages, are they responsible for any, if any of the compensation?"
• Instead of answering directly, the judge then told the jury: "The percentage that is attributed to whoever you do attribute to ... then becomes a factor that is used as to that person's responsibility towards the total amount of whatever the damages are."
• The judge was Donna M. Mills who was a year earlier censured by the New York State Commission on Judicial Conduct for acting inappropriately following her arrest for DWI (for which she was acquitted) and for conduct that undermined public confidence in the judiciary.
• The judge could easily have avoided all of the post-verdict appeals and the upcoming retrial had she simply polled the jury as plaintiff's attorney had requested. All she had to do was ask each juror: "Was the verdict just announced by the foreman in all respects your verdict?" No doubt, each juror would have said "yes" since each had already signed the verdict sheet.

Clearly, plaintiff and her attorney are elated with the current appeals court decision. They believe that the jury intended to award her money damages and they will now get a second chance to try to convince a  jury that Drs. Vogel and Jacobs committed malpractice (though there's still no way to sue Dr. Liebskind because the statute of limitations ran against him and now the same is true as to Dr. Feuer).

The defendants and their attorneys are upset and rightfully so. They prevailed in a 16 day trial with 11 expert witnesses and it was clear that the jury exonerated them completely. Now, they must prepare again for trial, this time with a new jury (and we know how different jurors can come to stunningly different verdicts even though the facts and the parties are the same).

As the dissenting judge in the Court of Appeals said: requiring a new trial is a "gross injustice" and a "nightmarish result." Defense counsel went further, calling the order for a new trial so that jurors can be polled "a travesty of justice."

We will follow this case and report on developments.

• Prediction: The case will not settle and will be retried. The defendants will prevail. Again.

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