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

We wrote about this tragic case last August, here, and can now report that the estate of Michael Colombini has settled all of the claims arising out of his death in 2001. Bearing full responsibility, Westchester County Health Care Corp. (the formal name of Westchester Medical Center in Valhalla, New York) has agreed to pay $2,900,000.

Michael Colombini had been undergoing a magnetic resonance imaging (“MRI”) test at the hospital on July 26, 2001 when a hospital nurse brought an oxygen tank into the MRI room and, as it was made of ferrous metal, the oxygen tank was propelled missile-like into the machine where it struck Michael’s head as he lay sedated being tested for a brain tumor. He died two days later.

This type of oxygen tank, made of aluminum alloy, is ideal for MRI departments where non-ferrous materials are a must:

Within days, the hospital assumed full responsibility and later offered $1,000,000 to settle quietly. The offer was declined and extensive litigation ensued not only against the hospital but also against nine other defendants (including doctors, a nurse, technicians, the MRI suite administration company and the MRI manufacturer). Claims were made for wrongful death, pre-death conscious pain and suffering and punitive damages.

After nine years of pre-trial discovery (such as depositions and document exchanges), motion practice (the defendants sought dismissal on technical grounds more than once) and an appeal, the hospital increased its offer by nearly three-fold and the case is now over. A court order approving the settlement was signed last week.

The settlement is significant because it's a large recovery by New York law standards for the death of a child (the New York State Trial Lawyers Association vigorously opposes as unfair the limiting laws in New York regarding damages allowed in child death cases). And, to the extent that the settlement represents a recovery for Michael’s pain and suffering, $2,900,000 appears to exceed the amounts sustained in appeals in all prior New York cases dealing with short periods of pre-death pain and suffering.

So why did the hospital pay so much to settle? Three reasons:

1. looming punitive damage claims
2. the possibility of a significant emotional distress verdict in favor of Michael’s father (who was at the scene) and
3. the tenacity and reputation of the Colombini family lawyers Tom Moore and Matthew Gaier

Punitive damages are very rarely awarded or sustained on appeal in a negligence or medical malpractice case. They are viable only when it’s proven that a defendant engaged in conduct evincing an utter indifference or conscious disregard for the safety of others.

In this case, that claim was made against several defendants but as to the operator of the MRI suite – University Imaging Medical Corp. (“UIM”) – it looked like there was a good chance plaintiff would prevail.

UIM made a motion back in 2004 to have the punitive damages claim against it thrown out. The trial judge granted the motion and tossed the claim; however, on appeal in 2005 the appellate court reinstated the punitive damage claim against UIM.  Plaintiff was prepared to prove that UIM, which was responsible for MRI safety and training, had wantonly ignored safety practices in the MRI suite in allowing ferrous materials near the MRI magnet.

The punitive damage claim against UIM was a big, open item and had the jury agreed UIM should be punished then the assessment would likely have been several million dollars (it’s nearly always many, many multiples of the actual or compensatory damages awarded).

Emotional distress claims are recognized in New York courts for people not physically injured in an accident when they were within the “zone of danger” and feared for their own safety. When he rushed into the MRI suite after the oxygen tank hit his son, Mr. Colombini testified that he was indeed in fear. The appellate court, in its 2005 ruling in this case mentioned above, found that there was an issue of fact as to whether Mr. Colombini was in the zone of danger and he was permitted, therefore, to present his emotional distress claim before a jury at trial.

In a July 6, 2009 decision, though, the trial judge dismissed the emotional distress claim. The judge said that Mr. Colombini had not shown that the defendants owed him any duty of care and he had not shown he really feared for his own safety. This ruling was puzzling in that the judge reversed her own prior ruling in 2004 that allowed this claim to proceed.  Plaintiff’s counsel no doubt felt that had this case not settled then the father’s emotional distress claim would have been reinstated on appeal and that a very substantial sum would have been awarded directly to the father for his emotional distress.

The law firm of Kramer, Dillof, Livingston & Moore is without question one of the top plaintiff’s medical malpractice law firms in New York. In this case, partners Thomas A. Moore and Matthew Gaier superbly represented the Colombini family and reached the best result that anyone could have. “Tommy” Moore has become a legendary figure in the New York courts on behalf of malpractice victims. It is not an exaggeration to say that in this case, the defendants paid top dollar and then some because Mr. Moore was ready to try the case. That’s not to say he’s infallible -- he has critics and, like anyone who tries many cases to verdicts, he's been defeated -- but it is to say that the $2,900,000 settlement in this case is probably more than would have been sustained on an appeal of a jury verdict in that amount or higher.

I pause before I close this post with a thought and a prayer for Michael Colombini and his wonderful family. They are good people who've suffered tragedy beyond words. May Michael's soul be bound up in the bond of eternal life and may his family know no more sorrow.

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

The purpose of punitive damages in personal injury lawsuits is to act as a punishment to the offensive defendant and as a deterrent or warning to others. They  are awarded in addition to the plaintiff's compensatory damages (i.e., pain and suffering, loss of earnings and medical expenses); however, they are only available when a defendant's conduct has a high degree of moral culpability and manifests a conscious or reckless disregard for the rights of others.

Punitive damages are controversial. For example,  Ted Frank at Overlawyered discusses the issues surrounding tax deductions for punitive damage payments here and law school professors Edward Cheng (Brooklyn) and Albert Yoon (Toronto) discuss their unpredictability at TortsProf Blog here.

The most recent appellate court decision in New York to deal with punitive damages is Frankson v. Brown & Williamson Tobacco Corp., a smoker's wrongful death lawsuit, in which the decedent's estate was awarded $20,000,000 in punitive damages. That award was vacated this week and a new trial ordered.

It all began in 1954, when Harry Frankson, then 13 years old, started smoking unfiltered Lucky Strike cigarettes. Within a year, he was up to a pack a day. After 44 years, he died of lung cancer. There was never a question as to what caused his death – cigarette smoking – but when on July 24, 2000 his widow sued the cigarette maker and others, there was a big question as to whether anyone but Harry bore responsibility for his own death.

After a trial in Brooklyn, New York, the jury on December 18, 2003 found that both Harry and the defendants were at fault (50% each) and that his estate was entitled to compensatory damages of $350,000 ($150,000 pre-death pain and suffering, $200,000 widow’s loss of services) before apportionment for comparative fault.

Two weeks later, after a separate hearing, the same jury found defendants liable for punitive damages in the sum of $20,000,000. They based their award on their conclusion that the defendants had wantonly, recklessly, maliciously and fraudulently concealed the health risks of smoking (until 1969 when government warnings became the law).

In a post-trial decision, here, the judge found that the 57 to 1 ratio of punitive damages to compensatory damages was neither sensible nor fair and that $5,000,000 (a 14 to 1 ratio) was far more fitting and fair.

Defendants appealed, arguing that the reduced $5,000,000 punitive damages figure was still unfair, indeed constitutionally impermissible, and that the jury was not properly instructed that it could not award punitive damages to punish the defendants for harm to smokers other than Mr. Frankson. The appellate court, here, rejected the defendants’ arguments and upheld the $5,000,000 punitive damages award.

Then, the United States Supreme Court ruled in 2007 in Phillip Morris USA v. Williams that the 14th Amendment's due process clause forbids a state from using punitive damages to punish a defendant for injury that it inflicts on non-parties. That’s just what the defendants complained of in Frankson – that the trial judge refused their request to instruct the jury that they could not impose punitive damages for injuries to anyone other than the plaintiff Mr. Frankson. Reaction to this decision, though, was mixed, with some who favor curtailing punitive damages wondering whether the high court judges were finding laws in the constitution that simply do not exist (e.g., Point of Law, here).

Plaintiff’s attorney in Frankson v. Brown & Williamson Tobacco Corp. had argued at trial (improperly as the appellate court later ruled) that the jury should send a message not just to the defendants but to corporate America, that the tobacco industry knew it would expose millions of people to carcinogens resulting in lung cancer and death and that the defendants caused not just Mr. Frankson’s death but also the deaths of thousands of others.

So now this case will go back to the trial court for a new hearing on punitive damages. This time the jury will be given proper instructions and specifically told that it may not impose punitive damages for injuries to anyone other than Mr. Frankson.

Inside Information:

• The U.S. Supreme court has addressed the issue of punitive damages several times in recent years, expressing its displeasure with the unpredictability of such awards.
• In another case decided after the Frankson trial, Exxon Shipping Co. v. Baker (2008), the high court reiterated that its declaration in State Farm v. Campbell (2003) that no more than a single-digit ratio of punitive to compensatory damages (i.e., 1 to 1) is constitutional in all but the most exceptional cases. Anything higher than that, the court suggested, would  violate the due process clause which prohibits the imposition of grossly excessive or arbitrary punishments on a civil lawsuit defendant.
• The high court's suggested formula would leave the Frankson estate with only $350,000 in punitive damages to go with the $350,000 of compensatory damages.

We will follow the Frankson case as it reaches trial again and we will follow our nation’s highest court as it revisits the issue of punitive damages and their constitutional limits.

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

Dolores Johnson was 70 years old when she suffered a stroke and had to undergo surgery for a clot on a pre-existing mitral valve. There was a danger that the clot would break off and block a blood vessel. After the surgery, Ms. Johnson never woke up and five days later she died. Cause of death: severe anoxic injury to her brain.

In her husband's ensuing medical malpractice lawsuit, the jury found that the cardiothoracic surgeon deviated from accepted medical practice in performing the surgery and in utilizing a relatively new technology called "heartport" (sometimes used as an alternative for the traditional aortic clamp).

Here is the traditional aortic clamp:

So, defendant's malpractice was established in Johnson v. Jacobowitz and plaintiff won the case but then came the issue of damages. To recover pain and suffering damages in a wrongful death case, as we've noted before, here and here, plaintiff must show that the decedent experienced conscious pain and suffering before her death. That's where the case fell apart for Johnson.

This week, the appeals court in Johnson v. Jacobowitz upheld the trial judge's finding that there was insufficient evidence of awareness on the part of Ms. Johnson to make out a case with respect to conscious pain and suffering. Therefore, the the trial judge was correct in refusing to allow the jury even to consider the pain and suffering issue.

Proving conscious pain and suffering is difficult in cases involving comas or so-called vegetative states. It can be done, though, through medical testimony such as a neurologist testifying about the testing he did and the observations he made. Family members and nurses can show that the decedent cried out in pain, winced and so forth.

Walsh v. Staten Island Obstetrics & Gynecology Associates, P.C. is an oft-cited case in this area. There, an appeals court upheld a verdict of $650,000 in the case of an infant in a vegetative state for his entire eight year life. The court found that his level of awareness was established by testimony that he cried when he received painful stimuli and smiled and laughed at pleasurable stimuli.

Colombini v. Westchester County Health Care Corp. is a tragic case involving the death of a six year old boy. Michael Colombini was at the hospital undergoing magnetic resonance imaging when he was struck by an oxygen tank as he lay inside the MRI machine. He died from his injuries 53 hours later.

This is an MRI machine similar to the one in the Colombini case:

A medical malpractice case was brought by Michael's parents against the hospital and several others including the machine manufacturer, nurses, technicians and doctors. Damages were sought for Michael's pain and suffering. Additionally, plaintiffs claimed punitive damages (recoverable when a defendant engages in willful or wanton conduct evidencing an utter indifference for the safety of others). Much of the still pending litigation from this 2001 accident relates to the punitive damages claim (trial judge's July 2009 decision here) and the claims against defendants other than the hospital (which acknowledged its responsibility early on and offered $1,000,000 to settle).

The issue of pain and suffering in the Colombini case made its way to the appellate court. Both sides submitted medial affidavits.

• Defendants' neurologist claimed that because Michael had been sedated before the MRI procedure, he was already unconscious at impact and that after impact the brain damage from the impact made him unable to feel pain.
• Plaintiffs, however, submitted an affidavit from an anesthesiologist who stated that the sedatives merely put Michael into a tranquil state and that he was awake and experienced significant pain and suffering.

The appellate court in the Colombini case found that the competing medical affidavits resulted in issues of fact to be determined by a jury as to whether Michael did indeed experience conscious pain and suffering.

Whether plaintiffs prevail in the Colombini case as to pain and suffering or not, they will still face the fact that it was only two days after the accident that death occurred. Courts have necessarily addressed the issue of the amount of time a decedent suffered before death and have adjusted pain and suffering awards accordingly, as we discussed here.

• Email This
• Print
• Comments (2)
• 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 (Appellate Division, 2nd 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 (Appellate Division, 2nd 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 (Appellate Division, 2nd 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.

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

A six year old California boy died during a family trip when the rear tire on the rental car his father was driving blew out and the car rolled over.

  According to the family attorney, William Berman of San Diego, after years in court, forensic experts and deposition testimony revealed that the rental car firm allowed the failed tire to run for a prolonged time in a severely under-inflated state. The defendant finally admitted liability and a $2,450,000 wrongful death settlement was reached.

Had this case been brought in New York or governed by New York's wrongful death laws, the result would have been drastically different.

Under New York's wrongful death statute - EPTL Section 5-4.3 - there are two categories of damages in death cases:

1. special damages - such as funeral, medical and nursing expenses
2. general damages - the pecuniary (i.e., monetary) loss to the decedent's survivors

There are no damages allowed in New York wrongful death cases for the parents' grief or emotional loss (unless the parents were at the scene and either physically injured in the same accident or within the zone of danger).

Here is what the judges read to the juries, right from New York's Pattern Jury Instructions, before submitting these types of claims for their consideration:

• You may not consider or make any award for sorrow, mental anguish, injury to feelings or loss of companionship.
• You must determine the economic value of the decedent to his distributees (his heirs)

This is in distinction to most other states, such as California, and something the plaintiff's bar in New York has for many years, unsuccessfully, tried to have changed legislatively.

The only other significant category of recovery in wrongful death cases involving minors in New York is pre-death conscious pain and suffering. That's often not relevant (e.g., instant death from an accident, death from medical malpractice while under anesthesia). We've discussed in a recent post important  cases dealing with the pre-death pain and suffering aspect in wrongful death cases.

So the main claim the families of minors in New York are often left with is that the decedent would have contributed his or her net income to, or otherwise would have financially helped, the survivors.

How do you prove that a two year old would have become a significant income earner and would have given over to his parents significant amounts during their lifetime? Plaintiffs' attorneys are relegated to issues such as the infant's intelligence, likely education, statements that were made regarding future support, the parents' own economic situation, how much the kid helped around the house and the like. Very difficult and sometimes impossible to prove.

Here are some cases in which there were verdicts awarding damages for the loss of an infant's future financial support:

• Cepeda v. New York City Health and Hospitals Corp - $83,000 jury award for future pecuniary loss for the death of a 12 day old infant went unchallenged on appeal
• Kruger v. Wilde - $100,000 for pecuniary loss for the death of a 14 year old girl who was a good student and worked part-time
• Alcalay v. Town of North Hempstead [unreported case] - $200,000 for pecuniary loss for death of 12 year old

Insider's tip: Even in the absence of any verifiable proof, attorneys in New York representing the heirs of a deceased infant will usually make a wrongful death claim. At a minimum, they have the parents testify as to the help they expected the deceased infant to contribute to the family (i.e., household chores) and, if there was a part-time job or any scintilla of evidence (school report cards, the child's stated aspirations), then proof is adduced as to career goals too. If the jury has any basis at all to award pecuniary damages then its award may stand or at worst be reduced somewhat on appeal.

To end on a positive note of sorts, I leave you with references to some recent lawsuit victories in wrongful death cases of minors brought in states other than New York:

• Chicago Injury Attorney Blog reports on a $9,000,000 appellate court win in a medical malpractice a case involving the death of a 12 year old boy
• Alabama Personal Injury Blog reports on a $3,000,000 settlement for the wrongful death of a 12 year old boy in an ATV accident
• Chicago Accident Lawyer Blog reports on a $10,000,000 trial judge decision for the wrongful death of a 15 year old boy in a car accident

We will follow the cases and trends in this emerging area of wrongful death litigation and encourage readers from all areas to report new developments as they break.

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

A 27 year old man, Starsky Garcia, was shot to death in the parking lot of a North Miami Beach parking lot two years ago. The Miami Herald reports that the shooter has never been found but the family hired The Haggard Law Firm in Coral Gables who sued the apartment owners for their negligence.

Now, a Florida jury verdict has held the apartment complex managers and owners were liable for inadequate security and awarded  the decedent's family $8,000,000 in wrongful death damages -

even though the shooter was never caught like the perp was in the photo here!

Florida personal injury attorneys Paige Tropp & Ameen note that the defendants should have implemented proper safety measures to prevent this crime, especially in view of many other recent crimes at Florida apartment complexes.

Unlike in New York, Florida law permits a jury to award survivors loss of companionship damages.  About 30 states allow damages for loss of consortium or loss of companionship in their wrongful death laws. In New York, though, this element of damages is forbidden and juries here are not permitted to award damages suffered by the survivors for their emotional loss. Every year since 1995, there have been failed legislative efforts in New York to get the law changed.

So how come there are still many large wrongful death verdicts and settlements in New York? That's because the permitted damages here include loss of earnings (imagine the tragic death of a young person earning six figures and multiply that out for his expected work life years and the verdict can get into the millions very quickly).

And then there's pre-death pain and suffering. This too can be a huge number but the claim is rife with difficulties for the heirs. First, there's the requirement that the decedent was conscious and actually suffered before he died. Second, there's the difficulty of evaluating the proper amount for this claim.

In Glaser v. County of Orange, the estate of a 50 year old man was awarded $350,000 for pain and suffering after a car accident that resulted in his death at the scene. The jury returned a verdict in the sum of $1,000,000 an amount the appellate court found was too high because the plaintiff's medical expert testified that the decedent was conscious for no more than two to three minutes after his windshield was struck by a rear axle that came loose from the defendant's dump truck and struck the decedent's windshield and he was pronounced dead 15 minutes after the crash.

The Glaser family was faced with long-standing law in New York that to recover for pre-death pain and suffering the estate bears the burden of proving that a decedent suffered conscious pain and suffering - some level of awareness -  following the accident. In the Glaser case, the appellate court was clearly swayed by testimony of witnesses on the scene that the decedent was not moving and exhibited no outward signs of pain.

The court was also influenced by its own 2007 decision in Bennett v. Henry in which it determined that it would not disturb a jury award of $400,000 for pre-death pain and suffering of a 74 year old woman killed in a car accident. There, witnesses testified that they observed the decedent to be breathing at the scene, in pain and making sounds. She was not pronounced dead until 10 hours later at the hospital.

• Email This
• Print
• Comments
• Trackbacks (1)
• Share Link