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

What were they thinking? In a stairway trip and fall negligence case, the jury found:

1. plaintiff was negligent but defendant building owner was completely at fault and
   
2. the 35 year old plaintiff was entitled to $5,000,000 for past pain and suffering but zero for future pain and suffering

No one knows for sure what the jury was thinking but it’s certain that a brand new jury will be chosen to rule on these issues because the jurors who made these findings either were hopelessly confused, unable to understand the trial judge’s instructions or acted in inexplicable, irrational ways.

In any event, after six years of litigation, nine days of trial and countless hours of effort by lawyers for both sides, Davin Dessasore’s lawsuit against the New York City Housing Authority (the “NYCHA”) must now begin anew, according to a recent decision by an appeals court in Dessasore v. NYCHA (1st Dept. 2010).

It all began on December 11, 2003 when the then 31 year old Mr. Dessasore visited his mother at her second floor apartment located at 1085 Bruckner Boulevard in the Bronx, known as the Bronxdale Projects (an NYCHA building).

Here's one of the original 28 seven-story buildings of the Bronxdale Projects, built in 1955:

After his visit, Davin started to descend the stairs when he claims he tripped and fell to the bottom because of a detached handrail lying on the top step of the dimly lit staircase.

No one was with him or saw him fall but it was undisputed that Dessasore had been talking on his cell phone before and after he fell. The defense produced his cell phone records at trial in an effort to prove that plaintiff was careless and caused his own accident. He was cross-examined extensively on the issue of when exactly he was chatting on the phone.

Do not walk down stairs talking on your cell phone:

Plaintiff admitted he either received or made a phone call as he was leaving the apartment and was walking toward the stairs but he claimed he then put the phone away a moment before he fell. The jury found otherwise and ruled that Dessasore was negligent in speaking on his cell phone while descending the stairs but the jury ruled that his negligence was not a proximate cause of his injury and that the NYCHA was wholly at fault for the dangerous condition of the stairway. And then the jury also awarded Dessasore $5,000,000 for his injuries (details on this unusual damages verdict below). Here is a copy of the verdict sheet given to the the jurors in this case on which they recorded their findings.

The appellate court stated that the jury’s finding of 100% liability against the NYCHA without any reduction for plaintiff’s share of the fault was “irreconcilably inconsistent.” The judges noted three important pieces of evidence:

1. plaintiff was not looking down before he started to descend the stairs,
2. he wasn’t paying attention to his surroundings, and
3. he was talking on his cell phone just before he fell.

Therefore, the appeals judges concluded that it was “logically impossible” to find plaintiff was negligent without also finding that his negligence was a proximate cause of the accident. So, the entire liability verdict was dismissed and a new trial ordered on all issues.

The $5,000,000 pain and suffering damages award (all for the past five years and nothing for the future) was also addressed by the appellate court. The judges found it to be irrational, given the extent of plaintiff’s injuries and evidence of their permanence. Both the trial judge and the appellate bench concluded that the jury either did not understand the trial judge’s instructions on damages or did not follow them. Therefore, the new trial on damages ordered by the trial judge was appropriate.

After he fell, Dessasore was taken by ambulance to a local hospital where he was treated and released. Within days, he was in excruciating back pain and within a month of the accident, he claimed radiating pain down the left side to his foot and an MRI showed herniated discs at L4-L5 and L5-S1.

In March 2005 Davin underwent an endoscopic diskectomy at L4-L5 and L5-S1 (a minimally invasive procedure, described here). Four months later, he underwent a second surgery – a lumbar fusion – in which a cage and six screws connected by steel bars were implanted in his back.

Here is what the spine looks like after a lumbar fusion with six screws implanted:

Unfortunately, the surgeries were unsuccessful, Dessasore’s condition worsened and by the time of trial he described nearly five years of unremitting pain, the lack of any feeling in his left arm and hand (except his thumb), the inability to talk even short distances without literally dragging his left leg to move and daily reliance on a powerful prescription pain drug (Oxycontin). His doctors diagnosed him as suffering from hemiparesis (partial paralysis affecting one side of the body).

People afflicted with hemiparesis usually have a flexed elbow, stiff knee and an inverted ankle, with the lower limb swinging forward in a semicircular fashion and often require assistive devices like this:

The defense doctors disputed the finding of hemiparesis (it's most often caused by a stroke or cerebral palsy, not trauma) testifying that there was no evidence of a spinal cord injury and no anatomical basis for many of plaintiff’s complaints. Essentially, while conceding that the MRI studies showed the presence of herniated discs, they concluded that plaintiff has preexisting degenerative disc disease because of the presence of osteophytes and that his symptoms and neurological findings were way out of proportion to the findings in his imaging studies.

The jury apparently rejected the defense doctors’ conclusions because they awarded plaintiff $5,000,000 for his past pain and suffering.

Defense counsel attacked the $5,000,000 awarded for past damages as wildly excessive to the extent it exceeded $900,000. Given recent appellate court decisions ruling on multi-million dollar past pain and suffering awards, it appears there is merit to the defense position. Awards for 5-10 years of past pain and suffering in the range of $1,000,000 to $3,000,000 tend to be upheld on appeal only for persons with catastrophic physical and brain injuries such as:

• Smith v. Au (1st. Dept. 2005) - $1,000,000 for past pain and suffering (6 years) upheld for a 37 year old man who, due to medical malpractice, sustained  a stroke with permanent brain damage and right-sided paralysis
• Reed v. City of New York (1st. Dept. 2003) - $2,500,000 for past pain and suffering (7 years) upheld for a 43 year old woman in a pedestrian knockdown car accident who sustained several skull fractures and significant and progressive brain damage that left her permanently demented
• Weinstein v. New York Hospital (1st. Dept. 2001) - $2,000,000 for past pain and suffering (9 years) for a 22 year old college student who, due to medical malpractice, sustained brain damage with a permanent seizure disorder, memory deficits and loss of balance

The appellate court did not adjust the $5,000,000 award for past pain and suffering because of its rulings that the liability verdict was to be set aside and that the failure to award future damages may have been because the jury meant to include such damages in the $5,000,000 it did award (but denominated for past damages only). Since the appellate judges properly declined to speculate why or how the jury reached such an odd result, they simply ordered a new trial on all issues.

Inside Information:

• Defense counsel attacked plaintiff’s credibility at trial and on appeal – plaintiff was a prior convicted felon who spent 4 ½ years in jail for drug dealing.
• The jury also declined to make any award for medical expenses (past or future) despite evidence that plaintiff incurred past expenses of about $160,000 and would require lifelong medical care that his attorneys suggested would amount to about $800,000.
• After a nine day trial and the start of deliberations at the end of the day, the jury deliberated for a mere one hour (one juror had said he had a personal problem necessitating his travel out of town and would not return to court the next day). Clearly, they rushed and wanted to be done quickly.

Shortly after trial, the defendant offered $2,000,000 to settle but it was rejected. On appeal, plaintiff’s attorney asked the court to uphold the $5,000,000 for past damages and award an additional $2,000,000 for future damages. The court declined to do either and now, plaintiff has received nothing and faces a new trial on all issues.

To recover any damages whatsoever at the new trial, plaintiff will have to prevail on liability and the defense will surely argue that Dessasore was so careless that the jury should find he completely caused his own accident and injuries and should recover nothing at all. We will follow this case and report on developments.

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

It's rare that the Court of Appeals, New York's highest court, rules on the proper amounts for pain and suffering in accident or medical malpractice cases. Usually, jury verdicts are challenged by the aggrieved party at the trial court level (a post-trial motion addressed to the trial judge) and/or at the intermediate appeals court level (one of the four statewide Appellate Division courts). Last week, though, the Court of Appeals weighed in on the pain and suffering verdict in a medical malpractice case.

Lang v. Newman (link is to Court of Appeals decision; Appellate Division decision is here) involved the claims of a 26 year old woman who woke up on January 14, 2003 with weakness on her left side, lightheadedness and tunnel vision. After an ambulance took her to the hospital, she also complained of nausea and a severe headache. Ms. Lang was given a CT scan (it was negative), medicated, observed, offered a lumbar puncture (she declined) and after a couple of hours she was feeling much better, had no pain and the difficulties on her left side seemed to have abated. She was discharged to home with a diagnosis of migraine headaches (from which Ms. Lang suffered in the past).

Within hours she was back in the hospital and ultimately diagnosed with an ischemic stroke (a cerebral infarction caused by an inadequate supply of blood and oxygen due to a blocked artery).

She then sued the doctors.

Liability against one of her doctors was found by the Cortland County jury which concluded that the doctor prematurely discharged her from the hospital without further observation and treatment. While it was ultimately determined that Ms. Lang had already been suffering from a stroke when she first came to the hospital, the doctor was found to be liable for $300,000 in past pain and suffering damages (four years from the incident to the trial date) because of expert testimony that timely admission and treatment would have made the effects of the stroke less severe.

Plaintiff sought in addition substantial future pain and suffering damages claiming that sensory changes on her left side, a seizure disorder and worsening anxiety were all caused by the malpractice and are permanent. The jury's refusal to award her anything at all for the future was upheld by the appeals court.

The defense presented evidence that the plaintiff's seizure disorder had fully resolved by the time of trial and that whatever other symptoms she complained of were mild, subjective and could not be quantified. The trial judge concluded (and the appeals courts agreed) that it was not irrational for the jury to conclude that the majority of plaintiff's symptoms resolved prior to trial and that those that remained were either so minimal as to warrant no compensation or not satisfactorily proven by objective, credible medical evidence.

This was a hard fought case both on liability and damages grounds. The defense doctors claimed no liability because plaintiff's stroke had already occurred before she came to them and it seems there's merit to that position. Unfortunately, the jury, the judge and two banks of appeals courts judges (except for a lone dissent at the Appellate Division) disagreed. The plaintiff claimed she should be awarded millions in future damages because of the lifelong effects of the stroke (she was only 26 at the time); however, the jury clearly agreed with the defense that either she had already fully recovered or that whatever deficits she was left with could not - because she already had the stroke before being treated by the defendants - clearly be assigned to the malpractice.

Both sides walked away from this case feeling the sting of a loss.

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