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

On May 26, 2006, Veena Sadhwani, then 77 years old, was struck by a bus making a left turn onto Third Avenue from 32^nd Street in New York City. The bus driver never saw her before impact which he said took place about 1/3 of the way through the pedestrian cross-walk.

Mrs. Sadhwani was so brain damaged by the time she brought a lawsuit for her injuries that her pre-trial testimony as to exactly where she was that day was wildly inconsistent. After neurologists for both sides testified and the judge heard some limited testimony from her, the plaintiff’s presence on the witness stand was excused and the liability aspect of the trial went ahead with just the bus driver and accident reconstruction experts (no one else witnessed the accident). The jury returned a verdict finding the bus driver 100% at fault.

As to damages, the jury assessed the testimony of the medical experts for both sides as well as plaintiff’s husband as to her before and after condition and they awarded $1,900,000 for her pain and suffering ($900,000 past – 2 ½ years, $1,000,000 future – 10 years).

In addition to challenging the liability verdict as not supported by the evidence as well as the judge’s rulings on the failure of Mrs. Sadhwani to testify despite her being present in court, the defense challenged the damages verdict claiming it was unreasonably excessive. Last week, the appellate court upheld the verdict in its entirety in Sadhwani v. New York City Transit Authority.

The court decision merely states that plaintiff suffered an extensive brain injury that has had devastating effects; however, there was little else to explain what precisely happened medically and why it was reasonable for a jury to award $1,900,000 for pain and suffering to a then 79 year old woman.

We have uncovered the injury details. Here they are:

• ·         Fractured skull
• ·         Subdural hematomas
• ·         Subarachnoid hemorrhage
• ·         Fractured ribs, fractured clavicle and collapsed lung

After a three week hospitalization with intensive physical and occupational therapy, plaintiff was discharged to home and then treated as an outpatient undergoing vesticular rehabilitation.

There was little dispute at trial about Mrs. Sadhwani’s total, severe and permanent disability:

• can no longer speak spontaneously, go to the bathroom or participate in any daily activities independently
• essentially has no memory and cannot recognize relatives
• is clinically Bradyphrenic (meaning not thinking)
• requires constant home health aide

Her doctor characterized Mrs. Sadhwani as totally disabled from post-traumatic Parkinsonism (the development of Parkinson's disease symptoms following a severe head injury).

The defense neurologist who examined Mrs. Sadhwani two years before trial issued a report in which he conceded that her cognitive, memory and other problems were the result of trauma consistent with a skull fracture, hemorrhage and hematoma. At trial, the defense doctor changed his position and claimed that these devastating injuries were at least partly attributable to an unrelated stroke that occurred  a year after the accident. Plaintiff’s neurologist countered (and the jury obviously concluded) that the stroke was itself caused by the accident trauma.

This was a particularly significant pain and suffering award given that plaintiff was 79 years old at the time of trial. The jury was instructed, though, that according to the National Center for Health Statistics life expectancy tables, plaintiff had a 10 year life expectancy and they found that $1,000,000 for 10 years was reasonable given her dramatically altered lifestyle and devastating brain damage.

While there are few comparable appellate court verdicts, the court properly cited Hernandez v. Vavra, a TBI (traumatic brain injury) case we discussed here, where $2,750,000 was upheld for a retired man in his 60's (almost 70 at trial). That award included $1,750,00 for 15 years of future pain and suffering.

Clearly, the appellate courts are approving jury awards well in excess of $1,000,000 for future damages for people in the 60's and 70's who suffer traumatic brain injuries resulting in the near destruction of the remaining years of their lives.

• Email This
• Print
• Comments (1)
• 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