Dental Malpractice Pain and Suffering Verdict for $450,000 Upheld on Appeal

Posted on December 31, 2010 by John Hochfelder

On August 9, 2006, an electrical fire broke out destroying oral surgeon Gideon Kay's offices in a house on Utopia Parkway in Flushing, Queens.

Here is the actual home of the dental practice as it appeared shortly after the fire:

Within days, Dr. Kay sent letters to his patients advising them of the fire and that for medical reasons he had to retire immediately from the practice of dentistry.

Linda Rizzo, a 58 year old retiree, had been undergoing four years of dental treatment with Dr. Kay for which she had paid $36,000. She, like many others, though, was literally left out in the cold because Kay claimed that the fire destroyed patient records and he could not make arrangements with another dentist for continued care.

Claiming that Dr. Kay had inserted both upper and lower bridges that did not fit and that she'd been abandoned, Ms. Rizzo sued Dr. Kay. In the suit, Rizzo v. Kay (Supreme Court, Queens County, Index # 24608/06), plaintiff sought pain and suffering damages for permanent residual injuries of her jaw and gums.

Kay was sued by many more patients on similar grounds and the state Office of Professional Misconduct and Discipline charged him with practicing dentistry while his ability was impaired by physical disability. Kay did not contest the charge and his application to surrender his license was granted on October 23, 2007.

Meanwhile, Rizzo's suit proceeded and a jury verdict was rendered in May 2009. Kay was found to have departed from the accepted standards of care (in other words, he was adjudged negligent) and  Rizzo was awarded pain and suffering damages in the sum of $450,000 ($300,000 past - 3 years, $150,000 future).

The defendant appealed claiming that the jury verdict was excessive. This week, the verdict was affirmed in Rizzo v. Kay (2d Dept. 2010).

The appellate court did not describe the injuries sustained. Here are the details:

  • 10 implant procedures and the insertion of ill-fitting bridges
  • need for 1-2 years restorative work
  • severe shooting ear pain
  • headaches
  • difficulty eating
  • TMJ disorder (pain and clicking in the temporomandibular joint)

An award of $450,000 for pain and suffering damages in a dental malpractice case is significant. Here are other recent significant dental malpractice cases in which pain and suffering damages have been ruled upon by the appellate courts in New York:

  • Garber v. Lynn (1st Dept. 2010) - $150,000 for 71 year old with improper bridge that caused pain, gum swelling and need for 20 implants and 14 crowns [case discussed here]
  • Clarke v. Limone (2d Dept. 2007) - $125,000 for improperly performed root canal causing cellulitis, infection and TMJ
  • Resnick v. Linkow (1st Dept. 2006) -$400,000 for 41 year old; nerve penetrated during dental implant surgery leaving him with permanent facial numbness, a drooling sensation and itchiness. 
  • Dansby v. Trumpatori (1st Dept. 2005) - $550,000 for 48 year old; misplaced bridge caused abscesses and eye swelling, need for intravenous treatment and surgery
  • Green v. Blanket (1st Dept. 2005) - $225,000 for 60 year old; improperly performed root canal fractured linguinal root causing  pain on bite, swelling and inability to chew on one side
  • Becker v. Woods (2d Dept. 2005) - $750,000 for 41 year old with nerve damage from injection causing permanent parasthesia to side of face and scalp with tingling, twitching, numbness and low voltage electrical currents coursing through face
  • Krechmer v. Mintzer (1st Dept. 2004) - $275,000 for negligently made nightstand (a dental appliance) resulting in open bite, lisp and difficulty chewing
  • Cicalese v. Carter (2d Dept. 2004) - $105,000  for TMJ caused by dentist placing a bridge too forcefully
  • Rafaniello v. Gronowitz (App. Term 2004) - $348,000 for unneeded extraction of several teeth requiring periodontal, restorative and orthodontic treatment

Inside Information:

  • Defendant argued that the controversial trial judge, Duane Hart (about whom we've written before, here) improperly and unfairly inserted himself into the trial by asking too many questions of witnesses and demonstrating partiality toward the plaintiff. While the appellate court rejected this argument, in light of the fact that similar conduct by Judge Hart has resulted in several reversals and the need for new trials they admonished him and basically told him to stop acting improperly.
  • Defendant claimed he had an unspecified heart problem that led to his retirement; however, no medical evidence was introduced at trial to substantiate that claim.

 

Tags: , , , ,

Facial Bones Fractured - $2,750,000 Pain and Suffering Verdict for 16 year old Hit by Bat in School Softball Practice

Posted on February 10, 2009 by John Hochfelder

On a beautiful spring day, 16 year old Chelise Navarro had just finished her turn at bat during high school softball practice at a New York City high school. She handed her bat to the next player who took a full practice swing and .... You know what happened next. Bam. Smash. Crush. Bones broken. Chelise took a full, powerful bat swing right into her face and sustained a crushing fracture of of the bone under her left eyelid, displacement and bowing of the zygomatic arch (which forms the prominence of the cheek) and a fracture of her maxillary sinus.

Let's take a look at some of these facial bones:

In Navarro v. City of New York (Supreme Court, Bronx County; Index # 25776/04; 11/25/08), Chelise claimed that the New York City Department of Education was liable for her pain and suffering injuries because her gym instructor didn't properly supervise the other students. And she won her case when the Bronx County jury (said by a  character in the movie "Bonfire of the Vanities" to be the best juries for plaintiffs because they believe in the redistribution of wealth) awarded her $2,750,000 for her pain and suffering ($750,000 past, $2,000,000 future).

A post-trial motion is pending as we write and no matter what the judge decides, in my experience I can tell you that there will be an appeal of this case. Defense counsel is adamant that there was no liability on the city's part - that fault should rest only on the student who whacked Chelise in the head.  I think the city is right and will succeed on its appeal to have this case thrown out. Even if liability is upheld, though, the appeals court will very likely find that the pain and suffering damages awarded were excessive and that they should be reduced substantially.

A review of all of the reported and many unreported cases that dealt with jury awards for facial injury pain and suffering indicates that the sustainable range for most of the significant facial injury cases is $200,000 to $500,000.

Of course there will be an isolated case here and there with much higher or lower recoveries that are sustainable but they are the exception, not the rule. For example, there's the case of Storms v. Vargas (2d Dept. 1998) in which an appeals court upheld a $4,000,000 Kings County pain and suffering verdict for a 31 year old police officer. But that case was atypical in that the plaintiff there was in a high speed emergency vehicle accident when his face was thrust into a metal and glass speedometer and  his eye, face, nose and forehead were all crushed and had to be surgically rebuilt. By the time of trial, he had already undergone 26 surgeries, wold likely need 16 more. He was, as the court declared, "a patient for life." Clearly, that case is extraordinary.

Here's what happens when bones in the face are so broken that surgery with metal insertions (i.e., open reduction internal fixation) is needed:

And here are some of the more typical and recurring facial injury cases which, as you will see, end up with sustainable verdicts in the $200,000 to $500,000 range:

  • Resnick v. Linkow (1st Dept. 2006) - $400,000 ($150,000 past, $250,000 future) pain and suffering award for a 41 year old patient in a dental malpractice case in which plaintiff claimed a nerve was penetrated during dental implant surgery leaving him with permanent facial numbness, a drooling sensation and facial itchiness. The New York County jury had returned a verdict of $2,000,000 but the trial judge reduced it to $1,000,000 and then the appeals court even further.
  • Angerome v. City of New York (2d Dept. 2002) - $500,000($200,000 past, $300,000 future) pain and suffering award for a 15 year old passenger in a high speed car accident who sustained a traumatic injury to her jawbone, a left angle fracture and a right para-symphsis fracture. Her jawbones had to be wired shut for eight weeks, she had a second surgery to tighten the arch bars in her jaw and she was left with a permanent clicking and muscle spasms around her jaw. The Queens County jury had awarded her $2,250,000 for her pain and suffering  but the appeals court substantially reduced that figure finding that the jury's award deviated materially from what would be reasonable compensation.
  • Mancusi v. Miller Bewing Co. - $500,000 ($200,000 past, $300,000 future) pain and suffering New York County jury verdict affirmed for a taxi cab passenger whose face was thrown against the Plexiglas partition separating the front and rear seats. She had lacerations to her face and inside her mouth, parasthesias affecting her chin and lip, trauma to seven teeth and internal derangement of her temporomandibular joint ("TMJ"). After extensive dental surgery, Ms. Mancusi was left with a permanent limited ability to open her mouth and the appeals court found that the $500,000 verdict was reasonable.
  • Cicalese v. Carter (2d Dept. 2004) - $105,000 ($35,000 past, $75,000 future) pain and suffering award for a woman in a dental malpractice case who claimed that her dentist caused her TMJ when he placed a bridge into her mouth too forcefully. The Suffolk County jury had awarded $200,000 for Ms. Cicalese's pain and suffering but the appeals court reduced that sum apparently affected by the fact, not reported in the decision but found by me after searching through court records on file, that the plaintiff had been involved in a huge car crash three years before she sought the bridge treatment and that in the car accident she had huge facial injuries including a fractured cheekbone that required surgery. On top of that, there was evidence that three years before the alleged malpractice the plaintiff had complained of TMJ-like symptoms and was advised to see a TMJ specialist but that she failed to do so. I'd say this plaintiff was lucky to walk away from her dental malpractice case with any verdict at all.

UPDATE: On September 8, 2011, Navarro v. City of New York was reversed on liability grounds and the entire case has been dismissed. Here is the appeals court decision and here is a new article on this case.

Tags: , , , ,