Robert O’Connor, then 77 years old, was admitted to Kingston Hospital  on December 26, 2008 from the office of his physician when he was noted to be dehydrated and hypotensive subsequent to a several week history of loss of appetite and generalized weakness with nausea and vomiting. Within two days, he was diagnosed with multiple cancerous liver and bone metastases. During his two weeks at the hospital, Mr. O’Connor developed significant bed sores from which he suffered until he succumbed from cancer and died at another hospital on February 27, 2009.

In his estate’s ensuing medical malpractice lawsuit, an Ulster County jury determined that Kingston Hospital committed malpractice by departing from accepted standards of nursing practice in its treatment of Mr. O’Connor between 12/26/08 and 1/9/09 and, after he was discharged to his home for nine days, between 1/18/09 and 1/23/09. Plaintiff’s expert identified three specific deviations that caused the pressure ulcers to develop and worsen: (1) failing to turn the patient every two hours, (2) failing to supply an air mattress, and, (3) failing to to recognize the high risk for pressure ulcers and have a plan in place designed to minimize pressure on the skin.

The jury awarded pain and suffering damages in the sum of $500,000 (past – two months), an amount that was affirmed in O’Connor v. Kingston Hospital (3d Dept. 2019).

Here are the injury details:

  • development of Stage II pressure ulcer by 1/1/09 (and two more by 1/3/09) which grew to 10 centimeters and was designated unstageable by 1/19/09 and which by 1/23/09 was diagnosed as a Stage IV sacral decubitis pressure ulcer which had the appearance of rotting flesh and had purulent serosanguineous discharge and odor
  • constant pain, as is typical with pressure ulcers, in and about his buttocks and legs, leaving him unable to walk
  • two surgical irrigation and debridement procedures to remove the eschar (dead tissue) and drain inside the ulcer

Plaintiff argued that defendant’s negligence caused a large grotesque foul-smelling wound in which flesh literally rotted as the decedent, a stoic Korean War veteran, died an ignominious and painful death. Defendant argued that it was far from clear that the decedent developed any pressure ulcers while under its care and that its records indicated he was discharged “without skin breakdown.”

As to damages, the defense contended that the pain and suffering award was excessive and that:

  1. whatever pain the decedent had it was well controlled while under the defendant’s care,
  2. whatever pain he had related almost solely to his abdominal region likely due to his metastatic cancer, and ,
  3. the jury speculated impermissibly with regard to which, if any, pain and suffering was the result of any alleged departures or was “simply an unfortunate result of his suffering from terminal metastatic cancer with associated treatments.”

Inside Information:

  • Joycie O’Connor, the decedent’s wife who was with him every day in the hospital, died while this case was on appeal.
  • Between the two admissions to Kingston Hospital, the decedent was cared for at home by his wife and Willcare, Inc., a home health agency. It was sued along with the hospital. After its motion for summary judgment was denied, plaintiff settled with Willcare for $200,000.

On September 1, 2010, while at work as a physical therapy assistant, Arlene Daniele, then 59-years-old, felt a twinge in the area of her lower back. The next day, she felt pain when attempting to walk. She went that day to see a pain management physician and was diagnosed with lumbar enthesopathy (inflammation) and myalgia (muscle pain) and given two trigger point injections (a steroid and an anti-inflammatory).

After a Labor Day weekend of pain, a friend took Ms. Daniele to Winthrop University Hospital in Mineola on September 7th where she was treated in the emergency room by a physician’s assistant who ordered an anti-inflammatory injection, pain medicine and an x-ray (which showed spondylolisthesis – forward displacement of a vertebra) before determining that there was no spinal emergency and discharging Ms. Daniele.

Unfortunately, her pain continued and on September 9, 2010, Ms. Daniele was taken by ambulance to another hospital, where an MRI of her thoracic and lumbar spine revealed multiple spinal epidural abscesses (from a bloodstream infection).

Ms. Daniele was transferred to Winthrop for emergency an emergency laminectomy – surgery to decompress the discs at T-6 to L-4.

A week later, she required more surgery – a drainage of a deep abscess on her cervicothoracic spine and a C7-T1 cervical discectomy and fusion.

Ms. Daniele remained hospitalized for two weeks following her second surgery and then spent five weeks in a rehabilitation facility until she was discharged to home.

In the ensuing medical malpractice lawsuit, a Nassau County jury found the pain management doctor was 15% at fault for his delay in following up on his patient after she called his practice on September 5th complaining of continued pain, a fever and difficulty moving around. The jury also found the physician’s assistant and Winthrop Hospital were 85% at fault for discharging Daniele to home without performing a sufficiently thorough examination and/or ordering an MRI and/or blood tests.

While it was conceded that plaintiff probably would have needed some surgery to address the abscesses that pre-existed her encounters with the defendants, she argued that had her condition been timely and properly diagnosed, she would not have suffered any deficits to her cervical spine, and she would have had a much better chance of recovering fully from the lumbar aspects of the abscess. The jury agreed and returned a verdict  awarding pain and suffering damages in the sum of $2,000,000 ($500,000 past – five years, $1,500,000 future – 20 years). The jury also awarded damages for plaintiff’s loss of earnings in the sum of $600,000 ($250,000 past, $350,000 future – seven years).

Defendants’ post-trial motion to set aside the verdict was denied. They then appealed arguing that rulings made during the trial were improper, unfair and so prejudicial that a new trial was required as to the issue of liability. Alternatively, they argued that the damages awards were excessive and should be reduced.

In Daniele v. Pain Management Center of Long Island (2d Dept. 2019), the appellate court agreed with the defendants  to the extent that it ordered (a) the jury verdict on liability was set aside and (b) the matter was remitted to the trial court for a new trial on the issue of liability. In light of its determination, the appellate court did not need to specifically address the damages issue.

As to damages. there was no dispute about the rule that where a defendant’s wrongful act did not cause a disease or condition, but only aggravated and increased the severity of a condition existing at the time of an injury, plaintiff may recover only for such increased or augmented sufferings as are the natural and proximate result of the defendant’s act.

The defendants argued that there was insufficient proof that plaintiff’s condition was exacerbated by a delay in surgeries to treat her pre-existing abscesses and that since she would have required the surgeries to treat the abscesses, the only injury attributable to them would be any pain and suffering directly flowing from the alleged treatment delay.

Plaintiff claimed she continued to have back and leg pain, her right foot remains numb and she is unsteady on her feet and can no longer work as a physical therapy assistant or perform activities such as hiking, dancing or engaging in sports. Her damages expert testified that she has permanent cervical-related weakness in her right arm and hand, impaired balance, impaired tandem gait, reflex asymmetry and an abnormal or dropped reflex in her ankle which related to damage in her lower spine. Plaintiff argued that but for the malpractice,  she would not have suffered any deficits to her cervical spine, and she would have had a much better chance of recovering fully from the lumbar aspects of the abscess.

The defendants argued that there was no evidence plaintiff’s condition was exacerbated by a delay in surgeries to treat her preexisting abscesses and in any event the pain and suffering award was excessive. They noted that plaintiff moved to Georgia in 2012 where, that year, her then treating physician found her gait to be normal and that in 2013 he found her neck to be supple and without pain on movement. Further, they noted that plaintiff took no pain medication, exercised regularly and was able to walk unassisted with shopping bags in her arms.

Inside Information:

  • Plaintiff had treated with the defendant pain management physician in November 2009 to address complaints of upper thoracic pain. She was then administered six to nine trigger point injections over the course of two months.
  • Two other private doctors were significantly involved in plaintiff’s treatment – the surgeons who operated on her spine. There was evidence that these doctors delayed in the diagnosis and treatment of plaintiff’s cervical abscesses but they were not named as defendants so their percentages of fault, if any, were not determined by the jury.

 

 

 

On January 17, 2015, Nicholas Avissato was stopped at a red light in Staten Island when his Nissan Maxima was struck in the rear by a Jeep Grand Cherokee driven by Andrew McDaniel. In Mr. Avissato’s ensuing lawsuit, his motion for summary judgment as to liability was granted and the matter proceeded to a trial on the issue of damages only.

The Richmond County jury returned a verdict finding that the accident caused plaintiff’s alleged shoulder and neck injuries and that the injuries met the permanent consequential limitation serious injury threshold set forth in Insurance Law Section 5102. The jury awarded plaintiff pain and suffering damages in the sum of $12,500 (all past – two years).

In Avissato v. McDaniel (2d Dept. 2019), the appellate court agreed with plaintiff that the pain and suffering damages verdict was:

  1. contrary to the weight of the evidence,
  2. inconsistent with the jury’s finding that plaintiff’s injuries are permanent, and
  3. inexplicably low

The court ordered that that case be remitted to the trial court for a new trial on the issue of pain and suffering damages.

Here are the injury details:

  • shoulder – partial thickness rotator cuff and biceps tendon tears
  • neck – disc bulges at C6-7

Plaintiff, a 39 year old Federal Express Company driver and route owner, testified that his shoulder pain is constant and debilitating leaving him unable to lift as many packages as he used to, resume recreational activities such as cardio kickboxing or pick up his young children without pain.

The defense argued at trial and on appeal that the accident was merely a “tap in the rear” causing minimal damage to the cars and noted that plaintiff declined medical attention at the scene, instead driving his car on to visit his grandmother at a hospital (where he did not mention his accident or seek any medical attention). The defense produced an expert radiologist who reviewed MRI reports from a week after the accident and argued that plaintiff’s injuries were not caused by the accident but instead were degenerative due to a lifestyle that had included kickboxing and frequent lifting of packages on his job.

Plaintiff testified that he first began to feel pain from the accident the next morning but conceded that he did not seek medical attention for his injuries until three days later. He contended that the MRI reports from within a week of the accident clearly disclosed traumatic injuries from the accident and that he’d never had symptoms or sought any medical treatment for these injuries before the accident.

Plaintiff’s pain management physician testified that his shoulder (with a 10% loss of internal rotation) and neck injuries and pain were caused by the accident, they will worsen and they are permanent. The doctor administered cervical steroid injections and said that plaintiff may require more in the future as well as arthroscopic surgery for his shoulder.

Inside Information:

  • In his closing argument, plaintiff’s attorney asked the jury to award $50,000 for past pain and suffering damages plus $76,000 for the future.
  • Plaintiff missed only about thee days of work and made no lost earnings claim.

On May 20, 2008, Alexander Nayberg was stopped at a red light in Garden City when two other cars collided in the intersection and one of them struck Mr. Nayberg’s car in the rear.

In the ensuing litigation, a Nassau County jury found that the two colliding drivers were each 50% at fault for the accident and Mr. Nayberg’s injuries and they awarded pain and suffering damages in the sum of $1,600,000 ($600,000 past – six  years, $1,000,000 future – 20 years).

In Nayberg v. Nassau County (2d Dept. 2017), the appellate court affirmed the damages awards.

Here are the injury details:

  • herniated disc at C6-7 requiring cervical discectomy and fusion surgery three years later with the insertion of a plate and four titanium screws

  • additional cervical fusion surgery required in future at levels(s) above and/or below C6-7
  • fractured teeth and bridge requiring seven extensive dental  procedures including extractions, implants and bone grafts

Plaintiff, 54 years old when the accident occurred, had been employed at Bloomingdale’s earning $70,000 a year as an operating director in its restaurant division for seven years until a few months before when he was laid off in an economic downturn. He then formed his own construction company and  one week before the accident, he was offered his first job but he was physically unable to take it. When this case was tried, plaintiff was still in pain, unable to help his wife with household chores, pick up anything more than 10 pounds or engage in construction work.

The jury also awarded plaintiff, and the appellate court affirmed, damages  for lost earnings in the sum of $773,751 ($447,858 past – six years, $325,893 future – 16 1/2 years). The defense argued that the entire lost earnings award was speculative and should be vacated because it was based upon plaintiff’s expected lost income from a start-up business. The appellate court rejected the argument noting that plaintiff established this claim with reasonable certainty through his own testimony and that of an expert economist and that the defendants failed to submit any evidence in opposition.

The jury also awarded damages for future medical expenses (for additional spinal surgery) in the sum of $200,000 (10 years) and future dental expenses in the sum of $25,000 (two years).

Inside Information:

  • There was no award for loss of consortium damages claimed by Mr. Nayberg’s wife.

On March 14, 2013 John Gore was stopped at a red light in Pleasantville when a car from behind, driven by Melissa Cardany, struck his car. Mr Gore, then 47 years old, was taken by ambulance to the local hospital where he complained of pain in his neck, back and left shoulder.

At the time of the accident, Mr. Gore was in the course of his employment, driving several teenage residents of Jewish Childcare Association in Pleasantville (pictured above).

Gore sued the other driver seeking money damages for his pain and suffering, lost earnings and medical expenses related to the accident. On November 5, 2014, he was granted summary judgment as to liability and the matter proceeded to a trial on damages only.

The Westchester County jury determined that plaintiff’s injuries did not meet any of the threshold categories under Insurance Law Section 5102 and they accordingly awarded him nothing at all for pain and suffering (or future medial expenses). They did, though award him damages for  lost earnings in the sum of $906,000 ($156,000 past – three years, $750,000 future – 15 years).

The defendant made a post-trial motion asking the judge to set aside the verdict and direct judgment in her favor as a matter of law or, alternatively, to direct a new trial. Essentially, the defendant argued that because the jury found that plaintiff had not sustained a permanent or significant injury, and was not entitled to any future medical expense award, the award of $906,000 for lost earnings was speculative and there should be no lost earnings award at all. Plaintiff, who never returned to work  (he’d been a residential supervisor at a home for at risk teenagers) argued that there was sufficient medical testimony to establish that he was disabled and permanently unable to perform his job duties.

The trial judge granted the defendant’s motion and set aside the verdict as to all damages.

In Gore v. Cardany (2d Dept. 2018), the appellate court reinstated the award for past lost earnings in the sum of $156,000 while affirming the trial judge’s decision to vacate the award for future damages.

Here are the injury details:

  • treated and released from the ER on the day of the accident and same five days later at a different hospital
  • chiropractic treatment began 11 days after the accident and continued for about two years
  • three epidural injections in lower back and neck in connection with bulging discs
  • left shoulder arthroscopic surgery on 4/29/14

Defense doctors testified that plaintiff’s shoulder complaints were degenerative and pre-existing (in view of osteophytes as shown on an MRI) and he was not disabled either before or after his surgery which was merely a shaving of the congenitally deformed acromion and a debridement of some inflamed tissue. They also contended that plaintiff’s neck and back complaints were non-accident related, degenerative and typical for a man of plaintiff’s age. Post-trial, Plaintiff did not contest the jury’s findings as to Insurance Law Section 5102 and their resulting decision to award no damages for pain and suffering.

Plaintiff had been earning $52,000 a year and his job entailed supervising adolescents but there was no testimony that it involved heavy labor or heavy lifting and none of his doctors testified that they advised him to stop working permanently. Plaintiff testified that his position had been eliminated about six months after the accident and his on-line searches for new employment had been fruitless.

Inside Information:

  • Defense counsel argued in his summation that plaintiff was entitled to no award at all for any damages; plaintiff’s counsel requested $450,000 for pain and suffering damages plus $900,000 for lost earnings.
  • There was no expert vocational rehabilitation testimony.

In 1985, Alan Newton was convicted of serious crimes in two separate prosecutions for which he received lengthy consecutive prison terms. He was exonerated of the second conviction (for rape, robbery and assault) and on July 6, 2006 he was released from prison after having served 22 years in jail (10 years on the first conviction – for attempted  rape of a child – and 12 years on the second, wrongful conviction).

After his release, then 45 years old, Newton commenced a federal court  lawsuit against the City of New York and certain of its employees for pain and suffering damages from his wrongful incarceration due to the defendants’ failure to produce the rape kit that eventually exonerated him. He was ultimately awarded $12,000,000 for 12 years (the last 12 of his 22 years of incarceration, since the parties agreed that Newton would have served the full 10 years on the first conviction, which was not overturned).

Newton also sued New York State in the Court of Claims for the damages that were not addressed in the federal court case:

  • four years of past pain and suffering damages (i.e., 22 years minus 12 years compensated for in the federal case minus six years that the parties agreed should be considered as the time served on the first conviction),
  • future (post-release) pain and suffering, including psychological damages,
  • past and future lost earnings, and
  • future medical expenses

The judge in the Court of Claims action awarded plaintiff pain and suffering damages in the sum of $1,200,000 for the four years of wrongful incarceration not covered by the federal suit plus $250,000 for past lost earnings. He declined to make any awards for future lost earnings or medical expenses.

In Newton v. State of New York  (1st Dept. 2018),  the Court of Claims judge’s awards were affirmed, $104,000 was awarded for future medical expenses and the case was remanded for a determination on the issue of plaintiff’s post-incarceration pain and suffering. As set forth in the appellate court decision, there was sufficient evidence that Mr. Newton was entitled to post-incarceration and future psychological damages for injuries attributable to his extended incarceration on the wrongful conviction beyond the six-year term he had served on the other unrelated conviction.

Plaintiff’s claim for post-incarceration pain and suffering damages was based upon his testimony that he had been suffering from chronic depression since his release from prison. His psychiatrist testified that Newton met the criteria for dysthymic disorder, otherwise known as persistent depressive disorder, involving significant, chronic depression that it is likely to continue into the future and that it resulted from his lengthy incarceration. The $104,000 award for future medical expenses was based directly upon the psychiatrist’s testimony that plaintiff needs five years of weekly psychotherapy to address his chronic depressive disorder. The State did not present any expert testimony to rebut plaintiff’s future pain and suffering damages claim.

Inside Information:

  • In the federal court lawsuit, the jury awarded pain and suffering damages in the sum of $18,000,000 but that was determined to be excessive and reduced to $12,000,000.
  • After his release from prison, Newton was offered a scholarship at City University of New York and graduated with a bachelor’s degree in business administration.

On December 9, 2011 Juan Munoz was working for a construction company at 241 Fifth Avenue in Manhattan when he fell through the partially demolished fourth floor to the third floor  sustaining injuries to his knee, hip and wrist.

241 Fifth Avenue

In his ensuing lawsuit against the building’s owner and general contractor, Mr. Munoz was granted summary judgment on the issue of liability pursuant to Labor Law Section 240(1) and the matter proceeded to a trial on damages only. The Queens County jury awarded plaintiff pain and suffering damages in the sum of $709,000 ($80,000 past – four years, $629,000 future – 50 years).

Both parties appealed. Defendants argued that (a) the case should be dismissed in its entirety because plaintiff was a recalcitrant worker whose own conduct was the sole proximate cause of his accident and injuries and  (b) the future damages award was excessive. Plaintiff countered that (a) summary judgment on liability was appropriate and (b) the future damages award was inadequate.

In Munzon v. Victor at Fifth, LLC (2d Dept. 2018), the judgments have been affirmed.

Here are the injury details:

  • Left Knee: fracture of the medial tibial plateau, torn ligaments, severely torn meniscus
  • Left Hip: diffuse posterior labral tear
  • Left Wrist: partially torn small ligaments (requiring a brace for seven months) – pain resolved within two years

On March 16, 2012 plaintiff underwent left knee arthroscopic surgery to reconstruct his anterior cruciate ligament with a patella tendon autograft, as well as a meniscectomy and chondroplasty.

Plaintiff attended physical therapy three times a week for 11 months but, on February 8, 2013 he underwent a  second arthroscopic surgery which involved debridement of damaged tissue (followed by eight more months of physical therapy). He ambulated only with a brace or cane for about two years when he finally returned to work.

At trial in February 2016, plaintiff claimed he still had intermittent hip pain but his knee caused him daily pain and required occasional use of a cane. His treating orthopedic surgeon testified that Mr. Munoz, then 30 years old, had developed osteoarthritis in his knee and would by the age of 40 require total knee replacement surgery.

Plaintiff did not require surgery for either his hip or wrist injuries and his physical therapy focused almost entirely on his knee injury. The defendants argued that in view of the paucity of treatment regarding plaintiff’s hip and wrist, a good recovery from his knee injury, plaintiff’s return to work, the lack of objective medical proof of osteoarthritis and pre-existing repetitive stress from construction work, the award for future pain and suffering was excessive.

Plaintiff argued that the future damages award was inadequate in view of his need for total knee replacement surgery, continuing pain and inability to engage in many activities he had previously enjoyed such as exercising, playing soccer and taking long walks.

Inside Information:

  • Plaintiff’s pre-verdict settlement demand was $1,000,000 against an offer of $200,000.
  • The jury returned its verdict in one hour.

 

On August 14, 2007 Remigiusz Nawrocki was working for a plumbing contractor at a construction site at 205 Huron Street in Brooklyn. While on a ladder drilling holes in a wall, Mr. Nawrocki, then 28 years old, fell to the ground sustaining significant jaw injuries.

At an inquest on December 9, 2015 in his ensuing lawsuit against the owner of the premises (whose answer to the complaint was stricken because of repeated failures to appear at court conferences), a judge awarded plaintiff pain and suffering damages in the sum of $50,000 ($25,000 past – eight years, $25,000 future – unspecified).

Plaintiff appealed, arguing that the damages award was inadequate. In Nawrocki v. Huron Street Development LLC  (1st Dept. 2018), the pain and suffering award was increased to $500,000 ($250,000 past, $250,000 future).

Here are the injury details:

  • open mandible and condylar fractures and impacted tooth
  • facial lacerations requiring sutures and plastic surgery
  • six day hospital admission
  • open reduction and internal fixation with wires, screws and a six hole plate

  • jaw wired shut and unable to eat without straw for eight weeks
  • surgical removal of wires and screws
  • medical treatment completed within three months of the accident but plaintiff claimed continuing pain and had some resulting scars

 

 

On December 15, 2011, Charlotte Thompson was a front-seat passenger in a minivan involved in an accident with another vehicle at the intersection of Elm Drive and Pinewood Road in Roslyn. The other driver was found to be at fault for the accident which caused shoulder injuries to the then 29 year old Ms. Thompson.

In her ensuing lawsuit, Thompson was awarded pain and suffering damages in the sum of $1,150,000 ($400,000 past – four years, $750,000 future – 25 years). The Bronx County trial judge agreed with the defense that the award was excessive and it was reduced to $550,000 ($300,000 past, $250,000 future).

Plaintiff appealed; however, in Thompson v. Toscano (1st Dept. 2018), the reduction to $550,000 was affirmed.

Here are the injury details:

  • Plaintiff declined medical attention at the scene; emergency room treatment next day with injection and medication for pain
  • Follow-up treatment over seven months with orthopedic surgeons, physical therapy and additional cortisone injections
  • Arthroscopic surgery on 9/19/12 to repair labral tear

  • Additional six months of physical therapy
  • 35% permanent loss of range of motion
  • Adhesive capsusulitis (frozen shoulder)
  • Three keloid scars at surgical site
  • Repeat arthroscopy needed within five years to break up scar tissue (if no improvement in plaintiff’s condition)

The defendant’s expert orthopedic surgeon testified that the intra-operative photographs of plaintiff’s shoulder were unclear as to the presence of a labral tear and, in any event, there were no findings on them that “could contribute to the plaintiff’s motor vehicle accident.” Since the expert’s exam took place only a month after plaintiff’s surgery, the expert could not examine plaintiff’s shoulder and did not measure range of motion because plaintiff’s arm was still in a sling.

Inside Information:

  • The lawsuit was tried in Bronx County because that was the county of plaintiff’s residence.
  • Before plaintiff came to the U.S., she’d been the victim of a police crime in Jamaica where she was assaulted, raped and then sustained a gunshot wound to her face requiring complex jaw surgeries. In his opening statement, plaintiff’s attorney mentioned that his client is “on political asylum here from Jamaica.” The judge refused to allow any further mention of the asylum issue.

 

Anthony Bianco was born on December 31, 1999 at Winthrop University Hospital in Mineola. He was delivered by means of a vacuum extraction under the supervision of Steven Sherwin, M.D., an obstetrician-gynecologist.

Years later, Anthony’s mother, Mauro Bianco, commenced a medical malpractice lawsuit against her physician claiming that Dr. Sherwin improperly performed the vacuum extraction and that as a result Anthony sustained brain injuries which caused permanent neurocognitive deficits. A Nassau County jury agreed and awarded pain and suffering damages in the sum of $1,750,000 ($250,000 past – 15 years, $1,500,000 future – 60 years).

In Bianco v. Sherwin (2d Dept. 2018), both the liability and damages verdicts have been upheld.

Here are the injury details:

  • upon delivery, Anthony was noted to have soft tissue swelling and blood under the skin of his skull, vacuum marks and lacerations on his head and a two inch by two inch large cephalohematoma on his head
  • a CT scan revealed a subdural hematoma
  • at the age of three years, Anthony had difficulties understanding his speech, displayed language problems and underwent a procedure to improve tongue mobility and improve his speech
  • at the age of seven years, Anthony was diagnosed with an unspecified brain dysfunction because he was not developing normal speech and language skills
  • in second grade, Anthony was in a special education class, struggling and receiving special assistance to try to keep up in school
  • permanent absence of higher level of thinking, according to plaintiff’s expert neuropsychologist, with low average intelligence and mildly impaired memory

Plaintiff’s expert testified that Anthony will never be capable of holding other than an entry-level job; however, the jury declined to award any damages for impairment of earning capacity.

Defendants’ medical experts contended that there was no malpractice, the delivery was properly performed and that it was not possible to have brain damage that only manifested itself years later in learning deficits.

Inside Information:

  • Anthony did not testify or even appear in court; nor was his deposition testimony read to the jury.
  • Plaintiff’s expert conceded that the injury in this case is “microscopic” and there was no blood in the brain itself.
  • Mrs. Bianco continued to treat with Dr. Sherwin and he delivered her daughter in 2002.