On March 22, 2006 Alice Silverberg was admitted to Maimonides Hospital Center in Brooklyn. Up to that point, she was an active 78 year old woman in generally good health but with a prolapsed uterus which brought her to the hospital for an elective vaginal hysterectomy.

Anamaria Guzman, M.D., attempted to anesthetize Ms. Silverberg so the operation could commence but the doctor was unable to place the endotracheal tube (ETT) in the trachea. Another anesthesiologist was called in to assist but he too was unable to intubate the patient. Three attempts were made but each time the instrument was placed into the esophagus (instead of the trachea).

Finally, Dr. Guzman was able to successfully intubate her patient. The hysterectomy then proceeded uneventfully; however, the unsuccessful attempts to intubate had already perforated the esophagus.

Post-operatively, Ms. Silverberg suffered from several unanticipated complications including:

Here is the anatomy involved in this case:

Ms. Silverberg remained hospitalized for almost a month until she was transferred to nursing homes where she remained for over a year until she was sent home.

In her ensuing lawsuit, Silverberg v. Guzman (Supreme Court, Kings County; Index # 24076/06), Ms. Silverberg claimed that the doctors were negligent in perforating her esophagus and that they thus caused her to undergo additional surgeries and a year of confined medical treatment unable to walk or feed herself as well as permanent dementia (the infection caused her to suffer hypoxic brain damage).

On April 1, 2009, the jury found that Dr. Guzman departed from accepted medial practice (i.e., she was negligent) in failing to read notes in her patient’s chart and in failing, post-operatively, to communicate to plaintiff’s other doctors that medical instruments had been placed in the esophagus, thereby causing a delayed diagnosis of the esophogeal perforation for several days.

The jurors then awarded plaintiff pain and suffering damages in the sum of $4,500,000 (allocated entirely to past pain and suffering with nothing at all awarded for any future period).

The defendant appealed arguing:

  1. there was no proof connecting the delayed diagnosis to plaintiff’s damages and
  2. alternatively, that the pain and suffering award was excessive.

In Semel v. Guzman (2d Dept. 2011), the appellate court has now upheld the liability finding while ordering a reduction in damages from $4,500,000 to $2,000,000 (all for past pain and suffering).

Here are additional injury details:

  • Three surgeries after the hysterectomy: to repair the esophogeal perforation, to place an esophogeal stent and to remove the stent.
  • During most of the year in nursing homes, plaintiff was tube-fed, wheelchair-bound and unable to walk or dress herself.
  • As of the trial date, plaintiff was fully ambulatory and competent to testify but contended she could no longer manage her financial affairs, recognize family members or travel independently.

Inside Information:

  • The appellate judges did not discuss the main damages contention advanced by the defendant – that plaintiff failed to prove precisely which harms were caused by the delayed diagnosis as opposed to the perforated esophagus.
  • Plaintiff’s attorney asked the jury to award $5,000,000 for past pain and suffering and $2,000,000 for the future.
  • In view of her near complete recovery (plaintiff had resumed many of her activities of daily living, including caring for herself, food shopping and cleaning her home), plaintiff was denied any recovery at all for future pain and suffering damages.
  • Ms. Silverberg died of unrelated causes in February 2011 and the case name was changed to reflect the substitution of her executors as plaintiffs.