On October 12, 2007, Tina Holstein delivered her third child, without complications, at Community General Hospital in Syracuse. Within a couple of hours, she was nauseous and vomited so the nurse on duty administered an intramuscular injection of Phenergan (an anti-emetic).

Generally, an injection into the buttocks is delivered using the upper outer quadrant, so as to avoid the sciatic nerve:

In Mrs. Holstein’s case, the injection was delivered in the wrong location – hitting the sciatic nerve – and she ended up with unremitting pain in her back and down her leg.

The sciatic nerve is the largest and longest single nerve in the body, about as big around as a man’s thumb at its largest point. It originates in the lower spine as nerve roots exit the spinal cord and extends all the way down the back of the leg to the toes.

In an ensuing lawsuit against the hospital (and the nurse who gave the shot), on May 28, 2010, an Onondaga County jury found medical negligence against the defendants and awarded the then 34 year old Holstein pain and suffering damages in the sum of $1,690,000 ($140,000 past – 2 1/2 years, $1,550,000 future – 50 years).

The defense claimed in a post-trial motion that (a) there was insufficient evidence to warrant the jury’s finding that the nurse was negligent and (b) the verdict was excessive. The trial judge denied the motion in all respects.

Last week, the verdict was affirmed on appeal in Holstein v. Community General Hospital (4th Dept. 2011).

The appellate court neglected to mention any of the injuries and disabilities sustained by the plaintiff:

  • pain, especially in her back and leg, so bad and constant that at times she wished she could get her leg amputated
  • altered sensation, excruciating sensitivity and burning
  • difficulty sleeping, waking up several times a night
  • unable to sit or stand for any extended period of time
  • inability to bend
  • inability to play with her kids

While plaintiff required narcotic medication for her pain and her medical expert testified that her conditions are permanent and will get progressively worse, the most significant treatment she’d undergone was a series of nerve blocks, she’d undergone no surgery (though a surgically implanted spinal cord stimulator was recommended) and there was no claim that she’d need any in the future.

The defense argued that plaintiff’s injuries were not serious – that she was hardly limited in her daily activities (she’d returned to work as a nurse, albeit in a limited capacity), was not debilitated in any manner and her complaints of pain were subjective only.

A nerve conduction study, performed just before trial, though, showed positive findings of S1 radiculopathy (a condition due to a compressed nerve in the spine that can cause pain, numbness, tingling or weakness along the course of the nerve). In view of a prior negative finding, this, plaintiff’s counsel argued, was objective evidence indicating that Mrs. Holstein’s condition was worsening.

Inside Information:

  • The defense argued on appeal that the trial judge failed to poll the jury, thus requiring a new trial. Three of the appellate court judges rejected that argument and voted to affirm, while two dissenters agreed with the defense and would have sent this case back for a new trial on the issue of polling (where the trial judge asks each individual juror if the verdict set out on the verdict sheet – already signed by each – is indeed his or her verdict). This 3-2 split means that the Court of Appeals (New York’s top level appellate court) will be asked to resolve the polling issue (about which we wrote in 2009, here, when the Court of Appeals ruled in Duffy v. Vogel). NOTE: On November 20, 2012, the Court of Appeals affirmed the intermediate appellate court’s order.
  • The jury verdict was reached at about 4:30 p.m. on the Friday of Memorial Day weekend, four hours after beginning deliberations and within only 40 minutes or so of having been given a read back of medical testimony. This, defense counsel argued (unsuccessfully), was evidence of juror confusion and a rush to judgment.
  • The $1,690,000 verdict is significant in view of the paucity of objective proof of plaintiff’s injuries and the fact that plaintiff conceded there will be no surgery required. This is an outstanding result for plaintiff’s counsel, Jeff D. DeFrancisco, a leading medical malpractice lawyer from Syracuse.