On October 18, 2000, Olga Ortiz slipped on a concrete step on the top of the staircase leading to the Number 6 train at the 28th Street subway station at Lexington Avenue in Manhattan.
Ms. Ortiz, a nurse’s aide then 59 years old, fell down the entire staircase and landed at the bottom. A police officer arrived and called for an ambulance. Paramedics placed Ortiz on a stretcher and transported her to Bellevue Hospital where she received minor treatment before being released that day.
Claiming that she sustained a permanent back injury due to a broken and unsafe step that was missing a piece of cement, Ortiz sued the New York City Transit Authority (the subway station operator). The defendant, however, contended that the stairway was safe and properly maintained and that the accident was caused by plaintiff’s failure to watch her steps.
In September 2011, the jury found that the transit authority was liable for the accident and awarded pain and suffering damages in the sum of $400,000 ($300,000 past – 11 years, $100,000 future – 10 years).
On appeal in Ortiz v. New York City Transit Authority (1st Dept. 2013), the defendant’s claim that the award was excessive has been rejected and the $400,000 damage award has been affirmed.
Here are the injury details:
- herniated disc at L3-4
- bruised coccyx
- lumbar radiculopathy
- epidural steroid injections and 12 months of physical therapy and chiropractic treatment
- permanent back and coccyx pain
- inability to bend, walk, sit or lift without severe pain
The defense argued that plaintiff’s pain and limitations were due to a prior incident when, two years earlier, she sustained two herniated discs in her back attempting to lift a 200 pound patient at a nursing home. She’d undergone extensive chiropractic treatment and had continuing pain that was managed with injections up to and including the day of (but prior to) her subway fall.
Plaintiff’s treating orthopedic surgeon (first seen by her two weeks after she fell) acknowledged that she had prior problems with her back but he noted that her prior injury had not significantly interrupted her ability to work. He testified that her condition was “significantly exacerbated” by the subway stairs accident which, he said, caused compression of her disc which in turn caused it to expand into the nerve and led to radiating pain down her leg. He concluded that she was completely disabled.
Plaintiff’s doctor had suggested that plaintiff be seen by a spinal surgeon “for possible excision or removal of the coccyx” and he opined that plaintiff will need continued care and that laminectomy and lumbar fusion surgery was “[certainly] … an option.”
- Before trial, plaintiff would have accepted a settlement of $50,000; however, the defendant’s offer was only $1,000. In summation, plaintiff’s counsel asked for $1,000,000.
- After examining plaintiff but before trial, defendant’s medical expert died. Over plaintiff’s objection, a new orthopedic surgeon was allowed to examine her; however, the defense did not call the new doctor to testify (his report concluded that plaintiff suffered from a residual disability) and the judge gave a so-called missing witness charge to the jury.
- At the time of trial, Ms. Ortiz had not had any treatment for the injuries alleged in the subway accident for three years (though she’d returned to her orthopedic surgeon shortly before trial for consultation and review).