A 31 year old administrative assistant had been feeling right flank pain for several weeks when she was referred to a surgeon who diagnosed her with symptomatic cholelithiasis (gallstones). Accordingly, on March 30, 2009, she  underwent a laparoscopic cholecystectomy (gallbladder removal surgery) at  Montefiore Medical Center in the Bronx. She was discharged to home that night.

Unfortunately, the woman returned to the hospital 10 days later complaining of severe pain radiating to her back as well as a fever, nausea, vomiting and chills. She was diagnosed with a perforated iliac artery that caused a pseudoaneurysm (a hematoma that occurs outside of an artery or vein) and a retroperitoneal hematoma. She was in a life-threatening situation and had to undergo emergency surgery to insert a stent into the artery. The surgery was successful and she was discharged from the hospital after three days.

A lawsuit was brought against the surgeon who performed the gallbladder surgery claiming that he deviated from acceptable medical practice when the needle he was using to probe into the gallbladder punctured the iliac artery. It took the Bronx County jurors only 40 minutes to return their verdict on February 13, 2013 finding malpractice had occurred and awarding past pain and suffering damages (four years) in the sum of $800,000.

The jurors were not presented the issue of future pain and suffering damages because the trial judge had ruled that there was insufficient medical evidence from plaintiff’s expert as to how any of her current complaints of pain were associated with either of her surgeries.

The defense argued that there was insufficient evidence to support the malpractice finding and Justice Norma Ruiz agreed and issued a  post-trial decision dismissing the case.

On appeal, though, in Padilla v. Montefiore Medical Center (1st Dept. 2014), the jury’s liability finding was reinstated although the damages award was reduced to $225,000.

The appellate court judges apparently agreed with the defense argument that plaintiff’s pain was limited in scope and duration and that her most significant pain occurred early in the post-operative period following the gallbladder surgery when she was expected to experience pain from the surgery itself. Also, there was no expert testimony associating continued pain following the resolution of the hematoma with the surgeon’s negligence so, the defense argued, there was no objective basis for awarding damages for pain and suffering more than one month post-stenting.

Following the vascular surgery, Ms. Padilla said she had groin and hip pain traveling down her right leg (that continued through to the date of trial and left her unable to run or perform at the gym cardiovascular activities she used to engage in two to three times a week) but she also was well enough to return to her social services job within about three weeks. At trial, she testified she took public transportation to work each day and was able to take care of her home (laundry, shopping, cooking and cleaning) and her nine year old daughter.

Inside Information:

• The jury of six included two emergency medical technicians and a volunteer worker at the the defendant hospital.
• Plaintiff’s pre-trial settlement demand was $60,000; her attorney asked the jury for $750,000.