On November 6, 2002 Miguel Erosa rushed to his local hospital in Queens complaining of unbearable pain in his stomach. It turns out he was suffering from appendicitis and he was admitted to the hospital where an emergency laparoscopic appendectomy was performed the next morning.
Mr. Erosa was discharged from the hospital three days later, received routine follow-up medical care twice and returned to work as a mailman three weeks after his surgery. Unfortunately, Mr. Erosa’s abdominal pain remained present and even got worse, so bad that on February 9, 2003 he underwent a second abdominal surgery.
It turns out that the first surgery had been negligently performed in that the surgeon failed to completely remove the appendix causing an infection (stump appendicitis) and the need for the additional surgery. In his medical malpractice lawsuit against the surgeon, Mr. Erosa was awarded pain and suffering damages in the sum of $1,200,000 ($950,000 past – 10 1/2 years, $250,000 future – 26 years).
The trial judge agreed with the defense that the award was excessive and ordered a reduction to $275,000 ($250,000 past – $25,000 future), an amount affirmed on appeal in Erosa v. Coomaraswamy (1st Dept. 2015).
As set forth in the appellate court decision, defendant’s negligence left plaintiff with a large abdominal scar. Here is a trial exhibit from the case illustrating the scar:
The plaintiff, then 41 years old, exhibited his scar to the jury and in summation his attorney characterized it as “horrific” but the trial judge, in his post-trial decision, stated that the scar, “while far from pleasant looking or desirable, falls significantly short of … horrific.” The appellate judges apparently agreed.
In addition to the scar, plaintiff’s injuries included:
- the need to undergo a second, more complicated, surgery (an open abdominal exploratory surgery) that would not have been needed but for the malpractice,
- a six day hospital admission for abdominal pain between the dates of the two surgeries and a 10 day admission for the second surgery,
- unable to return to work (as a letter carrier for the U.S. Postal Service) for almost three months,
- development of incisional hernia and painful internal scars following the second surgery, and
- several months of post-operative wound care.
Plaintiff testified that he was embarrassed by how he looked, refrained from going to the beach anymore, had been an avid athlete and could not return to playing handball and had digestive difficulties. The defense, though, noted that in the 10 years after the second surgery up to the date of trial, plaintiff had not gone to see any physician regarding his complaints.
- In his closing argument, plaintiff’s attorney asked the jurors to award pain and suffering damages in the sum of $1,550,000.
- Plaintiff’s wife was awarded loss of services damages (also referred to as loss of consortium) in the sum of $125,000 ($100,000 past – 10 1/2 years, $25,000 future – 26 years) but that sum has been reduced to $50,000 ($30,000 past – $20,000 future). Plaintiff’s testimony in this regard was scant (e.g., intimate relations with his wife had “gone low”) and conclusory and the trial judge stated that “[n]either plaintiff’s testimony nor his wife’s was particularly convincing as to the supposed deleterious effect on their lives together.”
- Before trial, plaintiff’s counsel made it clear to the judge that he would accept less than $150,000 to settle but defendants’ maximum settlement offer was $30,000.