On June 29, 2014, Elza Garzon underwent an endoscopy (a procedure used to visually examine the upper digestive system with a tiny camera on the end of a long, flexible tube) performed by Steven Batash, M.D. during which a portion of her small intestine was perforated.
She sued the doctor for medical malpractice and, after ruling in her favor on liability, the Queens County jury awarded pain and suffering damages in the sum of $2,500,000 ($1,500,000 past – 2 3/4 years, $1,000,000 future – 33 1/2 years).
In his post-trial motion, the defendant argued successfully that the award was excessive and the trial judge ordered a reduction of the pain and suffering award to $650,000 ($550,000 past, $100,000 future). He did not challenge the liability finding against him.
In Garzon v. Batash (2d Dept. 2020), the appellate court ruled that the trial judge’s reduction of the future damages award was too steep and it increased that portion of the award to $500,000 with the result that the pain and suffering award stands at $1,050,000 ($550,000 past, $500,000 future).
Here are the injury details:
- extreme abdominal pain in recovery room following endoscopy and upon discharge to home that day requiring return to hospital emergency room overnight
- emergency laparotomy performed next day to repair duodenal diverticulum
- nine day hospitalization following the laparotomy with Foley catheter, and Jackson-Pratt, nasogastric and jejunostomy tubes and intravenous pain medication
- one more overnight hospitalization seven days after discharge for vomiting and stitches removal
- two moths confined to home and six weeks physical therapy to restore stomach muscles strength
- permanent seven and a half inch abdominal surgical scar
- risk of future bowel obstruction due to surgical adhesions
The defendant argued that Ms. Garzon (46 years old at the time of the endoscopy):
- made a very good recovery from the laparotomy,
- had no significant complaints of ongoing pain or any disability,
- does not suffer from the abdominal scar and that it’s barely visible, and
- had not to date suffered from any of the intestinal problems such as a bowel obstruction that her expert testified might occur in the future
- In his summation, plaintiff’s attorney asked the jury to award pain and suffering damages in the sum of $2,350,000 ($150,000 less than the jury awarded).
- Defendant argued that the jury verdict was based upon animosity toward him and sympathy for the plaintiff and that the proper award for plaintiff’s injuries is in “the low to mid six figure range.”