On April 22, 2009, Evan Martin, a 13 year old eighth grade student, was injured at school in Port Jefferson after a teacher assigned him and another student the task of closing a sliding gate to the school parking lot. The gate was a large chain-link structure measuring about 16 feet wide and six feet tall which slid back and forth by a rolling mechanism. Two of Evan’s fingertips were severed by the wheel mechanism at the top of the gate.

In his ensuing lawsuit against the school, a Suffolk County jury ruled that the defendants (the school and an adjacent church that shared the parking lot) were fully at fault for the accident and awarded pain and suffering damages in the sum of $600,000 ($450,000 past – five and a half years, $150,000 future – 55 years).

In Martin v. Our Lady of Wisdom Regional School (2d Dept. 2017), both the liability and damages verdicts have been affirmed.

In the liability phase of the trial, plaintiff contended that the gate was dangerous and students should not have been permitted to operate it without supervision, especially in view of the fact that othetr students had been injured in the past in a similar manner.

As noted in the court’s decision, the tips of Evan’s middle and ring fingers were severed. Here are the injury details:

  • traumatic amputations of the tips of nondominant hand’s index and ring fingers, including the skin, the nail bed and portions of the bones
  • emergency reattachment surgery using a composite replantation technique in suturing the fingertips back in place
  • necrosis necessitating surgical removal of the fingertips – leaving plaintiff with losses of one-half inch in the length of his ring finger and three-eighths of an inch of his middle finger
  • additional surgery to (a) remove dead skin and (b) apply skin grafts
  • fourth surgery, on 12/7/09 – revision of left finger deformity and complex repair with portion of bone contoured for appropriate shaping
  • hyperbaric treatments; physical therapy for six weeks
  • permanent pain, numbness, tingling and deformity with difficulty in gripping small objects

In addition to his physical injuries, plaintiff presented testimony from an expert psychiatrist who evaluated Evan in 2012 and opined that Evan experienced significant emotional trauma and then suffered from acute stress disorder and that his permanent physical defects will have psychological implications for the rest of his life.

Inside Information:

  • In their summations plaintiff’s counsel asked the jury to award $1,200,000 while defense counsel made no recommendations as to the amount of an award.
  • The only medical witness for the defense was an orthopedic surgeon who acknowledged that Evan continued to suffer from tenderness, deformities, decreased range of motion and decreased sensation.
  • Plaintiff’s expert psychiatrist testified that Evan met the criteria for post-traumatic stress syndrome (PTSD); however, the trial judge instructed the jury to “strike any reference” to that diagnosis because when Evan was evaluated in 2012 the diagnosis was acute stress disorder not PTSD.

 

 

 

 

On March 9, 2006, Robert Obey fell onto the tracks at a subway station in Manhattan. Shortly thereafter, a train ran over his left foot.

The Scene of the Accident

Mr. Obey, then 51 years old, sued claiming that the transit authority’s conductor was negligent because he could have stopped the train in time to avoid the accident.

The defense claimed that the motorman in question did nothing wrong, plaintiff may have been on the tracks for 45 minutes or so and there was insufficient evidence as to which of many trains may have struck him and the accident was plaintiff’s fault in view of:

  1.  his admission that he attended a Methadone clinic before the incident (for his longstanding heroin addiction),
  2.  testimony, from a psychologist plaintiff treated with two days after the fall, that he was “high on” psychoactive prescription drugs that can cause dizziness and fainting,
  3.  the fact that he had little recall of how the accident happened, and
  4.  plaintiff’s many and significant contradictions throughout the litigation.

On January 23, 2014, a Manhattan jury determined that liability should be split – 40% to the defendant and 60% to plaintiff.

The same jury then awarded plaintiff pain and suffering damages in the sum of $450,000 ($250,000 past – eight years, $200,000 future – 20 years). They also awarded damages for medical expenses in the sum of $1,500,000 ($1,000,000 past, $500,000 future).

The trial judge agreed with the defense that the verdict should be set aside and the case dismissed because there was insufficient evidence of any fault at all on the part of the motorman. Plaintiff’s cross-motion to increase the pain and suffering damages award was denied as moot. The trial judge’s decision was affirmed on appeal (by a vote of 3-2) but the Court of Appeals reversed and reinstated the verdict.

The intermediate appellate court then reviewed the case and in Obey v. New York City Transit Authority (1st Dept. 2017) declined to modify the damages award.

As indicated in the various decisions, plaintiff sustained a partial foot amputation that required emergency surgery and extended hospitalization and rehabilitation. Here are the injury details:

  • severe crush injury to left foot with obvious deformity, complex open fractures and multiple dislocations of first three metatarsal bones
  • emergent surgical completion of transmetatarsal amputation with Mayo scissors to cut remaining connective tissue between the tarsal bones
  • seven irrigation and debridement procedures
  • hospitalized for three weeks
  • surgical revision of traumatic mid-foot amputation to Chopart’s amputation with removal of additional bones and harvesting of a split-thickness graft to cover and close the wound
  • discharged from hospital to rehabilitation center for seven years
  • continuing and chronic pain
  • can walk only with an ankle-foot orthosis, with a cane and only for one-half hour a day

foot amputations

Plaintiff’s medical expert opined that Mr. Obey needs a below-the-knee amputation to treat his chronic wound drainage but plaintiff testified he is apprehensive and has no plans to submit to the surgery.

Inside Information:

  • The past medical expense award was agreed upon by the parties based upon actual bills; they are subject to a collateral source hearing/reduction.
  • Robert Goldstein, M.D., an orthopedic surgeon, testified for plaintiff as a non-treating expert; there was no expert for the defense.
  • In his closing argument, plaintiff’s attorney suggested a 50-50 split on liability and asked the jury to evaluate pain and suffering damages at $5,000,000.
  • One month before this incident, plaintiff jumped onto a subway station’s tracks to retrieve a fare card; when confronted by a police officer at the time, he claimed he’d fallen onto the tracks. Defense counsel suggested plaintiff was suicidal.

On December 3, 2004 Alfonso Marin had just dropped off co-workers at their construction site when he was standing behind his parked van at 172nd Street and Broadway in upper Manhattan and an SUV smashed into him, pinning his left leg against the van and crushing his femur.

Marin, then 40 years old, was rushed to the local hospital with a cold, pulseless leg and was diagnosed with severe trauma and massive degloving to his left lower extremity with multiple comminuted segmented fractures,  a complete transection of the bone and lacerated blood vessels, including the major artery and vein, causing extensive blood loss.

blood supply - legs

In the operating room, doctors initially placed an external fixation device on the femur. Then, they performed a revascularization procedure (to try to restore blood flow to the lower leg) and a fasciotomy (to relieve swelling and help blood travel into the vessels toward the foot).  Finally, though, after several hours, Marin’s leg was surgically amputated above the knee.

Marin sued the driver who hit him and recovered his full policy limits of $100,000. He then sued the hospital and the doctors (employed by the hospital) claiming that they prematurely abandoned their attempts to save his leg and should not have amputated it.

A Manhattan jury concluded that the vascular surgeon had departed from accepted medical practice when he decided that no sufficient measures would control plaintiff’s bleeding in his leg and proceeded with the amputation. The orthopedic surgeon was exonerated.

The jury then awarded plaintiff pain and suffering damages in the sum of $6,000,000 ($2,000,000 past – nine years, $4,000,000 future – 30 years).

In Marin v. New York City Health & Hosps. Corp. (1st Dept. 2016), both the liability and damages verdicts have been affirmed.

Defendants argued that due to the car crash plaintiff’s leg was already partially amputated when he arrived at the hospital and that heroic efforts to save the leg were made in the operating room but the leg was nonviable and could not be salvaged. That position was refuted by plaintiff’s experts who opined that plaintiff would have had a substantial chance (30-40%) of saving the leg if a Fogarty catheter had been used to reestablish circulation.

Fogarty-catheter

As to damages, defendants argued (unsuccessfully) that:

  • the trial judge improperly denied their request to have the jury apportion liability with the SUV driver (which, they contended, would have resulted in a complete or at least substantial reduction of the percentage of fault and thus the amount of damages they had to pay) and
  • the award was excessive because plaintiff would unquestionably have had significant permanent injuries regardless of any malpractice since his leg was crushed and “functionally amputated” from the impact.

Plaintiff conceded that his damages should be “less than an identically situated plaintiff whose entire injury was caused by the party-defendant” but argued, successfully, that the jury’s award was proper because the judge correctly charged the jurors that plaintiff “should be compensated only to the extent that [the jurors] find his condition was made worse” and not “for damage done to the leg prior to his arrival [at] the hospital.”

Here are the injury details:

  • above-the-knee amputation of left leg
  • placement of five prosthetic legs to date (with several more needed in the future)
  • shrinking stump and ulcers
  • constant “phantom” pain (despite prescription pain medications)
  • worsening prognosis as to ability to ambulate leading to wheelchair confinement in the future

above knee

Inside Information:

  • Plaintiff could not return to any type of construction work but was able to earn money by selling ices from a cart in the summer and churros in the winter.
  • The jury heard from life care plan experts for both sides and awarded economic damages in the sum of $1,652,755 for future medical and psychological care, medications, equipment and supplies, and physical therapy.
  • The vascular surgeon who was found liable testified that he had used the Fogarty catheter; however, there was no mention of the catheter in the medical records. Plaintiff’s trial counsel, Ryan Asher, stated in his closing argument that it was an “incredible moment” when one of the defendant’s experts testified that in his opinion the catheter had not been used.

On October 10, 2004, Donald Schultz twisted his ankle walking up the stairs at work (he was a 36 year old police dispatcher for the City of Tonawanda) and sustained a simple, non-displaced ankle fracture.  He was treated at the local hospital with a brace and instructed to follow up with an orthopedic surgeon.

Mr. Schultz treated with an orthopedic surgeon the next day and, due to unremitting and severe pain on the outside portion of his foot in the area of his fifth metatarsal (the “little toe”), he continued to treat with that surgeon for the next 13 months.

foot2

As the pain increased and continued, the doctor noted a concern for RSD (complex regional pain syndrome) and he performed two surgeries on Mr. Schultz’s ankle – first on May 13, 2005  to alleviate the non-union of the fracture and then on September 9, 2005 to tighten the ankle ligaments.

Mr. Schultz’s pain was intractable and unrelenting so on November 10, 2005, he sought out and came under the care of a new orthopedic surgeon. That doctor diagnosed avascular necrosis and on November 30, 2009 performed surgery on Mr. Schultz’s fifth metatarsal and two months later he amputated the head of that toe. The pain progressed, though, and the remaining stump of the toe was then amputated.

Many more surgeries were performed by the new surgeon – 12 in all –  including a below the knee amputation until finally, on October 6, 2009, Mr. Schultz underwent an above-the-knee amputation (performed by a third surgeon).

AboveKneeAmp-LG

Mr. Schultz sued his first two orthopedic surgeons claiming  that (a)  the first surgeon should not have performed the two surgeries on Mr. Schultz’s ankle in the face of a suspected diagnosis of RSD because doing so aggravated the RSD and (b) the second surgeon performed various surgeries that were contraindicated and either without a diagnosis or with an incorrect diagnosis.

On February 4, 2014, the Erie County jury found that only the second surgeon was negligent and they awarded pain and suffering damages in the sum of $6,000,000 ($2,000,000 past – eight years, $4,000,000 future – 20 years).

In Schultz v. Excelsior Orthopedics, LLP (4th Dept. 2015), both the liability and damages verdicts were affirmed.

Plaintiff’s orthopedic surgery expert (an instructor at the Yale School of Medicine for 30 years) opined that the second surgeon’s deviations from appropriate standards of care included the following:

  • the first surgery, on 11/30/09, was done without a definitive diagnosis to warrant it in a patient with a known pain syndrome
  • the second, third and fourth surgeries, on 1/25/06 (to remove the head of plaintiff’s fifth metatarsal), on 6/23/06 (amputation of the fifth metatarsal) and on 2/16/07 (amputation of the remainder of plaintiff’s fifth metatarsal), were not based upon a defined diagnosis and were not needed
  • surgeries on 3/21/07 and 3/17/08 (closing a wound and excising a neuroma) caused unwarranted infections
  • surgery on 10/1/08 (amputating plaintiff’s fourth toe) was based upon an erroneous diagnosis of bone infection or osteomyelitis
  • surgery to amputate plaintiff’s leg below the knee was done on a viable limb, without a bone biopsy and based upon an erroneous diagnosis of osteomyelitis

In addition to all of the foregoing, plaintiff’s injuries included:

  • five more surgeries or procedures after his above the knee amputation to assist with the fitting of his prosthetic leg and to deal with infection issues
  • extensive depression and anxiety requiring psychological treatment and medication and resulting in a suicide attempt
  • total disability from employment as of November 2009
  • stress leading to divorce from his wife one year before trial

In addition to damages for pain and suffering, plaintiff was also awarded and the appellate court affirmed damages for plaintiff’s loss of past and future earnings and benefits in the sum of $1,205,989 and approximately $1,100,000 for other future economic damages over 20 years (including $655,500 for prosthetic devices, $157,866 for medical supplies and $135,744 for medications).

Inside Information:

  • Plaintiff’s ex-wife was awarded $350,000 for her loss of services claim for the seven year period from the date of defendant’s negligence to the date the parties no longer resided in the same household. She testified that she became his primary caregiver with their young son and took over all household duties. Mr. Schultz’s treating psychologist testified that his medical problems contributed substantially to the divorce after 23 years of marriage.
  • In his closing argument, plaintiff’s attorney asked the jury to award pain and suffering damages in the precise sum – $6,000,000 – that they decided upon. He made no suggestion as to the loss of services claim.

On October 24, 2008 Robert Loja was working for a landscaping firm in Sleepy Hollow. Just after parking his employer’s truck on Benedict Avenue and unloading his lawn mowing equipment from his truck’s trailer, Loja was struck by a car driven by a young woman on her way to work. His legs were crushed between the car and his trailer.

15 - Google Maps
The Scene of the Accident

When he woke up in a hospital two days later, the 35 year old Loja learned that his left leg had been amputated above the knee.

In the ensuing lawsuit,  the driver contended that she was not at fault because there was a blinding sun glare and the roadway  was improperly and unsafely blocked off by plaintiff and his employer.

sun glare

The Westchester jury found the driver only 10% at fault while charging plaintiff with 30% of the fault and the landscaping company with 60%.

On January 27, 2012, the jurors awarded pain and suffering damages in the sum of $5,500,000 ($2,500,000 past – three years, $3,000,000 future – 18 years).

Plaintiff was also awarded $1,000,000 for future loss of earnings (18 years) and his 25 year old wife was awarded $1,000,000 for her loss of consortium claim ($500,000 past – three years, $500,000 future – 18 years)

Appeals were pursued by both the defendant and the landscaping company (in the case as a third-party defendant because plaintiff was barred under the Workers Compensation Law from suing his employer). Defendant argued that the damages awards were excessive whereas the third-party defendant  argued only that the liability verdict was against the weight of the evidence and that evidentiary errors required a new trial.

In Loja v. Lavelle (2d Dept. 2015), the appellate court affirmed all of the damages awards but shifted the liability apportionment as follows: 50% to defendant, 10% to plaintiff and 40% to third-party defendant.

The court decision mentions that plaintiff’s legs were pinned by the car underneath the trailer and that one of his legs was amputated as a result. Here are additional injury details:

  • left leg mangled crush injury, essentially a traumatic amputation
  • surgical removal of six inches of the lower left femur, i.e., an above the knee complete amputation
  • additional surgeries (a) to wash out the stump, remove ischemic skin and insert a vacuum assisted closure dressing for wound healing, (b) to replace dressings and insert a permanent inferior vena cava filter in the abdomen to prevent blood clots and (c) to graft skin from plaintiff’s hip to his left leg stump
  • right leg – severe instability of knee joint with compartment syndrome requiring emergency  external fixation and fasciotomy
  • right ankle – tears of the anterior talofibular, calcaneofibular and other ligaments
  • back – herniated disc at L5-S1 with radiculopathy
  • post-traumatic stress disorder and major depression with guarded prognosis; needs psychotherapy and medication
  • hospitalization for one month at Westchester Medical Center and then at its related Taylor Institute for Rehabilitation for another month
  • outpatient rehabilitation for three months at three more hospitals
  • continuing phantom pain in left leg (requiring lifetime pain medication) , ill-fitting prosthesis (with several replacements needed over the years), use of cane to ambulate
  • unable to bend, lift, twist, rotate or do excessive standing or sitting
  • continuing need for electrical stimulation and brace on right ankle
  • needs total knee replacement within 5-10 years
  • unable to return to work

Inside Information:

  • By stipulation, the parties agreed that plaintiff’s damages included $98,000 for past loss of earnings and $178,318 for past medical expenses. These amounts were subject to a lien by the workers compensation carrier.
  • A settlement was discussed in open court during the trial. Defense counsel indicated that his client would pay $250,000 and that the workers compensation carrier would pay $750,000 and waive its lien of about $250,000. After a hearing in which the potential settlement was explained, Mr. Loja declined to settle.
  • Due to (a) the fact that the driver had very limited insurance coverage and (b) the intricacies of  CPLR Article 16 (regarding joint liability) and the Workers Compensation Law (which prohibits employees from suing directly their employers in work-related accidents), it appears Mr. Loja’s actual financial recovery in this lawsuit will be much less than what was offered.
  • In his closing argument, plaintiff’s attorney asked the jury to award pain and suffering damages in the sum of $7,475,000.

After only 23 1/2 weeks gestation, Zalaya Tart was born prematurely at St. Barnabas Hospital in the Bronx on April 29, 2005. She weighed only 542 grams (1.1 pounds) and was just on the edge of being able to survive.

Zalaya had a host of life-threatening medical problems associated with her extreme prematurity and low birth weight so an arterial line was placed in her right arm to continually monitor her blood pressure and get samples of her blood whenever needed.

An arterial line (not a newborn)

At 3 p.m. the next day, a nurse noted that several fingernails on on Zalaya’s right hand were turning blue, demonstrating cyanosis (a sign of decreased oxygen in the bloodstream).

That evening, doctors removed the arterial line from Zalaya’s right arm and placed it in her left arm. Tragically, though, circulation in the right fingers could not be reestablished and several days later, parts of four fingers on Zalaya’s right hand became gangrenous and fell off.

Zalaya’s right hand was left grossly disfigured with four fingers auto-amputated approximately at the level of the proximal inter-phalangeal joints looking similar to the middle diagram in column A below (a grainy photograph of the exhibit that is part of the trial record in the ensuing lawsuit can be seen, here):

Kia Bynoe, Zalaya’s mother, brought a lawsuit claiming that the care her daughter received at the hospital was negligent and caused the loss of her fingers. On March 19, 2012, the Bronx County jury found that there had indeed been malpractice and the jury awarded pain and suffering damages in the sum of $4,500,000 ($300,000 past – seven years, $4,200,000 future – 68 years).

Now, in Tart v. New York Bronx Pediatric Medicine, P.C. (1st Dept. 2014), the liability finding has been affirmed; however, the appeals court agreed with the defense that the damages award was excessive and it ordered a reduction to $1,200,000 ($200,000 past, $1,000,000 future).

Plaintiff’s counsel argued that the award was reasonable emphasizing the fact that Zalaya’s right hand was terribly deformed, she cannot use her right hand at all and that two hands are needed  to perform many of life’s activities that are taken for granted which Zalaya could not do, such as buttoning a shirt, tying a shoelace, putting on a belt, fastening a bra and brushing hair.

The defense argued that the pain and suffering award was excessive because “absent from plaintiffs’ proof was any evidence that [Zalaya] suffers any significant disability and/or pain and suffering from the loss of parts of four fingers of her right hand.” Further, the defense noted, Zalaya suffered from cerebral palsy, brain damage, hemiparetic gait and other neurological dysfunctions, none of which were attributable to or caused by the failure to remove the arterial line in time but were instead simply the result of Zalaya’s extreme prematurity and concomitant neurological complications and developmental delays.

Inside Information:

  • Ms. Bynoe had been carrying twins. Zalaya’s twin brother died following a pulmonary hemorrhage less than a day after he was born.
  • During deliberations, a juror reported to the trial judge that she was being coerced by other jurors who had already made up their minds and that some jurors had texted messages to outsiders. After the judge spoke with the concerned juror, he told her to return to the jury room and shortly thereafter the jurors reached a verdict. After the trial, the juror thanked the judge and stated: “When I went back, there was a big change among us and we were able to work it out.”
  • The jury rejected plaintiff’s claim that the hospital and its physicians were negligent in failing to administer magnesium sulfate so as to (a) delay labor and (b) prevent pre-term labor and Zalaya’s neurological injuries and related disabilities.
  • While the jury was deliberating, the trial judge had his court officers remove one of the defense lawyers from the courtroom for several minutes. The judge said the lawyer had purposely violated his directive regarding a jury read-back and he was upset with the lawyer’s demeanor in other regards. The judge said: “You have been a problem since day one.” After he was escorted out, the judge said: “Next time I put him in cuffs. Total disservice.”

On September 24, 2000, Thomas Burke fell from his wheelchair and injured his left foot. Mr. Burke, then 57 years old, had been afflicted with progressive multiple sclerosis for 20 years and had been wheelchair-bound since the mid-1990s. A week after he fell, Burke consulted with the first of several doctors about continuing leg pain. Unfortunately, he developed compartment syndrome and on October 11, 2000 – less than three weeks after he fell – Burke’s left leg had to be surgically amputated below his knee.

Compartment- Syndrome

Compartment syndrome is a painful condition that occurs when pressure within the muscles builds to dangerous levels. If acute, it is a medical emergency requiring a fasciotomy in which the surrounding skin and fascia (connective tissue) are cut open and away to relieve the pressure.

Burke sued several physicians claiming malpractice but all were dismissed from his suit except an orthopedic surgeon, Wesley V. Carrion, M.D., who treated him one time, 11 days after the fall.  Burke claimed that the orthopedic surgeon should have diagnosed acute compartment syndrome (“ACS”) and performed a fasciotomy. The defense contended that ACS is only acute for about seven hours after an injury and that thereafter it is medically inadvisable to operate.  The jury disagreed and on May 6, 2008 they returned a verdict finding the defendant liable.

The jury also: (a) assessed pain and suffering damages in the sum of $1,500,000 ($500,000 past – eight years, $1,000,000 future – 17 years) and (b) awarded plaintiff’s wife loss of services damages in the sum of $750,000 ($250,000 past, $500,000 future).

On appeal, in Burke v. Carrion (2d Dept. 2012), the liability finding and the pain and suffering damages awards were affirmed; however, the loss  of services awards were slashed to $20,000 ($15,000 past, $5,000 future).

Plaintiff argued, successfully, that the pain and suffering awards should be sustained because, even though plaintiff was wheelchair bound for many years he had been “fiercely independent” and able physically in many respects (e.g., prepared his own lunches, washed dishes and drove his car) but after the amputation he:

  • was essentially immobilized in the hospital and in rehabilitation for approximately one year
  • was without a prosthesis for a year and during that time had to be moved by a Hoyer lift
  • underwent nine surgical procedures (three major surgeries on his lower leg and numerous debridements)
  • sustained global degeneration – the loss of most muscle strength and coordination throughout his body
  • became totally dependent on others for activities of daily living such as wheelchair transfers, showering and toileting

 

Hoyer Lift

The defense argued, unsuccessfully, that the pain and suffering awards were excessive, and the 17 year future period too long, because of a host of pre-existing conditions Mr. Burke was already suffering from including: progressive MS, strokes, Bell’s Palsy, seizures  heart conditions and depression.

Although the appellate court affirmed the pain and suffering damages, it ordered a drastic reduction of the plaintiff’s wife’s loss of spousal services and consortium verdict: from $750,000 to $20,000.

  • Plaintiff argued on appeal that his wife’s derivative award was proper because Mr. Burke had, before the amputation, been “a loving husband and enjoyable partner” with “an intimate marriage [that] was transformed into a sad existence of caretaking, worry, and lack of normalcy and support.” Additionally, plaintiff argued that he could no longer perform any household chores.
  • The defense argued, successfully, that there was insufficient evidence to support any significant loss of services award claiming that strokes before the amputation left Mr. Burke unable to handle the household finances, transfer from one spot to another or drive  a car and that he was already essentially immobile and in need of outside physical assistance.

Inside Information:

  • On May 24, 2009, just a year after the verdict was rendered, Thomas Burke died from brain cancer, a cause unrelated to his leg or malpractice claims. Under New York law requiring large future pain and suffering verdicts to be paid out over many years (and discontinued in the event of death), almost all of the future pain and suffering damages in this case in excess of $250,000 will not be due.
  • Two months before the verdict in Burke v. Carrion, a different jury exonerated Dr. Carrion in a different case, Mistretta v. Carrion. In that case, a 15 year old who underwent a derotational osteotomy claimed that she developed compartment syndrome because peroneal nerve compression had not been addressed intra-operatively. The jury rendered a defense verdict finding no malpractice.

 

On October 2, 2004, Gary Hoover was operating a tractor-driven post hole digger for a fence project in his backyard in upstate Cambria, New York. This is a very dangerous piece of equipment.

Hoover’s 16 year old step-daughter, Jessica, was helping him by  holding the digger’s gear box to line up the auger so a straight hole could be dug. After several holes were dug, Lori’s coat became snagged by a protruding bolt on the unguarded drive shaft of the digger and she was dragged into the driveline; her right arm was traumatically severed above the elbow.

In the ensuing lawsuit, claims were asserted against the product’s designers and manufacturers, distributor,  retail seller and owner.

A one month trial in Niagara County concluded on April 7, 2011 with a jury verdict that the auger was defectively designed.

The jury apportioned liability among the defendants as follows: the designer and manufacturer – 30%, the distributor – 35%, the owner – 30%, the operator – 3% and the retail seller – 2%.

Pain and suffering damages were awarded in the sum of $5,000,000 ($1,000,000 past – 6 1/2 years, $4,000,000 future – 59 years). In Hoover v. New Holland North America, Inc. (4th Dept. 2012), both the liability and damages verdicts have now been affirmed.

Plaintiff argued on appeal that $1,000,000 for past damages was inadequate and should be increased in view of the following injury facts:

  • Jessica was conscious while hanging from the post hole digger’s driveline and saw her right arm lying on the ground; she had to be cut down by her stepfather
  • daily pain and sensitivity in her stump, phantom pain that is excruciating, neck and back pain
  • significant psychic and emotional trauma, including depression
  • fractures of her left clavicle, scapula and humerus

Defendants argued on appeal that the overall $5,000,000 pain and suffering award was excessive because Jessica “enjoyed a reasonable return to everyday activities” including:

  • her return to high school within several months and graduating on time,
  • obtaining a driver’s license and driving a car,
  • being employed for four years after high school at a bank,
  • becoming a mother and raising an infant on her own, and
  • attending a local community college

In affirming the entire pain and suffering award, the appellate court rejected plaintiff’s argument that the past award was inadequate and the defendants’ argument that the entire award was excessive.

The total jury award was $8,811,587. In addition to $5,000,000 for pain and suffering damages, the jury awarded (and the appellate court affirmed) $3,811,587 for economic damages:

  • past medical expenses – $138,653
  • future medical expenses – $2,677,934
  • past loss of earnings – $45,000
  • future loss of earnings – $950,000

The future medical expenses award included $1,687,902 for prosthetic devices, their repair and maintenance. Each prosthetic arm must be replaced every three to five years and they cost $64,000 each.

Inside Information:

  • On the third day of trial, the manufacturers and the owner settled for a total of $4,625,000. Under General Obligations Law Section 15-108, the settlement will reduce the amount plaintiff receives from the overall $8,811,587 verdict.

UPDATE: On April 1, 2014, the Court of Appeals affirmed the denial of defendants’ motion for summary judgment seeking the dismissal of plaintiff’s design defect claims. New York’s highest court held that there were triable issues of fact concerning the defective design of the safety shield that were sufficient to defeat summary judgment based on substantial modification.

Dean Robinson was playing in a pick-up basketball game at P.S. 89 in the Bronx on May 5, 2006. The 14 year old  made a clap lay-up  (a show-off move in which one releases the ball towards the basket and simultaneously claps or slaps the backboard with his shooting hand). That was likely the last one he’ll ever attempt.

The momentum from slamming his hand against the backboard propelled Dean forward and as he came down his right middle finger got caught on a metal cage on the wall that was covering an emergency light fixture a foot behind and below the backboard. As he came down, Dean’s fingertip was traumatically amputated.

The fingertip is the portion of the digit distal to the insertion of the flexor and extensor tendons on the distal phalanx:

 

Rushed by ambulance to Montefiore Hospital, Dean underwent  thenar flap surgery in which the top of his injured finger was implanted in his palm to regenerate tissue. Two weeks later, he underwent a second surgery to divide the finger from his palm.

In his ensuing lawsuit, Dean claimed that the school was liable for his injuries because the cage should not have been placed so close to the basket.

On April 23, 2010, a Bronx County jury ruled that the defendant was fully at fault and rejected arguments that plaintiff assumed the risk of his injury or that it bore no responsibility becasue the hazard was open and obvious.

The same jurors then awarded plaintiff $868,000 for pain and suffering damages ($268,000 past – 4 years, $600,000 future – 40 years).

In Robinson v. New York City Dept. of Education (1st Dept. 2012), the liability verdict has now been upheld but the pain and suffering damages award has been slashed to $300,000 ($125,000 past, $175,000 future) – a $568,000 reduction.

As noted in the decision, Dean lost the tip of the middle finger on his dominant hand (about one inch), resulting in sensitivity and a 25% disability of the hand. By the time of trial, Dean had resumed playing basketball, frequently though not as well as before. 

Inside Information:

  • The jury also awarded and the appellate court sustained $132,000 for the future costs of a prosthetic finger and a dozen or so lifetime replacements.
  • In closing arguments, defense counsel suggested that becasue a prosthesis would significantly increase functionality, reduce sensitivity and increase plaintiff’s self-image, "the Department of Education has no problem paying for the prosthetic."
  • In arguing the appeal, both parties referred to our prior article on hand injuries, here.
  • In a 1982 article in The Journal of Hand Surgery, 183 surgeons who had lost parts of their hands were surveyed. Only three claimed any significant professional disability and the author’s conclusion was that motivation of the patient is more important to hand function than the actual number of digits.

 

 

 

 

 

 

 

 

New York’s appellate courts issued decisions in 10 cases in 2011 that approved pain and suffering damages in the sum of $3,500,000 or more.

The largest was $12,000,000 for a 24 year old woman who was paralyzed when a weight-lifting machine fell on top of her.

The courts affirmed the jury verdict in five of the cases, ordered a conditional reduction in four others and in one case ordered an increase.

Here are summaries of each of the 10 cases.

Barnhard v. Cybex Intl., Inc. (4th Dept. 2011) – $12,000,000 (reduced from $21,000,000) for a 24 year old physical therapy assistant from Buffalo rendered a C-5 quadriplegic when a 600 pound leg extension weight-lifting machine tipped over and crushed her neck. We discussed this case in detail, here.

Aguilar v. New York City Transit Authority (1st Dept. 2011) – $10,000,000 (reduced from $16,000,000) for a 45 year old Manhattan woman who sustained an above the knee amputation of her leg after she was run over by a bus. We discussed this case in detail, here.

Oakes v. Patel (4th Dept. 2011) [discussed by us here for the first time] – $9,600,000 (affirmed) in a medical malpractice case for a 42 year old excavation contractor who sustained a debilitating stroke and was left permanently paralyzed after a brain aneurysm was not properly diagnosed or treated and thereupon ruptured in a massive bleed.

Mr. Oakes was left with catastrophic neurological injuries and permanently in need of around the clock care. He is wheelchair bound, incontinent, wholly dependent in all activities of daily living and has severe cognitive deficits including findings of dementia and mental retardation.

Oakes v. Patel first went to trial in 2008 and resulted in a $2,000,000 pain and suffering verdict that plaintiff challenged as inadequate. The trial judge agreed and issued a decision ordering a new trial on damages unless the defendants stipulated to a $10,000,000 pain and suffering award. They declined and a second trial was held resulting in the $9,600,000 pain and suffering verdict that the appellate court affirmed.

The appellate court split 3-2 and defendants have been granted leave to appeal to the state’s highest court – the Court of Appeals. As discussed by one of the dissenting judges, the defendants claim that the appellate court should  have addressed the propriety of the trial judge’s five-fold increase in the pain and suffering damages award before addressing any issues raised regarding the second trial.

This is important because of the differences between ruling on excessiveness and inadequacy of damages. An appellate court ruling on excessiveness will reduce an award to the maximum figure it determines to be in the range of reasonableness. The same judges, on the same facts, might well arrive at a different figure when ruling on inadequacy because in that situation their job is to increase  the award to the minimum figure they determine to be in the range of reasonableness.

Sanders v. New York City Transit Authority (2d Dept. 2011) – $8,550,000 (affirmed) for a 41 year old man from Brooklyn who sustained a below-the-knee amputation of one leg, lost much of the big toe on his other leg, was rendered blind in one eye, and sustained a severed ear, head injuries and facial fractures, all as a result of being run over by a subway train. Plaintiff was found to be 30% at fault and his award reduced accordingly. We discussed this case in detail, here.

Mohamed v. New York City Transit Authority (2d Dept. 2011) – $5,000,000 (reduced from $11,500,000) for an 18 year old college student in Brooklyn who sustained a massive degloving injury of her leg when she was struck by a bus while crossing the street. Plaintiff was found to be 20% at fault and her award was reduced accordingly. We discussed this case in detail, here.

Angamarca v. New York City Partnership Hous. Dev. Fund, Inc. (1st Dept. 2011)- $5,000,000 (increased from $1,100,000) for a 32 year old carpenter who fell from a roof in Brooklyn and sustained skull fractures, a traumatic brain injury and fractures of his spine, wrist and leg. We discussed this case in detail, here.

Belt v. Girgis (2d Dept. 2011) – $5,000,000 (reduced from $15,000,000) for a 22 year old college student in Queens who was on a sidewalk when she was struck by a drunk driver. She sustained traumatic brain injuries and fractures of her temporal bone, femur, pelvis, ankle and clavicle. We discussed this case in detail, here.

Stewart v. New York City Transit Authority (1st Dept. 2011) – $4,700,000 (affirmed) for a 47 year old man who slipped and fell walking down subway stairs. He sustained several spinal fractures and herniated discs requiring laminectomies and fusion surgery. We discussed this case in detail, here.

Rivera v. City of New York (2d Dept. 2011) – $3,500,000 (affirmed) for the estate of a 10 year old girl who died in a Brooklyn hospital as a result of malpractice 4 1/2 hours after presenting with a severe asthmatic episode. We discussed this case in detail, here.

Hammond v. Diaz (2d Dept. 2011) – $3,500,000 (reduced from $4,000,000) for a 42 year old pedestrian struck by a car while he was crossing the street in Queens. He sustained spinal cord contusions near C-4 that left him with permanent hemiplegia. We discussed this case in detail, here.

There are many important verdicts involving pain and suffering damages that are now being appealed and that will be ruled upon by the appellate courts in 2012. As and when each of those cases is decided, we will, as always, analyze them here.