He was a tough 47 year old steel cutter employed for many years at the Goodyear-Dunlop plant in Tonawanda, New York (the Buffalo-Niagara Falls metropolitan area) when in 2004 he noticed his right arm was swelling. After visits to a local ER and his primary care doctor, Richard Winiarski ended up seeing a vascular surgeon who told him he had a blood clot and thoracic outlet syndrome, pain in the arm and shoulder areas caused by a rib compressing upon a subclavian blood vessel.

Here is the involved anatomy:

The doctor successfully treated the clot over the next six months with blood thinning medication and an injection (known as a lytic procedure). All seemed fine but she recommended a rib resection operation to prevent a recurrence of the blood clot. The surgery involved removing the first rib so as to allow more space for the blood vessel.

During surgery, though, the doctor did not identify the thoracic nerve (which runs through the belly of the middle scalene muscle) and the nerve was damaged  when she cut through the muscle using an electrocautery device – a surgical tool which is heated with electric current to cauterize, or burn, vessel tissue.


Immediately after the surgery, Mr. Winiarski had tremendous pain in the area of his scapula (or "shoulder blade") and within two weeks at physical therapy he was seen to have scapular winging (in which the scapula protrudes at rest or with arm and shoulder movement).

In the medical malpractice lawsuit that followed (Winiarski v. Harris – Supreme Court, Erie County, Index #3375/07), the jury found that the thoracic nerve had been injured by the surgeon  whose failure to identify the nerve was malpractice. The jurors then awarded plaintiff damages for his pain and suffering in the sum of $52,000 ($12,000 past – 4 years, $40,000 future – 24 years).

On appeal, in Winiarski v. Harris (4th Dept. 2010), plaintiff’s pain and suffering award has been increased to $562,000 ($162,000 past, $400,000 future).

The appellate decision states that plaintiff suffers from scapular winging and a permanent limitation of his right shoulder and arm; however, there’s more. Here are the details as to the injuries, which are permanent because the nerve cannot heal, grow back or be replaced:

  • 80% loss of use of his arm
  • can only lift his arm to 45 or 90 degrees (with decreasing range of motion)
  • pain requiring lifelong use of the narcotic medication Lortab
  • sleep deprivation and depression

Inside Information:

  • Mr. Winiarski was unable to resume heavy labor and was therefore fired from his job at Goodyear-Dunlop. He then took a job as a shoe salesman in a department store but had to stop after several months because it required him to climb ladders holding shoe boxes. The jury awarded him (and the appellate court affirmed) loss of earnings damages (including health insurance and pension) in the sum of approximately $1,300,000 ($200,000 past, $1,100,000 future). 
  • The court also upheld Mrs. Winiarski’s claim for loss of consortium in the sum of $120,000 ($20,000 past, $100,000 future).
  • Defense counsel claimed (unsuccessfully) that the trial judge committed reversible error when he granted plaintiff an adjournment of several days to start his proof. The doctor was scheduled to be out of town at a medical conference and objected to the adjournment because it would mean she’d be unable to attend the end of the trial proceedings (the defendant did in fact miss summations and the judge’s jury instructions).
  • The trial judge had increased the future pain and suffering award to $540,000 – an amount deemed $140,000 too much by the appellate judges. It appears that they wanted to bring the award in this case somewhat more in line with the $500,000 pain and suffering award affirmed recently in Garrow v. Rosettie Assoc. (3d Dept. 2009), one of the few cases dealing with injuries very similar to those sustained by Mr. Winiarski.



It takes a whole lot of trauma to fracture the humerus – the long bone of the upper arm – and when it does happen there will likely be other injuries such as to the shoulder or wrist. So it’s not easy to find cases that deal only with humerus fracture pain and suffering damages but we’ve dug up several that may be of interest and instructive.

First let’s take a look at the humerus which, as you can see, is comprised of a shaft and two articular surfaces that form a part of the shoulder and elbow joints. We recently wrote about rotator cuff and other shoulder injury damage cases here and here and will in the future discuss elbow injuries.

Here’s an x-ray of the humerus:

In the most recent New York appellate court case to deal solely with humerus fracture damages, Coker v. Bakkal Foods, Inc. (Appellate Division, 2nd Dept., 6/24/08), a Suffolk County jury verdict of $200,000 was upheld for pain and suffering for a 46 year old seamstress who fell and sustained a comminuted fracture of her humerus. She underwent extensive physical therapy, had three steroid injections and was unable to work for two months. She did not undergo surgery but was left with permanent limited range of motion and a prognosis that included the probability of surgery. 

When one is forced to undergo surgery, for a humerus fracture or in any other injury case, it’s very likely that the jury will evaluate the pain and suffering claim higher than in non-surgical cases and that the appellate courts will uphold the higher verdict. One might say that’s a bit counter intuitive because the surgery is supposed to fix the patient. But the typical reaction of the jury in surgical cases is visible wincing (especially when shown by the surgeon how and where he cut and what the hardware inside the bones really looks like). And after the wincing, the money flows.

Here’s a recent humerus fracture case that involved multiple complicated surgeries – Baez v. New York City Transit Authority (1st Dept., 2005). In this case, $980,000 for pain and suffering ($600,000 past; $380,000 future) was upheld in a Bronx County case for a 56 year old home health aide who was in a bus accident and sustained a comminuted fracture of her right dominant arm. She underwent open reduction internal fixation surgery to fix the humerus fracture but, thereafter, she had to undergo a second surgery to correct a malunion of the fracture.

  • Insider Information: In this case the defendant’s pre-trial offer to settle was only $25,000 against the plaintiff’s settlement demand of $450,000. Hindsight is always 20/20 but it needs to be pointed out that the defendant paid $530,000 more than was necesary!

Here are some other recent New York jury verdicts involving humerus fractures:

  • Zambrano v. Abdalla (Supreme Court,Kings County; Index # 413/06; 5/21/08) – $85,000  for a 59 year old hostess who sustained a non-displaced humerus fracture and did not need surgery
  • Robinson v. 3512 Oxford Avenue Tenants Corp. (Supreme Court, Bronx County; Index # 25341/04; 2/11/08) – $700,000 pain and suffering split equally between past and future for  a 68 year old semi-retired woman who sustained a comminuted fracture of her dominant arm’s humerus in which the head split into two pieces and the shaft into a third. She underwent a hemiarthroplasty – reconstructive surgery to remove fracture fragments and insert permanent hardware secured by screws

And if you think that $700,000 was too much for what the 68 year old Mrs. Robinson went through in the case just mentioned, then take a look at what she went through in the operating room and what she’ll live with for the rest of her life.

Here’s the hemiarthroplasty: