Robert O’Connor, then 77 years old, was admitted to Kingston Hospital  on December 26, 2008 from the office of his physician when he was noted to be dehydrated and hypotensive subsequent to a several week history of loss of appetite and generalized weakness with nausea and vomiting. Within two days, he was diagnosed with multiple cancerous liver and bone metastases. During his two weeks at the hospital, Mr. O’Connor developed significant bed sores from which he suffered until he succumbed from cancer and died at another hospital on February 27, 2009.

In his estate’s ensuing medical malpractice lawsuit, an Ulster County jury determined that Kingston Hospital committed malpractice by departing from accepted standards of nursing practice in its treatment of Mr. O’Connor between 12/26/08 and 1/9/09 and, after he was discharged to his home for nine days, between 1/18/09 and 1/23/09. Plaintiff’s expert identified three specific deviations that caused the pressure ulcers to develop and worsen: (1) failing to turn the patient every two hours, (2) failing to supply an air mattress, and, (3) failing to to recognize the high risk for pressure ulcers and have a plan in place designed to minimize pressure on the skin.

The jury awarded pain and suffering damages in the sum of $500,000 (past – two months), an amount that was affirmed in O’Connor v. Kingston Hospital (3d Dept. 2019).

Here are the injury details:

  • development of Stage II pressure ulcer by 1/1/09 (and two more by 1/3/09) which grew to 10 centimeters and was designated unstageable by 1/19/09 and which by 1/23/09 was diagnosed as a Stage IV sacral decubitis pressure ulcer which had the appearance of rotting flesh and had purulent serosanguineous discharge and odor
  • constant pain, as is typical with pressure ulcers, in and about his buttocks and legs, leaving him unable to walk
  • two surgical irrigation and debridement procedures to remove the eschar (dead tissue) and drain inside the ulcer

Plaintiff argued that defendant’s negligence caused a large grotesque foul-smelling wound in which flesh literally rotted as the decedent, a stoic Korean War veteran, died an ignominious and painful death. Defendant argued that it was far from clear that the decedent developed any pressure ulcers while under its care and that its records indicated he was discharged “without skin breakdown.”

As to damages, the defense contended that the pain and suffering award was excessive and that:

  1. whatever pain the decedent had it was well controlled while under the defendant’s care,
  2. whatever pain he had related almost solely to his abdominal region likely due to his metastatic cancer, and ,
  3. the jury speculated impermissibly with regard to which, if any, pain and suffering was the result of any alleged departures or was “simply an unfortunate result of his suffering from terminal metastatic cancer with associated treatments.”

Inside Information:

  • Joycie O’Connor, the decedent’s wife who was with him every day in the hospital, died while this case was on appeal.
  • Between the two admissions to Kingston Hospital, the decedent was cared for at home by his wife and Willcare, Inc., a home health agency. It was sued along with the hospital. After its motion for summary judgment was denied, plaintiff settled with Willcare for $200,000.

On September 1, 2010, while at work as a physical therapy assistant, Arlene Daniele, then 59-years-old, felt a twinge in the area of her lower back. The next day, she felt pain when attempting to walk. She went that day to see a pain management physician and was diagnosed with lumbar enthesopathy (inflammation) and myalgia (muscle pain) and given two trigger point injections (a steroid and an anti-inflammatory).

After a Labor Day weekend of pain, a friend took Ms. Daniele to Winthrop University Hospital in Mineola on September 7th where she was treated in the emergency room by a physician’s assistant who ordered an anti-inflammatory injection, pain medicine and an x-ray (which showed spondylolisthesis – forward displacement of a vertebra) before determining that there was no spinal emergency and discharging Ms. Daniele.

Unfortunately, her pain continued and on September 9, 2010, Ms. Daniele was taken by ambulance to another hospital, where an MRI of her thoracic and lumbar spine revealed multiple spinal epidural abscesses (from a bloodstream infection).

Ms. Daniele was transferred to Winthrop for emergency an emergency laminectomy – surgery to decompress the discs at T-6 to L-4.

A week later, she required more surgery – a drainage of a deep abscess on her cervicothoracic spine and a C7-T1 cervical discectomy and fusion.

Ms. Daniele remained hospitalized for two weeks following her second surgery and then spent five weeks in a rehabilitation facility until she was discharged to home.

In the ensuing medical malpractice lawsuit, a Nassau County jury found the pain management doctor was 15% at fault for his delay in following up on his patient after she called his practice on September 5th complaining of continued pain, a fever and difficulty moving around. The jury also found the physician’s assistant and Winthrop Hospital were 85% at fault for discharging Daniele to home without performing a sufficiently thorough examination and/or ordering an MRI and/or blood tests.

While it was conceded that plaintiff probably would have needed some surgery to address the abscesses that pre-existed her encounters with the defendants, she argued that had her condition been timely and properly diagnosed, she would not have suffered any deficits to her cervical spine, and she would have had a much better chance of recovering fully from the lumbar aspects of the abscess. The jury agreed and returned a verdict  awarding pain and suffering damages in the sum of $2,000,000 ($500,000 past – five years, $1,500,000 future – 20 years). The jury also awarded damages for plaintiff’s loss of earnings in the sum of $600,000 ($250,000 past, $350,000 future – seven years).

Defendants’ post-trial motion to set aside the verdict was denied. They then appealed arguing that rulings made during the trial were improper, unfair and so prejudicial that a new trial was required as to the issue of liability. Alternatively, they argued that the damages awards were excessive and should be reduced.

In Daniele v. Pain Management Center of Long Island (2d Dept. 2019), the appellate court agreed with the defendants  to the extent that it ordered (a) the jury verdict on liability was set aside and (b) the matter was remitted to the trial court for a new trial on the issue of liability. In light of its determination, the appellate court did not need to specifically address the damages issue.

As to damages. there was no dispute about the rule that where a defendant’s wrongful act did not cause a disease or condition, but only aggravated and increased the severity of a condition existing at the time of an injury, plaintiff may recover only for such increased or augmented sufferings as are the natural and proximate result of the defendant’s act.

The defendants argued that there was insufficient proof that plaintiff’s condition was exacerbated by a delay in surgeries to treat her pre-existing abscesses and that since she would have required the surgeries to treat the abscesses, the only injury attributable to them would be any pain and suffering directly flowing from the alleged treatment delay.

Plaintiff claimed she continued to have back and leg pain, her right foot remains numb and she is unsteady on her feet and can no longer work as a physical therapy assistant or perform activities such as hiking, dancing or engaging in sports. Her damages expert testified that she has permanent cervical-related weakness in her right arm and hand, impaired balance, impaired tandem gait, reflex asymmetry and an abnormal or dropped reflex in her ankle which related to damage in her lower spine. Plaintiff argued that but for the malpractice,  she would not have suffered any deficits to her cervical spine, and she would have had a much better chance of recovering fully from the lumbar aspects of the abscess.

The defendants argued that there was no evidence plaintiff’s condition was exacerbated by a delay in surgeries to treat her preexisting abscesses and in any event the pain and suffering award was excessive. They noted that plaintiff moved to Georgia in 2012 where, that year, her then treating physician found her gait to be normal and that in 2013 he found her neck to be supple and without pain on movement. Further, they noted that plaintiff took no pain medication, exercised regularly and was able to walk unassisted with shopping bags in her arms.

Inside Information:

  • Plaintiff had treated with the defendant pain management physician in November 2009 to address complaints of upper thoracic pain. She was then administered six to nine trigger point injections over the course of two months.
  • Two other private doctors were significantly involved in plaintiff’s treatment – the surgeons who operated on her spine. There was evidence that these doctors delayed in the diagnosis and treatment of plaintiff’s cervical abscesses but they were not named as defendants so their percentages of fault, if any, were not determined by the jury.

 

 

 

Anthony Bianco was born on December 31, 1999 at Winthrop University Hospital in Mineola. He was delivered by means of a vacuum extraction under the supervision of Steven Sherwin, M.D., an obstetrician-gynecologist.

Years later, Anthony’s mother, Mauro Bianco, commenced a medical malpractice lawsuit against her physician claiming that Dr. Sherwin improperly performed the vacuum extraction and that as a result Anthony sustained brain injuries which caused permanent neurocognitive deficits. A Nassau County jury agreed and awarded pain and suffering damages in the sum of $1,750,000 ($250,000 past – 15 years, $1,500,000 future – 60 years).

In Bianco v. Sherwin (2d Dept. 2018), both the liability and damages verdicts have been upheld.

Here are the injury details:

  • upon delivery, Anthony was noted to have soft tissue swelling and blood under the skin of his skull, vacuum marks and lacerations on his head and a two inch by two inch large cephalohematoma on his head
  • a CT scan revealed a subdural hematoma
  • at the age of three years, Anthony had difficulties understanding his speech, displayed language problems and underwent a procedure to improve tongue mobility and improve his speech
  • at the age of seven years, Anthony was diagnosed with an unspecified brain dysfunction because he was not developing normal speech and language skills
  • in second grade, Anthony was in a special education class, struggling and receiving special assistance to try to keep up in school
  • permanent absence of higher level of thinking, according to plaintiff’s expert neuropsychologist, with low average intelligence and mildly impaired memory

Plaintiff’s expert testified that Anthony will never be capable of holding other than an entry-level job; however, the jury declined to award any damages for impairment of earning capacity.

Defendants’ medical experts contended that there was no malpractice, the delivery was properly performed and that it was not possible to have brain damage that only manifested itself years later in learning deficits.

Inside Information:

  • Anthony did not testify or even appear in court; nor was his deposition testimony read to the jury.
  • Plaintiff’s expert conceded that the injury in this case is “microscopic” and there was no blood in the brain itself.
  • Mrs. Bianco continued to treat with Dr. Sherwin and he delivered her daughter in 2002.

 

On April 20, 2011, Thomas Tornatore, then 51 years old, was wrestling with his nephew when he sustained an injury to the base of his neck. Five days later, Mr. Tornatore sought treatment from a chiropractor. After his fourth and final treatment, which included chiropractic manipulations, he had severe pain in his neck that radiated down his arm. Within a week, he was diagnosed by an orthopedic surgeon and told he had a herniated disc and needed spinal surgery.

In his ensuing medical malpractice lawsuit against the chiropractor, Mr. Tornatore claimed that the manipulations were inappropriate because plaintiff suffered from pre-existing conditions, including a degenerative cervical spine with spinal stenosis. The defense argued that (a) plaintiff was properly treated and (b) the treatment did not injure plaintiff or worsen his pre-existing condition in view of the testimony of the defendant’s medical expert contending that spinal MRI scans from before and after the treatment did not show any significant change.

The Onondoga County jury agreed with plaintiff finding the defendant negligent and awarding pain and suffering damages in the sum of $500,000 ($200,000 past – four and a half years, $300,000 future – 20 years) and future medical and life care expenses in the sum of $903,407 (20 years).

Defendant appealed, arguing mainly that the future medical and life care expenses award was excessive and, in any event, it should be vacated because the testimony of plaintiff’s life care expert was wrongfully admitted.

In Tornatore v. Cohen (4th Dept. 2018), defendant’s arguments were rejected and the judgment was affirmed in all respects.

The appellate court’s opinion does not discuss plaintiff’s injuries. Here are the injury details:

  • herniated disc at C5-6 with large sequestered fragment compressing nerve, caused by defendant’s aggravation of plaintiff’s pre-existing degenerative cervical spine

  • decompressive surgery with fusion of cervical spine at C4-5, C5-6 and C6-7
  • surgical revision of hypertonic scars from first surgery
  • permanent residual neck pain and stiffness with limitation of range of motion
  • difficulty sleeping and driving, unable to lift grandchildren

The award for future medical and life care expenses was based upon the testimony of plaintiff’s vocational rehabilitation specialist and life care planner. It included $474,000 for 20 years of medications (including Gabapentin, Tramadol and Hydrocodone) and $268,000 for pain management (including epidural injections 3-4 times a year at a cost of more than $3,000 each). The jury rejected parts of plaintiff’s claims for future expenses and awarded nothing at all for a spinal cord stimulator and surgery to implant it.

Inside Information:

  • Plaintiff’s witnesses included her orthopedic surgeon and internists in addition to her expert chiropractor and life care planner. The defense called only an expert neuroradiologist.
  • Plaintiff’s criminal history that defendant was precluded from using related to two matters. One was a 1979 youthful offender adjudication on sodomy charges following a consensual relationship with another then under-18 year old boy. The other was a 1997 charge of soliciting a minor for sex in which plaintiff was found guilty by a jury but adjudication of guilt was withheld by the judge and he was given probation.
  • The prior MRI scan reviewed by the defendant’s medical expert was from 2002 after plaintiff sustained a work-related injury. He was asymptomatic and did not undergo any treatment between 2002 and the current incident.

On February 23, 2009, at Mercy Medical Center in Rockville Centre, Nylah Hollingsworth was born prematurely at 26 1/2 weeks of gestation.

Two weeks later,Nylah was diagnosed with necrotizing enterocolitis (NEC), an acute infection of the intestine sometimes seen in premature infants.

Nylah’s mother sued the hospital claiming that it negligently caused NEC. On September 30, 2014, a Queens County jury returned a verdict finding that the hospital was negligent by failing to obtain a surgical consult or transfer Nylah to another hospital upon diagnosing her with NEC. Then, the jury awarded pain and suffering damages in the sum of $5,000,000 ($1,000,000 past – five and a half years, $4,000,0000 future – 75 years).

In Hollingsworth v. Mercy Medical Center (2d Dept. 2018), the appellate court affirmed the liability finding against the hospital and the trial judge’s reduction of the pain and suffering award to $575,000 ($75,000 past, $500,000 future).

As set forth in the appellate court decision, the jury found that the defendant was responsible only for the delay in obtaining a surgical consult and transferring Nylah to another hospital, not for causing the NEC itself.

Here are the injury and course of treatment details:

  • Born weighing only 2 pounds 3 ounces, Nylah was stabilized in the delivery room and transferred to the neonatal intensive care unit where she was provided antibiotics, fluids and respiratory support
  • Started on total parental nutrition the day after birth, then breast feeding by March 6th
  • Upon a significant increase in abdominal girth and spewing formula and polyvisol, Nylah was diagnosed with Stage II NEC on March 9th and a surgical abdomen on March 10th
  • Grossly bloody stool on March 10th; intubated and placed on mechanical ventilator
  • Lung collapse on March 12th; bowel sounds absent
  • Abdominal girth continues to rise and abdomen remains distended through March 15th when transferred to Long Island Jewish Medical Center (LIJ) for definitive treatment (where she remained hospitalized for 166 days, until August 27th
  • Surgery on March 16th to place Penrose drain in abdomen to drain ascites
  • Surgery on May 5th – exploratory laparotomy and ileocolic resection in which approximately 14 inches of bowel was removed and an ileostomy was created (that was subsequently removed on September 2nd)
  • Transferred from LIJ to Columbia Presbyterian Medical Center in Manhattan where she remained until September 21st
  • Continuing short bowel syndrome secondary to NEC with frequent diarrhea, loose stools and frequent stomach pain

On October 26, 2009, when six year old Claudialee Gomez Nicanor was examined by her pediatrician, a test revealed that her blood had an excessive amount of glucose so she was referred to an endocrinologist in Elmhurst, Dr. Arlene Basa Mercado.

Dr. Mercado’s Office (in the basement of her sister’s house)

On October 31, 2009, Dr. Mercado examined Claudialee and diagnosed obesity and impaired tolerance of glucose. She assumed her patient was developing type 2 diabetes but failed to consider it could have been type 1 and determined that she would not respond to the administration of glucose. During the next three months, Claudialee was seen by the two doctors but no further treatment was prescribed.

On January 24, 2010, Claudialee died as a result of diabetic ketoacidosis (a serious complication of diabetes that occurs when one’s body produces high levels of blood acids called ketones).

In the ensuing medical malpractice case, plaintiff’s medical expert testified unequivocally that had Claudialee’s blood been tested on or before three days before she died, her type 2 diabetes would have been revealed and insulin would have saved her life.

After a six week trial, the Queens County jury determined that Dr. Mercado departed from good and accepted medical practice in her diagnosis, care or treatment of Claudialee and that the departure was a substantial factor in causing injury which resulted in her death. They then awarded pain and suffering damages in the sum of $400,000 (two days) plus economic damages for the monetary loss to Claudialee’s parents  in the sum of $100,000.

The estate’s counsel also sought punitive damages claiming that Dr. Mercado maliciously destroyed handwritten notes of her office evaluations of Claudialee that were recreated (after she knew she was about to be sued for malpractice) to suggest that the doctor had scheduled more timely follow-up examinations. The jury agreed that the defendant’s actions warranted the imposition of punitive damages and in a separate deliberation, the jury awarded punitive damages in the sum of $7,500,000.

On appeal in Gomez v. Cabatic (2d Dept. 2018), the defendant’s destruction of her records in an effort to evade malpractice liability was set forth in detail but the award of punitive damages was reduced to $500,000.

Inside Information:

  • The defendant did not appeal either the liability determination or the awards for pain and suffering and economic damages.
  • Dr. Mercado acknowledged that she destroyed her handwritten office notes but claimed that they were accurately and fully transcribed before being destroyed.
  • Eric Turkewitz at New York Personal Injury Law Blog, called this a case of first impression because the appellate court “upheld an award of punitive damages in a medical malpractice case – not for the conduct that led to the death, but rather, for the effort to evade liability.”

 

On July 30, 2008 Raymond Gaspard, then 59 years old, underwent his first colonoscopy. A suspicious polyp was discovered and Mr. Gaspard was referred to a colorectal surgeon who performed a second colonoscopy the next day. The polyp was too large to remove at that time; instead a CT scan was scheduled for five days later at which time a perforation in his colon was discovered.

Mr. Gaspard sued the colorectal surgeon alleging that the doctor failed to advise him regarding the signs and symptoms of a colon perforation following a colonoscopy, and then failed to properly treat the infected perforation after it had been detected in the CT scan.

A Kings County jury rendered a verdict in favor of the plaintiff and awarded him pain and suffering damages in the sum of $1,000,000 ($600,000 past – six years, $400,000 future – 16 years). Defendants’ post-trial motion to set aside the verdict was denied in a thorough, well-reasoned decision and, in Gaspard v. Aronoff (2d Dept. 2017), both the liability and damages verdicts have been affirmed.

Here are the injury details:

  • acute peritonitis and sepsis (with night sweats, fever, diarrhea, fatigue and extreme, agonizing stomach pain)
  • emergency Hartmann’s procedure  (to remove a foot-long section of the sigmoid colon and create a colostomy) with one week hospital admission

  • visiting nurses for one month to manage the colostomy bag (that was messy, smelly, cumbersome and embarrassing)
  • second surgery to reverse the colostomy four months after it was placed (with two week hospital admission due to complications from a bowel obstruction including fevers, projectile vomiting and extreme agony)
  • third surgery two years later – incisional hernia repair (due to improper healing of the surgical wound)
  • unable to return to work until early 2009
  • continuing episodes of incontinence and abdominal pain
  • diminished energy and stamina with resultant inability to return to prior levels of activity

Inside Information:

  • Defendants contended that plaintiff was not entitled to any recovery for past pain and suffering because there was no evidence he sustained pain and suffering beyond the colonoscopy complication. They also argued that there was minimal damage because plaintiff needed a colectomy in any event due to the mass that led to the CT scan.
  • Plaintiff’s pre-trial settlement demand was $500,000; there was no offer.
  • The jury deliberated for only 20 minutes before returning its verdict.
  • The trial featured two of New York’s leading and most respected medical malpractice firms – Godosky & Gentile, P.C. for plaintiff and Martin Clearwater & Bell, LLP for the defendants.

 

On August 25, 2011 Erica Abreu was admitted to Montefiore Medical Center in the Bronx for an elective Caesarean section.

C section

The delivery, by two obstetrician-gynecologists, took only about 15 minutes and Stanley Pina was born without any complications except for a laceration on his cheek. Mother and child were discharged to home three days later.

In her ensuing medical malpractice lawsuit on behalf of her son, Ms. Abreu contended that the  two doctors negligently caused the laceration when they entered the uterine cavity with a scalpel without knowing the location of the head. On May 21, 2015, the Bronx jurors agreed and they awarded pain and suffering damages in the sum of $400,000 ($150,000 past – four years, $250,000 – 21 years).

The trial judge denied defendants’ motion to set aside the verdict on liability grounds or to reduce it as excessive. On appeal in Pina v. Chuang (1st Dept. 2017), both the liability and damages verdicts have been affirmed.

Here is a photo of the infant plaintiff introduced at trial as an exhibit:

photo (2)

Here are the injury details:

  • 3 centimeter long laceration treated immediately following delivery by stitches while under local anesthesia (the sutures dissolved on their own)
  • Two weeks of home treatment cleaning and applying ointment
  • Permanent, though barely visible, scar

Both sides presented plastic surgery experts who agreed that (a)  the scar was not very visible and (b) no future treatment is recommended. Plaintiff’s expert, Robert A. Guida, M.D., testified that the scar could be surgically excised, treated with a laser or injected with steroid medication but he found the risks involved with each of these procedures outweigh the benefits. Defendants’ expert, Burt Greenberg, M.D., testified that the scar could be permanent but it would not at all be painful.

Inside Information:

  • From the date of his discharge from the hospital through the date of the trial, the infant received no further treatment for his laceration and scar.
  • Ms. Abreu testified that she is concerned that “one day he [her son] would try to get a job and since he’s a minority they are going to look at him a different way because he has a scar on his face.”

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 a summer day in 2004, Robert Wyble was pushing a lawnmower when his legs suddenly “gave out” and he fell to the ground. It happened again about a month later and then frequently in 2005.

BERLIN, GERMANY - JUNE 15: A worker mows strips of grass in front of the Chancellery with a lawn mower on June 15, 2011 in Berlin, Germany. Germany is currently enjoying summer weather replete with thunderstorms alternating with blue skies. (Photo by Sean Gallup/Getty Images)

Mr. Wyble, then a 42 year old self-employed landscaper, consulted a neurologist who diagnosed his condition as myasthenia gravis – a disorder caused by an interruption of the signals between the nerves and muscles, resulting in weakness of certain muscles.

In April 2009, after almost five years of treatment, it was discovered by another doctor that Mr. Wyble had been misdiagnosed and what he really had was cataplexy – a condition in which an individual falls for no apparent reason and then gets right back up again.

In Mr. Wyble’s ensuing lawsuit medical malpractice lawsuit, a Manhattan jury determined in March 2014 that the doctor who diagnosed myasthenia gravis had departed from accepted standards of medical care and that the departure was a substantial factor in causing significant injuries.

The jury then returned a verdict awarding pain and suffering damages in the sum of $3,500,000 ($2,000,000 past – nine years, $1,500,000 future – 28 years).

In Wyble v. Lange (1st Dept. 2016), the appellate court affirmed the liability finding but agreed with the defense that the damages award was excessive and ordered a reduction of the pain and suffering award to $1,100,000 ($900,000 past, $200,000 future).

Here are the injury details, involving years of rigorous treatment that addressed a condition Mr. Wyble did not have, none of which details were mentioned in the court’s decision:

  • thymectomy –   a major surgery with a 17 day hospitalization in which plaintiff’s thymus was removed when his chest was “split open” and then sewn back with wires, leaving plaintiff with a destabilized chest vulnerable to minor trauma, structural irritation and loss of strength in his upper body
  • 74 unnecessary plasmapheresis treatments (an invasive procedure in which blood was withdrawn, plasma was separated out and replaced with albumin and then the blood was returned) – every two days out of 14 for three years
  • scar tissue and pain at plasmapheresis port sites and scars on his chest and shoulder
  • infection in spine stemming from plasmapheresis, with 12 day hospitalization
  • immune system diminished leaving plaintiff more vulnerable to infections  for the rest of his life
  • prescription and administration of multiple, toxic, immunosuppressant drugs, all “directed at basically clobbering the immune system,” which, especially Prednisone, can cause cataracts, hypertension, diabetes and thinning of bones
  • unable to play with his children or resume playing softball
  • development of prolonged emotionally crippling depression that ended plaintiff’s 23 year marriage

thymus

Inside Information:

  • The jury also awarded loss of services and consortium damages to Mr. Wyble’s wife in the sum of $1,000,000 (past only – six and one-half years). The trial judge ordered a reduction to $100,000 (an amount accepted by Mrs. Wyble). On appeal, Mrs. Wyble sought an increase to $250,000. The appellate court ruled that her request was unpreserved but that in any event the reduced amount was proper.
  • Plaintiff’s wife was at his side during this ordeal for years and especially during the invasive and exhausting plasmapheresis treatments in which, under sterile conditions, she had to flush out the port line each time, clean it, and inject heparin in order to prevent clots. Mrs. Wyble left her husband and moved out of their home in December 2011 (thus terminating her damages claim as of the date she moved out): “I couldn’t do it anymore. … I wanted a husband and a family …. He was … there but not emotionally.”
  • The defense did not introduce any adverse medical testimony to challenge plaintiff’s evidence and medical expert concerning the nature and extent of his injuries.
  • The jurors awarded $1,100,000 more than plaintiff’s attorney, Richard A. Gurfein, suggested in his summation for future pain and suffering ($500,000 more) and loss of services and consortium ($600,000 more).