Shannon Reilly was born on November 1, 2002 at St. Charles Hospital in Port Jefferson. Doctors quickly noticed Shannon was suffering seizures and she was later determined to be suffering from cerebral palsy.

St Charles Hosp.

In the ensuing lawsuit against the hospital and the obstetrician, Shannon’s parents claimed that her delivery was improperly managed allowing a hypoxic event to occur causing brain damage and cerebral palsy.

The case was tried three times in Suffolk County.

  1. In 2009, the jury rendered a defense verdict. On appeal, the dismissal as to the physician was affirmed but the case was reinstated as to the hospital.
  2. In a 2012 retrial, the jury was hung so the case went to trial again.
  3. In a 2013 retrial, the jury reached a plaintiff’s verdict and awarded $130,000,000 in damages:
  • $92,500,000 for pain and suffering ($10,000,000 past – 10 years, $82,500,000 future – 55 years)
  • $5,500,000 loss of earnings capacity (29 years)
  • $32,000,000 (approx.) for future medical expenses (including $15,600,000 for a living center at age 44, $5,800,000 for home health aides, $5,600,000 for physical, occupational and speech therapies and $2,300,000 for medications)

On a post-trial motion, the judge reduced the awards for future medical expenses by about $3,000,000 and loss of earnings by $1,000,000. He also reduced the pain and suffering award by $85,600,000 to $6,900,000 (past to $400,000 and future to $6,500,000).

On appeal, the hotly contested liability finding has been affirmed in Reilly v. St. Charles Hospital (2d Dept. 2016), the awards for economic damages have been modified (resulting in an allowance of about the same $32,000,000 the jury awarded), the loss of earnings award has been reinstated and the pain and suffering award has been further modified downward and now stands at $4,250,000 ($750,000 past, $3,500,000 future).

In the latest decision, the appellate court referred to four previous appellate court decisions but with no explanation as to their significance. All were medical malpractice cases in which newborns sustained brain damage. The pain and suffering awards for the four plaintiffs were reduced from between $5,000,000 and $20,000,000 to between $2,250,000 and $4,250,000.

The citation to these cases, though unexplained, is important. It appears to relate to the differing positions of the parties in Reilly as to the application of the CPLR 5501 “deviates from what would be reasonable compensation” standard for the review of verdict amounts claimed to be excessive or inadequate.

Generally, to determine whether an award deviates materially from what would be reasonable compensation, the courts look to awards approved in similar cases, especially recent awards sustained by the appellate courts. To be “comparable,” the cases cited must involve injuries that are sufficiently similar to the nature, extent, circumstances and duration of the injuries sustained by the injured plaintiff.

Defendant argued on appeal in Reilly that CPLR 5501(c) requires the court to compare the pain and suffering awards in that case to approved such awards only in other medical malpractice infant brain damage cases, not to cases, as urged by plaintiff, that involve other catastrophic injuries with non-medical malpractice defendants. Applying that narrow construction, defendant argued, meant that the appellate court should compare the pain and suffering awards in Reilly only to other brain damage infant medical malpractice cases and that therefore the $4,250,000 sustained in 2007 for an infant diagnosed with cerebral palsy in Flaherty v. Fromberg should set the maximum limit for pain and suffering in Reilly as that was the highest sustained pain and suffering award in a brain damage infant medical malpractice case at the time Reilly was briefed.

Plaintiff argued that the pain and suffering award in Reilly as reduced by the trial judge from $92,500,000 to $6,900,000 should be increased to an amount commensurate with sustained awards for other persons (not limited to infants in newborn medical malpractice cases) who sustained catastrophic injuries (not limited to brain damage) such as the $16,000,000 sustained for pain and suffering in Peat v. Fordham Hill Owners Corp., discussed by us here, for a 37 year old man applying sealer to a floor in an unfinished apartment whose body was engulfed in flames when vapors from the sealing lacquer ignited and caused severe burns over much of his body.

Curiously, the decision in Reilly does not even mention the same court’s decision in Sence v. Atoynatan, issued seven weeks earlier, in which $9,015,000 was allowed for pain and suffering damages in a medical malpractice newborn brain damage case. We discussed the decision in Sence here.

Shannon Reilly suffers from hypoxic-ischemic encephalopathy, and will for the rest of her life. Here are some of the injury details:

  • cannot walk independently
  • is unable to control her tongue and mouth
  • has facial hypotonia, causing a drooling effect
  • will never be able to speak
  • will always be dependent upon others for all aspects of daily living
  • is incontinent
  • will require residence in a skilled nursing facility when her mother is gone
  • is well aware of everything going on and has emotional overlay that will continue to get worse
  • sleeps in a special needs bed
  • attends special needs school in a wheelchair

Inside Information:

  • The law firms in Reilly were Kramer Diloff, Livingston & Moore for plaintiff and Mauro Lilling Naparty LLP for the defendant. These are both very experienced, well-known and highly respected firms.
  • In 2009, before the defense verdict was rendered in the first trial, plaintiff’s settlement demand was $35,000,000 against an offer of $8,000,000. In 2013, before the $130,000,000 verdict, plaintiff’s settlement demand was $16,000,000 against which there was no offer from the defendant.
  • In the 2013 trial, the jury initially returned a verdict of $10,000,000 for past pain and suffering and $1,500,000 for future pain and suffering over 55 years. Plaintiff’s counsel then sought a sidebar arguing that it appeared the jury only awarded annual amounts rather than total dollar amounts. The judge then reinstructed the jury as to how they were to return their verdict on future damages awards and then they returned a revised verdict on the future damages awards, awarding $82,500,000 for future pain and suffering over 55 years.
  • Under Public Health Law Article 29-D, the New York Medical Indemnity Fund (the MIF) was established in 2011 to provide funds for future health care costs associated with birth-related neurological injuries caused by medical malpractice in order to reduce premiums for medical malpractice insurance coverage. Where, as here, plaintiff qualifies for the MIF, future medical expenses are paid out of the MIF rather than by the defendant. This reduced the defendant’s payout in this case by about $15,000,000.

 

Jaelin Sence was born on July 4, 2007 at New York Methodist Hospital (NYMH) in Brooklyn.  He was discharged two days later after examinations and tests indicated to hospital personnel he was normal and healthy.

photo of hospital
New York Methodist Hospital in Brooklyn

The next day, though, Jaelin began to vomit and show signs of serious illness. He was rushed to another hospital where he was diagnosed with hyperbilirubinemia and found to be severely neurologically and brain impaired.

After a two week trial in November 2013, a Kings County jury determined that the hospital and Jaelin’s private pediatrician had committed medical malpractice because Jaelin was suffering from jaundice during his admission at NYMH and they failed to properly examine, diagnose and treat him during that critical time (his first two days of life) when the tragic consequences that ensued could easily have been prevented.

The jury awarded pain and suffering damages in the sum of $11,015,000 ($4,000,000 past – six years, $7,015,000 future – 61 years).  On appeal in Sence v. Atoynatan (2d Dept. 2016), the past pain and suffering award was reduced to $2,000,000 and, thus, the total approved pain and suffering award is $9,015,000.

The main injury sustained by Jaelin is kernicterus (brain damage from severe hyperbilirubinemia), a condition that caused cerebral palsy.

Here are the injury details:

  • unable to move limbs voluntarily or in any useful manner
  • unable to walk
  • no head control
  • cannot feed or dress himself
  • cannot speak

Despite his physical and brain damage, Jaelin can see, hear and make sounds, he can track objects, responds to being called and he is aware. He goes to school and enjoys playing. According to plaintiff’s expert neurologist, an MRI showed there was no damage “in any part of the thinking brain;” instead, it showed problems in the cerebellum, which mainly involves movement.

brain-parts-near-pod-session-3-638

Based upon testimony from its expert neurologist, the hospital argued that Jaelin is unaware of his condition and will have a reduced life expectancy (10-15 years) and therefore the damage awards were excessive. Plaintiff argued, though, that the jury, having been shown a short video of Jaelin and having viewed him court, was able to judge for themselves Jaelin’s awareness and ability to interact. While the appellate court reduced the past pain and suffering award from $4,000,000 to $2,000,000, it did not comment upon or disturb at all the $7,015,000  future pain and suffering award,  apparently agreeing with plaintiff that Jaelin is aware of his condition and will have a life expectancy of 61 more years.

As set forth on the verdict sheet, the jury also awarded damages for:

  1.  future medical care expenses in the sum of $12,433,300 (including $7,330,000 for home health aides, $4,282,200 for therapy, $643,550 for medical equipment and $177,510 for medical costs, all over 61 years with growth rates of about 4% per year) and
  2.  future loss of earnings in the sum of $1,365,000 (over 39 years at the rate of $35,000 per year with growth rate increases of about 4% per year).

Inside Information:

  • Prior to and during trial, NYMH took a “no pay” position regarding settlement. After the verdict, plaintiff’s settlement demand was $12,000,000 against which the hospital offered to pay its liability insurance coverage of $7,500,000.
  • Jaundice is common in newborns but it is crucial that it be treated. Plaintiff’s attorney, the renowned Thomas A. Moore, said: “I don’t know if I have ever seen a more preventable case.”

 

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 November 4, 2003, Jennifer Luna, then 30 years old and 12 weeks pregnant, consulted her internist because she was not feeling well. The doctor conducted a physical examination and concluded that she had an enlarged thyroid which an ultrasound then confirmed along with the presence of five solid nodules. Ms. Luna was referred to an endocrinologist who examined her two weeks later and told her that her thyroid condition was due to her pregnancy and was benign.

thyroid_nodule32568691_s_0

It was not until December 2, 2004, though, that a biopsy was performed which revealed that Ms. Luna had medullary thyroid cancer.

In her ensuing malpractice lawsuit, a Suffolk County jury determined on December 1, 2011 that the doctors should have diagnosed the cancer 13 months before and that their failure to do so caused pain and suffering damages in the sum of $4,600,000 ($1,200,000 past – eight years, $3,400,000 future – 15 years).

The defendants made post-trial motions  to set aside the jury verdict on the issues of liability and damages and for a judgment dismissing the complaint. The trial judge granted the motions and plaintiff appealed.

In Luna v. Spadafora  (2d Dept. 2015), the judgments of dismissal entered pursuant to the post-trial decisions were reversed and the jury verdict on the issues of liability and damages was reinstated.

The 13-month delay in diagnosing Ms. Luna’s cancer caused the following injuries:

  • a change in the stage of the cancer from Stage II to Stage IV
  • a worsened prognosis and increased damages due to the metastasis of her cancer to her lymph nodes and eventually to her lung
  • a decreased 10-year survival rate – from 85-90% to only 40-50%
  • more extensive surgery to remove the cancer
  • two unnecessary surgeries (to remove additional tumor growth and implant a prosthesis)

thyroid_Tstage2

Inside Information:

  • Plaintiff had been employed as an information technology manager in a law firm and claimed that she became unable to work in March 2007. She was awarded damages for past loss of earnings in the sum of $358,875 and future loss of earnings for 28 years at the rate of $58,000 per year in the total sum of $1,624,000 (with a 2.5% growth rate).
  • Plaintiff’s spouse was awarded $250,000 for his loss of services/consortium claim.
  • Following the appellate court decision, the defendants moved to reargue and for leave to appeal to the Court of Appeals seeking, in part, a clarification as to the status of their claims that the damages awards were excessive. The motions were denied.
  • Plaintiff has survived to date, a fact that defendants argued is new and supported their request for reargument and a new trial. Plaintiff argued that this fact should not be considered on reargument as it was not in evidence before the jury and in any event about half of all people diagnosed with Stage IV metastatic medullary thyroid cancer will survive past 10 years.

Bennett Rose underwent three colonoscopies – on January 3, 2003, December 14, 2006 and October 11 2007, each indicating the presence of polyps (which were removed), none indicating any malignancy or cancer. About two months after the third test, though, Mr. Rose, then 72 years old, started feeling unusually weak and tired. He was diagnosed with anemia (very low hemoglobin), transfused in the hospital and he started feeling better.

The anemia returned, though, and a repeat colonoscopy on April 28, 2008 revealed a large eight centimeter cancerous tumor in the ascending colon which had metastasized and spread to his liver. He was diagnosed with cecal carcinoma which caused his death on July 15, 2009.

On March 26, 2013, in the ensuing medical malpractice wrongful death case, a Nassau County jury found that the gastroenterologist who performed the three colonoscopies had departed from accepted medical practice by failing to observe the tumor during the colonoscopy on October 11, 2007. The jurors then awarded damages in the sum of $700,000 ($500,000 for decedent’s pre-death conscious pain and suffering  and $200,000 for Mr. Rose’s wife’s loss of services – each for the 15 month period from 4/28/08 to 7/15/09).

In Rose v. Zinberg  (2d Dept. 2015), both the liability and damages verdicts have been affirmed.

Here are some of the damages details, none of which are discussed in the court’s decision:

  • fear of impending death upon diagnosis of metastasis
  • surgery on May 6, 2008 – laparoscopic partial colectomy and removal of the terminal ileum with ileocolostomy, along with removal of a tumor
  • 29 chemotherapy treatments with side effects including fingertips and toes neuropathy, blunted taste, trouble sleeping and a loss of 35 pounds
  • loss of performance status
  • diminished choices as to palliative treatment
  • advancement of metastatic disease, hastening of death and loss of quality of life
  • hospitalized final 10 days before death

While plaintiff’s medical expert conceded that by October 11, 2007 (the date the jury found that malpractice occurred) Mr. Rose’s cancer had already spread and that there was no cure, he explained “performance status” and testified that had the cancer been caught six months earlier, Mr. Rose’s overall condition would have been better, the cancer would not have grown as fast, his quality of life would have been better and he could have had more, better and less sickening treatment.

The defendant argued that plaintiff’s expert’s testimony was conclusory and speculative and that there was insufficient proof that Mr. Rose suffered any injury separate and apart from his cancer itself which was proximately related to the six month delay in diagnosis.

Mrs. Rose testified that during her husband’s final 15 months he depended upon her and couldn’t do things in the house such as empty the garbage and walk the dog so she “took over whatever had to be done.” He did, though, work in his nail polish manufacturing business with his wife every day until the last 10 days of his life.

Inside Information:

  • In his closing argument, plaintiff’s attorney stated as to damages: “I can only tell you that this case is certainly a mid six-figure, possibly even low seven figure number, depending on how people feel about compensation for pain and suffering.” Defense counsel did not suggest any figures, instead simply arguing that there was no malpractice.
  • After the judge charged the jury, they deliberated for several hours before sending out a note asking if one of the jurors could “abstain from fixing a monetary amount.” They returned their 5-1 verdict 45 minutes later.
  • The defendant sought leave to appeal to New York’s highest court, mainly arguing that plaintiff had failed to prove proximate cause in addition to the lack of evidence of consequential damages.  The motion was denied.

In 2002, Ciciline Reid was a 49 year old grandmother who worked seven days a week as a home health aide. On July 28th, she  presented to the Montefiore Medical Center emergency room complaining of swelling on the side of her neck and pain on swallowing that was diagnosed as a sore throat and gland infection. She was administered intravenous antibiotics, her condition improved and she was discharged after four days.

Montefiore Med Ctr

Unfortunately, Ms. Reid’s symptoms persisted and after several doctor visits over the next four months, she ended up in the hospital again on December 7, 2002  and was diagnosed with lymphoma (a cancer of the lymphatic system).

NYEE

For the next two years, Ms. Reid underwent aggressive treatment and despite complete (but only three or four months) remission, the cancer relapsed and she died from the disease on January 11, 2005.

In the ensuing lawsuit, medical malpractice claims were made against the hospital and three physicians for failing to diagnose the lymphoma when Ms. Reid first presented to the hospital in July.

Plaintiff’s expert oncologist testified that a biopsy of an abnormally enlarged lymph node seen on a CAT scan in plaintiff’s neck should have been performed promptly upon plaintiff’s initial treatment at the hospital and that it would have revealed the lymphoma.

The trial in Bronx County concluded on December 6, 2012, after the judge charged the jurors as to the law and then they returned a verdict as to liability specifically finding that:

  1. plaintiff had lymphoma as of July 28, 2002
  2. the hospital, through its physicians, was negligent in not diagnosing lymphoma until November 15, 2002, and
  3. the physician remaining as a defendant (two others had been voluntarily dismissed by the plaintiff before trial) was not negligent

The jury also addressed damages and awarded the sum of $2,400,000 for plaintiff’s pre-death pain and suffering.

Here is the actual verdict sheet completed by the jurors.

The hospital appealed both the liability finding and the damages award. In Reid v. Bharucha (1st Dept. 2015), the malpractice verdict against the hospital was affirmed but the appellate court reduced the pain and suffering award to $2,000,000.

As indicated in the decision, the pain and suffering award was for “one year of additional cancer treatment.” There was evidence that had the lymphoma been diagnosed in July it would then have been Stage I or II with about an 85% prognosis for survival but that because it was not diagnosed until November it was by then Stage  IV with the “worst prognosis.”

Ms. Reid underwent an eight cycle chemotherapy regimen  with each cycle repeated every three weeks. She would have needed that in either event.

Her cancer remained in remission for almost a year but her expert oncologist testified that had she been diagnosed with lymphoma in July or August, she would have had “an overwhelmingly better response and prolonged remission ….”

Additional treatment following the chemotherapy was needed (which plaintiff’s expert testified could have been avoided had the earlier diagnosis been made) including:

  • bone marrow and stem cell transplants
  • immunotherpay
  • additional sessions of high dose chemotherapy with 10 additional hospital admissions
  • splenic infarction (tissue death)
  • increased and additional unremitting pain and suffering requiring a morphine pump, Fentanyl patches and other powerful narcotic medicines

The jury also awarded damages for medical expenses, loss of earnings and loss of parental guidance (regarding Ms. Reid’s two adult children). These awards were addressed in a post-trial decision and in the appellate court decision as follows:

  • Medical Expenses – $450,000 affirmed
  • Loss of Earnings – $60,000 (reduced by the trial judge from $1,200,000)
  • Loss of Parental Guidance – $10,000 to each child (reduced from $50,000 each)

Inside Information:

  • After the jury began its deliberations, defense counsel offered $750,000 to settle the case. The offer was rejected.
  • The medical expenses award was in the amount of the lien asserted for the items paid before Ms. Reid’s death. Defense counsel argued, unsuccessfully, that because the malpractice did not cause the cancer this award should have been reduced to reflect only those items that related to the additional one year of cancer treatment that was necessary due to the delayed diagnosis.

On April 14, 2005 Adina Raso, then 14 years old, had two impacted wisdom teeth extracted by an oral surgeon in Stony Brook.

wisdomteeth1

A week or so later, Adina noticed that she was experiencing paresthesia (numbness) and had no sensation or taste on the left side of her tongue and the gums of her lower left jaw. Also, she was experiencing shooting, electric-shock type pain on a sporadic basis.

Within a few months, Adina was diagnosed with a traumatic injury to her left lingual nerve and she sued her treating surgeon claiming that her numbness and related injuries were caused when he negligently severed the nerve.

Intra Operative View of Lingual Nerve with Anesth to tongue

On March 18, 2014, a Suffolk County jury found that there had indeed been a departure from good and accepted standards of dental care during the extraction and they awarded Adina pain and suffering damages in the sum of $25,000 (all past – nine years).

Plaintiff promptly sought an increase in the amount of damages, arguing that $25,000 for nine years of past pain and suffering was an inadequate award and that the jury’s failure to award any future pain and suffering damages was irrational. The trial judge agreed, in part, and on August 4, 2014 he issued a decision awarding future pain and suffering damages in the sum of $120,000.

On defendant’s appeal, in Raso v. Jamdar (2d Dept. 2015),  the future pain and suffering damages award has been vacated. The jury’s total verdict of $25,000 has been reinstated.

The appellate court held that the jury’s failure to award any damages for future pain and suffering was properly based upon the evidence and the jury’s assessment of the credibility of the witnesses. Unfortunately, the decision omitted any references to the injuries or the issues underlying the credibility determinations. Here are the details:

  • New surgery on 11/14/05 – to repair the left lingual nerve (in which, under general anesthesia, a new surgeon was able to anastomose (reconnect) the nerve ends.
  • Plaintiff testified at trial that while her condition had much improved after the repair surgery, she continued to suffer from a mild altered taste sensation (could not “experience the full depth of flavor of food”) and mild paresthesia. She admitted that she no longer had any pain, was not taking any medication or undergoing any treatment for her injury, had no difficulty singing, her social life was unaffected and she regularly engaged in athletic activities.
  • A defense expert examined plaintiff in 2009 and testified that there was no objective evidence of any permanent damage.
  • Dental records in evidence indicated that in October 2008 plaintiff stated she had no “serious” or “difficult problems associated with any previous dental work.”

Inside Information:

  • Plaintiff’s pre-trial settlement demand was $350,000 and her attorney asked the jury to award $650,000.
  • Plaintiff argued that future damages should have been awarded because the defense expert testified that he made diagnoses of mild paresthesia and mild alteration of taste; however, he further testified that his diagnoses were based on “what the patient reports to me” and defense counsel argued that the expert’s finding that there was no objective evidence of permanent damage was much more important than plaintiff’s “subjective and self-serving” responses to the expert’s questions.

 

 

Wilbur Rodriguez, a 44 year old postal worker, went to a hospital emergency room in Manhattan at 11:45 a.m. on Saturday, January 24, 2009. He complained of shortness of breath that started the day before, fever and chills. He was diagnosed with pneumonia and, after 12 hours in the ER, admitted and assigned a room.

Rodriguez was seen in his room every hour or so continuing to complain of shortness of breath and being treated with oxygen via nasal canula or mask. He was last seen by a nurse at about 4 a.m. who noted he had no signs of shortness of breath at that time.

A patient (not Rodriguez) receiving oxygen therapy:

Forty minutes later he was found unresponsive, could not be resuscitated and was pronounced dead an hour after that.

An autopsy report concluded that the cause of death was “bronchopneumonia complicating diabetes mellitus.”

His mother, Evelyn Rivera, a Bronx resident, was his sole survivor and she commenced a lawsuit against the hospital claiming that doctors should have more closely monitored her son by (a) transferring him from the ER to the intensive care unit and, later, (b) transferring him from his room (on a general medical floor) to an appropriate area in the hospital with continuous monitoring.

On April 18, 2012, the Bronx jury rendered a verdict finding that the hospital had indeed negligently caused the death of Mr. Rodriguez as alleged and they awarded economic damages for his mother’s loss of household services in the sum of $720,000 ($40,000 past – three years, $680,000 future – 17 years). The jury declined to award any sum at all for pre-death conscious pain and suffering.

Both parties asked the trial judge to set aside the verdict.

  • Plaintiff argued that there was no basis for the jury to conclude Rodriguez had not suffered in the five minutes or so before he died in view of (a) the many references in the hospital record that Rodriguez had difficulty breathing and was hypoxic, (b) the autopsy report concluding that pneumonia was the cause of death and (c) the testimony of his medical expert Mark Schiffer, M.D. , that the cause of death was respiratory failure due to bronchopneumonia which would necessarily cause suffering as Rodriguez fought, and lost, his battle to breathe.
  • Defendant argued that the future household services loss award was excessive.

The judge granted the defendant’s motion to the extent of ordering a reduction of the future household services award to $340,000 but she denied the plaintiff’s application to set aside the award of $0 for pain and suffering and/or for a new trial on that issue.

In Rivera v. Montefiore Medical Center (1st Dept. 2014), the judge’s post-trial decision has been affirmed. Plaintiff’s award now stands at $380,000 (all for her household services loss).

As indicated in the decision, it appears that the jury awarded nothing for pain and suffering because of testimony from defendant’s emergency medicine expert Mark Silberman, M.D.  that Rodriguez “most likely” died from a sudden, unexpected cardiac arrhythmia (an irregular heartbeat), died instantly and he did not suffer at all. The expert based his conclusion, in part, upon the fact that the autopsy report documented left ventricular hypertrophy (an enlargement of the left side of the heart – the pumping mechanism – which increases risks for cardiac problems).

Ms. Rivera testified that her son had never married, had no children, lived alone and that every day after work he would visit her apartment for two or three hours and help her with household chores (such as  cleaning and shopping). Calculation of her loss of household services claim was based upon the testimony of expert economist Alvin Mickens, Ph.D., who used statistical averages of 15.5 hours a week and an hourly rate of $13.66 to arrive at a 17 year total of $286,202. Therefore, both the trial judge and the appellate court determined that the jury’s award of $720,000 for household services was excessive. They did, though  allow $380,000 (still an amount that was more than the economist calculated) since “pecuniary damages need not match the expert’s assessment exactly.”

Ms. Rivera also testified that her son gave her at least $600 every month to help support her. She, therefore, claimed loss of support or inheritance damages in the sum of $600 per month from the date of her son’s death up through her own life expectancy of about 17 more years. That would have added at least $125,000 in damages; however, there was no documentary proof such as bank records or checks to evidence these payments so the trial judge ruled that plaintiff was precluded at trial from pursuing this claim.

Inside Information:

  • During trial, there was a $300,000 settlement offer and an indication that the defendant would offer more. Ms. Rivera rejected the offer and stated on the record (outside the presence of the jury) that no amount of money would resolve the case and she wanted the jury to render a verdict.
  • In his closing argument, plaintiff’s counsel suggested an award of $600,000 for pain and suffering plus $290,000 for loss of household services.
  • The loss of support or inheritance claim might be the subject of a new, separate appeal because it was not raised or discussed in the context of the post-trial motion and the appellate court stated it was “not properly before us on appeal.”

 

 

On August 31, 2006,  after his usual morning coffee at home in Staten Island, Robert Messina got up and went outside to drive to work. He never made it past the outside of his car where his wife found him – without his keys, shirtless and confused.

An ambulance was called and the 58 year old Messina was taken to the local hospital where he presented with an acutely altered mental status and fever. He was intubated and sedated to facilitate a full work-up, including a lumbar puncture to rule out encephalopathy (brain disease).

After four days in the hospital, doctors noted the presence of a Stage IV pressure ulcer (a bed sore) on Mr. Messina’s right hip.

In a Stage IV pressure ulcer, the skin breakdown extends into the muscle and can extend as far down as the bone. Usually lots of dead tissue and drainage are present:

Messina developed many other bed sores, infections and significant debilitating complications over two months of treatment until he was discharged to a nursing home on October 27, 2006 where he remained (except for three readmissions to the hospital) until October 24, 2007 when he was discharged to home and cared for thereafter with visiting nurse services.

In his ensuing lawsuit, Messina claimed the hospital was negligent because the nurses failed to render appropriate care which led to (a) the development of bed sores and (b) the development of infected bed sores.

The defendant contended that Messina came into the hospital with a life threatening condition, “on death’s doorstep,” and that neither the doctors nor the nurses who treated him did anything wrong.  Defense counsel told the jury that Mr. Messina’s “biggest problem was his lifestyle” – he was morbidly obese (375 pounds) , diabetic, had hypertension and had been a heavy smoker for 40 years – and that as a result Messina developed respiratory problems as well as a kidney problem requiring temporary dialysis in the hospital. Thus, counsel argued, the hospital staff “saved his life” and did not cause plaintiff’s pain and suffering.

Plaintiff’s counsel countered that the injuries sustained in this case were foreseeable and preventable and that Mr. Messina was literally abandoned for days at several critical times by the nurse in charge of wound care treatment.  Furthermore, the fact that Mr. Messina had serious medical conditions that landed him in the hospital, counsel argued, was not at all a reason to exculpate the hospital from negligence; rather, it required “greater vigilance” and a departure from the “cookie-cutter care” that was rendered and not changed during plaintiff’s initial admission.

Plaintiff’s emergency medicine and wound care expert, Kelly Johnson-Arbor, M.D., made three findings:

  1. treatment of the pressure ulcers was not adequate and kept them from getting better,
  2. plaintiff was not provided with appropriate pressure relief surfaces (such as a bed specifically designed for patients as overweight as plaintiff was), and
  3. the nursing staff did not look for the presence of osteomyelitis which was very likely present during his first admission.

The type of bed (which is used with a six inch thick mattress), from Big Boyz Industries, that plaintiff’s expert testified should have been used to give plaintiff more pressure relief and reduce the likelihood of osteomyelitis:

On June 3, 2011, the Richmond County jury found that the hospital was negligent in its care and treatment of plaintiff during his initial two month admission and they awarded damages in the sum of $5,402,748 as follows:

  • pain and suffering damages in the sum of $2,992,000 ($1,000,000 past – five years, $1,992,000 future – 16.6 years)
  • future medical costs in the sum of $2,193,748
  • future lost earnings (Messina had been a kitchen designer) in the sum of $162,000 (3.6 years) and
  • loss of services and economic damages to plaintiff’s spouse in the sum of $55,000

In Messina v. Staten Island University Hospital (2d Dept. 2014), both the liability finding and the damages awards have been affirmed.

The court’s decision mentions that plaintiff sustained skin ulcers but otherwise contains no mention at all of the extensive injuries in this case which include:

  • development and progression of right hip sacral decubitus ulcers, Stage IV
  • infection of right hip ulcer with osteomyelitis leading to a dislocated hip that needs replacement surgery but doctors have declined to operate because the bone is chronically infected
  • bilateral buttocks decubitus ulcers, Stage IV
  • right heel and bilateral feet decubitus ulcers, Stage IV
  • scrotum and penis ulcers
  • severe infections of ulcers
  • more than a dozen surgical debridements
  • inability to take care of bodily and toilet functions
  • constant pain requiring Morphine and Percocet
  • massive scarring
  • permanent confinement to wheelchair (except for being able to take a few steps with a walker)

Inside Information:

  • There was confusion in the courtroom when the jury announced its verdict. After awarding $1,000,000 for five years of past pain and suffering they awarded only “$120,000 for 11.6 years” for future pain and suffering. Plaintiff’s counsel, Mitchel Ashley, asked the judge to bring the jury back and question them because it appeared that the jurors intended the $120,000 to be multiplied, and by 16.6 (not 11.6) years, in order to come up with the actual amount for total future pain and suffering.  Also, the jury initially awarded “$132,153.50 for 16.6 years” for future living expenses. After questioning the jurors and sending them back to deliberate twice more, it became perfectly clear that their intention was to award $1,992,000 for future pain and suffering and $2,193,748.10 for future medical expenses (in each case, for 16.6 years).
  • Defense counsel highlighted the fact there was no diagnosis of osteomyelitis in the initial admission records of the hospital and argued that the wound infection did not occur until plaintiff was at the nursing home. Plaintiff’s wound care expert, though, testified that either an MRI or a bone scan is the definitive test to evaluate osteomyelitis, neither was performed and this failure prevented early diagnosis of and treatment for chronic osteomyelitis (without which wounds were kept from healing and further debilitating infections developed).
  • The jury found that the nursing home had also been negligent in the manner in which it cared for plaintiff  and that its conduct contributed to causing plaintiff’s ulcers or osteomyelitis. The jury apportioned liability 75% to the hospital and 25% to the nursing home. Before trial, though, plaintiff had voluntarily discontinued his lawsuit as against the nursing home. Accordingly, the hospital remained the sole defendant liable to pay the damages awarded.
  • Charles Kincaid, Ph.D., testified as a life care planner expert for plaintiff (the defense did not call its own expert) and the jury essentially accepted his figures as to plaintiff’s future medical expenses.

 

 

 

 

 

 

On March 25, 2004, Johnson Devadas, a 25 year old pharmacist, consulted with ophthalmologist Kevin Niksarli, M.D. to determine his candidacy for Laser-Assisted In-Situ Keratomileusis (known as LASIK – a procedure that uses a laser to correct certain vision problems and reduce a person’s dependence on glasses or contact lenses).

Dr. Niksarli evaluated Mr. Devadas and found him to be a good candidate for the procedure which was then performed upon both of his eyes on April 7, 2004. He followed up with the doctor the next day, a week later and a month later.

On February 21, 2007, Devadas next (and last) returned to the doctor with complaints of blurriness and double vision. He’d developed ectasia, a progressive thinning and bulging of the corneas that causes diminished visual function.

On May 31, 2007, Devadas filed a medical malpractice lawsuit against Dr. Niksarli claiming that the doctor failed to disclose the risks of the procedure and that he would not have undergone the surgery had adequate disclosure been given beforehand.

It turns out that Devadas had a mild or early form of keratoconus known as forme fruste keratoconus that (a) was not but should have been diagnosed by Dr. Niksarli and (b) contraindicated the LASIK surgery.

On June 10, 2009, after a nine day trial, the Manhattan jury returned a verdict in plaintiff’s favor finding that the defendant committed malpractice by (1)  performing surgery that was contraindicated and (2) failing to obtain informed consent prior to the surgery.

The jury awarded pain and suffering damages in the sum of $3,100,000 ($100,000 past – five years, $3,000,000 future –  45  years).

On appeal, the defense argued that the pain and suffering award was excessive because after the surgery plaintiff had near 20/20 visual acuity.

Plaintiff persuasively countered, though, that visual function has two components – quantity (i.e., visual acuity) and quality – and that his visual quality was so impaired that it left him with many permanent, significant deficits including:

  • double vision
  • blurry vision (with resulting headaches)
  • starbursts and halos
  • chronic dry eyes (limiting his ability to wear contact lenses to six hours a day and leaving him with severely diminished functional vision for 18 hours a day)
  • poor night vision resulting in inability to drive at night (after contacts are removed due to intolerance)
  • inability to resume recreational bowling or billiards
  • diminished ability to complete household tasks including cooking and home repairs

In Devadas v. Niksarli (1st Dept. 2014), the appellate court affirmed both the liability finding and the pain and suffering damages awards.

In addition to pain and suffering damages, Devadas was awarded (and the appeals court sustained)  $60,000 for past loss of earnings and $20,000 a year for 37 years for future loss of earnings. These awards were based, in part, on plaintiff’s inability to fill as many prescriptions as he used to and the additional costs incurred when he had to hire a pharmacy technician to serve as another pair of eyes to double-check his accuracy.

Inside Information:

  • The loss of consortium claim was dismissed on appeal because the continuous treatment doctrine that allowed plaintiff to avoid the statute of limitations defense (2 1/2 years in medical malpractice cases) has been held by the courts to be personal to the recipient of the medical treatment and does not extend to spouses.
  • Plaintiff had signed an informed consent form document on the day of surgery but claimed that the administration of Valium shortly before he reviewed and signed the form was inappropriate. Also, there was a handwritten informed consent note that plaintiff argued, through an expert forensic chemist who specializes in the examination of questioned documents, was created by the defendant years after the surgery and intentionally artificially aged by him.
  • Plaintiff’s attorney, Todd J. Krouner, has successfully prosecuted dozens of LASIK and related eye medical malpractice cases and is the premier attorney for LASIK cases in New York.