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 November 6, 2002 Miguel Erosa rushed to his local hospital in Queens complaining of unbearable pain in his stomach. It turns out he was suffering from appendicitis and he was admitted to the hospital where an emergency laparoscopic appendectomy was performed the next morning.

appendicitis2

Mr. Erosa was discharged from the hospital three days later, received routine follow-up medical care twice and returned to work as a mailman three weeks after his surgery. Unfortunately, Mr. Erosa’s abdominal pain remained present and even got worse, so bad that on February 9, 2003 he underwent a second abdominal surgery.

It turns out that the first surgery had been negligently performed in that the surgeon failed to completely remove the appendix causing an infection (stump appendicitis) and the need for the additional surgery. In his medical malpractice lawsuit against the surgeon, Mr. Erosa was awarded pain and suffering damages in the sum of $1,200,000 ($950,000 past – 10 1/2 years, $250,000 future – 26 years).

The trial judge agreed with the defense that the award was excessive and ordered a reduction to $275,000 ($250,000 past – $25,000 future), an amount affirmed on appeal in Erosa v. Coomaraswamy (1st Dept. 2015).

As set forth in the appellate court decision, defendant’s negligence left plaintiff with a large abdominal scar. Here is a trial exhibit from the case illustrating the scar:

Scar Photo (3)

The plaintiff, then 41 years old, exhibited his scar to the jury and in summation his attorney characterized it as “horrific” but the trial judge, in his post-trial decision, stated that the scar, “while far from pleasant looking or desirable, falls significantly short of … horrific.” The appellate judges apparently agreed.

In addition to the scar, plaintiff’s injuries included:

  • the need to undergo a second, more complicated, surgery (an open abdominal exploratory surgery) that would not have been needed but for the malpractice,
  • a six day hospital admission for abdominal pain between the dates of the two surgeries and a 10 day admission for the second surgery,
  • unable to return to work (as a letter carrier for the U.S. Postal Service) for almost three months,
  • development of incisional hernia and painful internal scars following the second surgery, and
  • several months of post-operative wound care.

Plaintiff testified that he was embarrassed by how he looked, refrained from going to the beach anymore, had been an avid athlete and could not return to playing handball and had digestive difficulties. The defense, though, noted that in the 10 years after the second surgery up to the date of trial, plaintiff had not gone to see any physician regarding his complaints.

Inside Information:

  • In his closing argument, plaintiff’s attorney asked the jurors to award pain and suffering damages in the sum of $1,550,000.
  • Plaintiff’s wife was awarded loss of services damages (also referred to as loss of consortium) in the sum of $125,000 ($100,000 past – 10 1/2 years, $25,000 future – 26 years) but that sum has been reduced to $50,000 ($30,000 past – $20,000 future). Plaintiff’s testimony in this regard was scant (e.g., intimate relations with his wife had “gone low”) and conclusory and the trial judge stated that “[n]either plaintiff’s testimony nor his wife’s was particularly convincing as to the supposed deleterious effect on their lives together.”
  • Before trial, plaintiff’s counsel made it clear to the judge that he would accept less than $150,000 to settle but defendants’ maximum settlement offer was $30,000.

On August 7, 2007 ten year old Roy Nelson, was sitting on a bench outside his apartment complex at 1125 East 229th Street in the Bronx when he was hit in the leg by a rock propelled at high velocity from a nearby lawnmower. It turns out that an employee of the housing development owner, the New York City Housing Authority (NYCHA), was mowing the lawn over a rocky area.

Edenwald Houses is the largest NYCHA development in the Bronx with 40 buildings on almost 50 acres.
Edenwald Houses is the largest NYCHA development in the Bronx with 40 buildings on almost 50 acres.

Roy’s father sued the housing authority on behalf of his son. The defendant conceded liability for the incident on the eve of trial and the matter proceeded to a trial on damages only.

On May 21, 2012, the Bronx jury awarded pain and suffering damages in the sum of $250,000 (all past – five years).

Both parties made post-trial motions – plaintiff argued that some award of future pain and suffering damages should have been made while the defendant argued that the $250,000 award was excessive. The trial judge denied both applications.

In Roy L. N., Jr. v. New York City Housing Authority (1st Dept. 2015), the appellate court upheld the jury verdict finding that $250,000 for past pain and suffering is not excessive. The issue of future damages was not addressed by the court because plaintiff did not appeal from the trial judge’s refusal to add such an award.

As set forth in the court’s decision, Roy sustained a spiral fracture of his left tibia along with soft tissue damage to the surrounding area. He was hospitalized for three days, underwent debridement of dead tissue and wore a hard cast for 6 1/2 weeks. He recovered with an unsightly keloid scar and his ability to engage in sports was significantly impeded because of the muscle and tendon damage.

Here are further injury details:

  • The fracture was proximal/mid tibia, open and extended through the cortex.
  • Initial hospital treatment included a massive irrigation and debridement to dilute the wound and remove dead tissue.
  • After his hospital discharge, Roy had to use crutches to ambulate and stayed home in the summer with his leg elevated.
  • Upon return to school in September, Roy was still casted and could not participate in any physical activities until January.
  • The keloid scar was 2 1/2 inches long and one inch wide; it is permanent and “cannot be improved.”
  • Roy still had leg pain at the time of trial but had returned to sports such as basketball within three months of the incident.

Inside Information:

  • In summations, plaintiff’s counsel asked the jury to award $300,000 for past pain and suffering plus $400,000 for the future. Defense counsel contended that plaintiff had fully healed and should be awarded no more than $50,000.
  • Each side produced an orthopedic surgeon. Plaintiff’s expert, Leonard Harrison, M.D. testified  that Roy had a mild residual condition that left him walking with his left foot tuned out and that he would always have pain when running, jumping and in cold weather. Defendant’s expert, Herbert Sherry, M.D., opined that plaintiff made an excellent recovery, needs no further treatment and has no limitations.
  • Plaintiff admitted that he’d been playing sports ever since a few months after his accident and that he can “slash down the lane” in basketball and run fast as a wide receiver in football, “but not as fast” as he used to.

On February 7, 2006, Roccio Rojas, a healthy 20 year old, donated her left kidney to her father, in a procedure known as a laparoscopic donor nephrectomy.

During the surgery, it was discovered that Roccio’s aorta had been lacerated – it was bleeding out extensively and Roccio was about to die.

Ms. Rojas’s abdominal cavity had to be opened, a subcostal incision was made and a hand placed inside to hold pressure. Then, a vascular surgeon had to be found immediately in order to suture the rupturing aorta.

Luckily, in an adjoining operating room there was a vascular surgeon – Danielle Bajakian, M.D.  –  who sutured the half centimeter aortic tear in an open emergency procedure that saved the life of Ms. Rojas.

Ms. Rojas had a much more difficult recovery than she and her doctors had planned, following a major open surgery instead of a laparoscopy and with a large abdominal scar and several lifetime medical concerns that she would not have had if her kidney surgery had gone as planned. So, she sued.

In the lawsuit, Ms. Rojas claimed that her urological surgeon had negligently cut her aorta which led to the need for the major open vascular surgery (to repair the aorta) and its consequences.On April 22, 2010, a Manhattan jury agreed and awarded pain and sufferng damages in the sum of $350,000 (150,000 past – 4 years, $200,000 future – 56 years).

Both sides appealed:

  • defendant argued that there was no basis for liability becasue the aortic injury is a recognized and acceptable risk of the kidney procedure and that the injury likely occurred spontaneously as a result of a failed staple
  • plaintiff argued that the evidence showed the aorta was cut with scissors, an unacceptable mistake and that the monetary damages awarded for the future were inadequate

In Rojas v. Palese (1st Dept. 2012), the liability verdict against the urological surgeon has been affirmed and the future damages award has been increased from $200,000 to $350,000.

As a result of the appellate court decision, plaintiff’s pain and suffering award is now $500,000 ($150,000 past, $350,000 future).

 Here are additional details of plaintiff’s injuries that are not in the decision:

  • 16 centimeter long, 2 centimeter wide, one-half inch raised hypertrophic scar near the bellybutton that is permanent, painful and embarrassing
  • 50% narrowing of the aorta (becasue the artery wall is incorporated into the stitching) requiring lifetime monitoring  for the development of renal vascular hypertension (high blood pressure due to narrowing of the arteries carrying blood to the kidneys) and claudication (pain caused by too little blood flow)
  • likelihood of future surgical intervention in the aorta

Hypertrophic scars, often resulting from thermal injuries, are hard, raised, tender and itchy. Here is an example of such a scar under someone’s arm

Typical laparoscopic nephrectomies do not leave hypertrophic scars. Instead, they leave small planned incisions that usually fade, like this:

 

Inside Information:

  • Ms. Rojas received six units of blood, replacing two-thirds of her blood volume, so that she did not die while her aorta was being repaired.
  • Dr. Bajakian, the vascular surgeon, was originally named a defendant in the case but the suit against her was discontinued before trial and she was ultimately called as a witness by plaintiff’s attorneys.