Future Medical Expenses

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 August 7, 2010,  Anil Sehgal was preparing to stop at a red light at the intersection of Fifth Avenue and West 57th Street in Manhattan when his car was struck from behind by another vehicle. Mr. Sehgal’s wife, Renu, was in the front passenger seat. Both claimed serious injuries as a result of the crash and sued the other driver (and the owner of the other car).

Plaintiffs moved for partial summary judgment on the issue  of liability. After denial, the motion for summary judgment was granted on appeal following which a damages only trial was held.

The Queens County jurors returned verdicts awarding Mr. Sehgal pain and suffering damages in the sum of $200,000 ($150,000 past – three years, $50,000 future – 18 years). They also awarded him damages for future medical expenses in the sum of $505,050 (18 years) and his wife damages for her loss of her husband’s services/consortium in the sum of $100,000 (past only).

In a  post-trial motion, defendants argued that both the future medical expenses and loss of services awards are excessive and against the weight of the evidence. The trial judge denied the motion and on appeal In Sehgal v. www.nyairportbus.com, Inc. (2d Dept. 2017), both awards have been affirmed.

Here are the injury details as to Mr. Sehgal:

  • herniated disc at C5-6 requiring anterior cervical discectomy, corpectomy and fusion surgery with instrumentation and allograft
  • herniated discs at L1-3
  • partial thickness tearing of right shoulder rotator cuff requiring arthroscopic surgery
  • unable to bend, stand for long periods of time or lift anything heavy

Plaintiff’s claim for an award of future medical expenses was supported by the testimony of Alexandre DeMoura MD. (his spine surgeon) and Ali Guy, M.D. (a physiatrist who prepared a life care plan detailing the expenses including many years of medical treatment, physical therapy, diagnostic testing and epidural injections, as well as future back surgery and an additional neck surgery).

The only expert testimony for the defense was from orthopedic surgeon Gregory Montalbano M.D.  (who opined that Mr. Sehgal’s right shoulder prognosis is very good and should not be problematic in the future, he sustained at most a cervical strain or sprain rather than a herniated disc which in any event was degenerative – not traumatically induced – and he  has no permanent disability or significant limitation).

The defense had intended to impeach plaintiff and Dr. Guy regarding the life care plan by showing that plaintiff’s attorneys, by whom he was employed in a clerical position, had referred him to Dr. Guy “as part of an attempt to build up the monetary value of his claim and not for genuine medical treatment.” At the start of trial, though, the judge granted plaintiff’s application to preclude the defense from asking Mr. Sehgal questions as to how he was referred to Dr. Guy (or his other medical providers).

As to the loss of consortium claim, plaintiff, then 59 years old, testified that he’s become dependent upon his wife and others for many activities of daily living – he can no longer mow the lawn, clean the cars, vacuum the house or help his wife with cooking. Mrs. Sehgal testified that his injuries have affected “his love and affection.” The defense noted that Mr. Sehgal missed only 45 days from work due to his injuries and claimed that his condition has greatly improved and there was no evidence that he could no longer provide the benefits of marriage, including, love, companionship, society and sexual relations.

Inside Information:

  • Mrs. Sehgal claimed disc herniations at C3-4 and L5-S1; however, the jurors determined that her injuries did not meet the serious injury threshold under Insurance  Law Section 5102(d) and they awarded her no damages. She did not appeal.
  • In closing arguments, plaintiff’s attorney asked the jurors to award Mr. Sehgal $1,250,000 in damages for his pain and suffering and Mrs. Sehgal $150,000 for her pain and suffering plus $100,000 for her loss of consortium claim; defense counsel argued that the jurors should “not award the Sehgals anything” because neither sustained a serious injury from the accident.