Hip Replacement Surgery

On May 26, 2010, Anthony Rivera was driving his car on Long Ridge Road in Pound Ridge when another car made a left turn and crashed into him. Mr. Rivera, then 30 years old,  sustained significant hip and knee injuries.

Mr. Rivera sued the driver and owner of the other vehicle and was awarded summary judgment of liability. The case then proceeded to a trial to determine the amount of damages.

The Westchester jury awarded plaintiff pain and suffering damages in the sum of $1,300,000 ($300,000 past – five years, $1,000,000 future – 40 years). He was also awarded damages for medical expenses ($170,000 past, $240,000 future) and loss of earnings ($75,000 – past). The awards have been affirmed in Rivera v. Kolsky (2d Dept. 2018).

Here are the injury details:

  • Intra-articular comminuted fracture dislocation of left hip (posterior wall acetabular fracture plus osteochondral femoral fracture) requiring two days of skeletal traction with the insertion of a distal femoral traction pin and then removal of the pin, open reduction internal fixation of the acetabular fracture with a bone graft harvest, screws and a nine-hole plate and open treatment of the femoral fracture
  • Three week emergent hospital admission followed by five week admission to nursing home for rehabilitation
  • Continuing pain and limited range of motion in hip and post-traumatic arthritis requiring hip replacement surgery within four years
  • Left knee torn meniscus requiring total knee replacement surgery within three to five years

 

A Post-Op X-Ray Similar to Plaintiff’s

Before the accident, plaintiff had been working at Home Depot earning about $25,000 a year. He was out of work for three years after the accident when he returned to Home Depot in the kitchen design department. There was no claim for future loss of earnings.

The defendants’ theme at trial was that plaintiff exaggerated his injuries. They conceded he sustained a significant hip injury with residuals but argued that “he’s driving, he’s going to work, he’s not using a cane … he does everything everybody else does” and he deserves no compensation for his alleged knee and pre-existing back injuries. The verdict sheet contained a specific question as to  whether the accident was a substantial factor in bringing about the injury to plaintiff’s back and they answered “no.” As to the knee, an MRI shortly after the accident disclosed a torn meniscus but two years later, another MRI was taken and plaintiff’s treating doctor then opined there was no meniscal tear and he elected not to perform an arthroscopy. Plaintiff’s medical expert at trial disagreed. The defense position was that there was no tear and any knee pain plaintiff was experiencing was due to his morbid obesity.

Inside Information:

  • Defendants opposed plaintiff’s pre-trial motion for summary judgment as to liability claiming that (a) winding, blind curves at the accident location caused the defendant driver to be unable to see the plaintiff’s vehicle and (b) plaintiff may have been speeding. These arguments were rejected and plaintiff’s motion was granted.
  • After plaintiff and his medical expert testified, the defendants rested without calling any witnesses.
  • In his summation, plaintiff’s attorney suggested $6,000,000 for pain and suffering damages; defense counsel simply stated that the jury should award what is reasonable or adequate (for the hip only), adding “He’ll probably blow it on something anyway, but at least give him what he’s entitled to for the hip.”
  • Plaintiff’s pre-trial settlement demand was $1,000,000 against an offer of $350,000.
  • This case was hard fought by one of New York’s most highly regarded plaintiff personal injury lawyers, Michael Ronemus and a worthy counterpart from the defense side, Robert Ondrovic.

On November 5, 2005 at about 7:30 p.m., Theresa Guss was injured in a trip and fall accident in the street when she stepped into a large rectangular deep hole in the street while getting out of the back of a taxicab at the curb abutting her home on Ainslie Street in Brooklyn.

The cab driver heard her scream in pain, found her on the ground and helped Ms. Guss get into her home. It was a Friday night and Ms, Guss, then 54 years old, stayed at home in pain until Monday when she called an ambulance to take her to the local hospital complaining of severe left hip pain and an inability to walk due to the pain. She was diagnosed with a left hip fracture and admitted for surgery.

Anterior view of hip bone and the head of the femur with femural neck fracture; SOURCE: rendered from 3D_normal_hip.mb; orthosurg_replace-hip-total-arthritis_normal_anatomy_line MOD femural neck fracture line Reference: using Zygote skeletal model and texures

In the ensuing lawsuit against the City of New York, on June 11, 2013, a Kings County jury determined that the city had created the hole in the street during an excavation there six weeks before the incident and, therefore, despite the absence of prior written notice, the city was liable for plaintiff’s injuries and resulting monetary damages.

In Guss v. City of New York (2d Dept. 2017), the liability verdict was affirmed but the appellate court agreed with the city that a substantial portion of the damages award was excessive.

The jury awarded $650,000 for pain and suffering   ($433,333 past – 7 1/2 years, $216,667 future – 8 years), an amount that was not challenged on appeal or addressed by the appellate court.

In addition to the award for pain and suffering, the jury awarded $2,025,600 for future medical expenses which included $1,344,000 for future nursing home costs. Finding that aspect of the future medical expenses award unsupported by the evidence and duplicative of the $681,600 awarded for other future medical expenses, the court reduced the future medical expenses award to $681,600.

Here are the details as to the eight years of future medical expenses awarded by the jury, as set forth on the verdict sheet:

  • doctors’ care – $139,600
  • physical therapy – $14,400
  • mental health care – $14,400
  • nursing home care – $1,344,000
  • medications – $480,000
  • transportation – $19,200
  • medical equipment – $14,000

The medical expenses awards were based upon the testimony of plaintiff’s expert in physical medicine and rehabilitation who examined plaintiff in 2011 and reviewed all of her medical records. The city did not produce an expert of its own. Instead, the city argued successfully that, in view of the fact that by the time of trial in 2013 plaintiff was already residing at Nesconset Center for Nursing and Rehabilitation since 2011 and was bedridden, suffering not only from the hip fracture and related complications but also from serious and significant pre-existing medical conditions such as chronic obstructive pulmonary disease (COPD), osteoporosis and depression, and in view of the fact that the nursing home medial records and invoices were not produced, there was duplication and speculation in the award as to the $1,344,000 awarded for nursing home care.

nesconsent

Here are details of the injuries plaintiff sustained in this incident:

  • left femur head and neck fractures requiring total hip replacement surgery two days after the accident and a nine day hosiutal admission
  • infection complication requiring removal of hardware and revision surgery in July 2006
  • multiple hip dislocations
  • two additional surgeries for hip dislocation complications with new hip replacements
  • exacerbation of pre-existing osteoporosis
  • exacerbation of anxiety and depression that pre-existed since 2003
  • bedridden after fourth surgery requiring permanent residence in nursing home

Inside Information:

  • Plaintiff’s expert stated that due to Ms. Guss’s extensive pre-existing exacerbated medical problems “she could probably live at least another five years” but “probably not ten.”
  • Plaintiff was too  sick to testify at trial;  at the time, she was in and out of hospice care for a year. Instead, the jury was shown her videotaped deposition from two months earlier and was read other pre-trial testimony from plaintiff as well.
  • Ms. Guss still resides in a nursing home.

On November 20, 1997, John Konvalin was a passenger on a Queens-bound subway train that collided into a train in front of it. The crash caused him to be thrown to the floor and fellow passengers to fall on top of him. Mr. Konvalin and the others were evacuated through the tunnel.

Subway Crash

The New York Times reported that 87 people were injured, among them Mr. Konvalin who, in pain, limped through the tunnel and was taken to the hospital where he was treated for a bruised left knee.

Normal Knee Anatomy
Normal Knee Anatomy

In his ensuing lawsuit against the transit authority, liability was conceded but plaintiff, a 58 year old salesman, ended up with serious hip and knee injuries and underwent extensive treatment that, in part, delayed the trial until 2012. The jury awarded pain and suffering damages in the sum of $450,000 (all for the 12 year period from the date of the accident to the date of the verdict, nothing for future damages).

In Konvalin v. New York City Transit Authority (Appellate Term, 2nd Department 2015), the award has been affirmed.

The court’s decision gives no information as to the injuries except to state that plaintiff underwent “several surgeries.” Here, then, are the injury details:

  • Left hip pain caused by repetitive stress from a gait that was altered because of knee pain resulting in joint deterioration and arthritic pain requiring total hip replacement surgery in January 2005
  • Left knee patella contusion resulting in chondromalacia, complex tears of the lateral meniscus and post-traumatic arthritis requiring two surgeries (arthroscopic meniscal repair in August 2005 and total knee replacement in 2009)
  • Extensive physical therapy regimens before and after all surgeries

replaced_hip_w

Plaintiff conceded that he made an excellent recovery from his injuries and did not challenge the jury’s failure to award any damages for future pain and suffering.

The defendant argued that the pain and suffering award was excessive based upon the facts that plaintiff had pre-existing arthritis in his hip, there was no record of any complaint about hip pain for at least two years after the accident and that the subway crash merely sped up by no more than four years his need for the surgery he underwent in 2005.

As to the knee, the defense argued that a 1998 MRI did not show a meniscal tear and a patella contusion would not “spread” arthritic changes to the remainder of the knee joint  and that therefore both knee surgeries were unrelated to the accident.

Inside Information:

  • Plaintiff also had pre-existing arthritis in his right hip, unrelated to the accident, that required total hip replacement surgery in 2008.
  • Plaintiff’s treating surgeons did not testify at trial; instead, he produced an expert who first examined plaintiff in 2009 (more than 10 years after the accident).

On January 24, 2009, Garo Kahvejian, a 48 year old jewelry store owner, sustained an injury to his hip when he was driving through the intersection at South Airmont Road and Campbell Avenue in Airmont (Rockland County) and his car was struck by a driver making a left turn.

The Scene of the Accident:

After two days of trial in the ensuing lawsuit, the judge directed a verdict as to liability ruling that the defendant was fully at fault. The Rockland County jury then heard testimony as to plaintiff’s injuries and on October 14, 2011 awarded pain and suffering damages in the sum of $800,000 ($50,000 past – 2 3/4 years, $750,000 future – 20 years).

anatomy-hip
Anatomy of the Hip and Pelvis

The trial judge ordered a reduction of the future damages award to $375,000 and then the defendant appealed claiming that plaintiff’s claims should have been dismissed entirely because his injuries did not meet the serious injury threshold under Insurance Law Section 5102:

“Serious injury” means a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.

Alternatively, defendant argued that the reduced total of $425,000 was excessive.

In Kahvejian v. Pardo (2d Dept. 2015), the defendant’s arguments as to the threshold were deemed without merit and the $425,000 pain and suffering award was affirmed.

As set forth in the court’s decision, Mr. Kahjevian’s first medical treatment following his accident was two weeks later when, after persistent hip pain, he made an appointment with an orthopedic surgeon. He was ultimately diagnosed with an early stage of avascular necrosis when MRI film three months later showed a loss of blood supply to the hip.

hip_avn_intro01

According to his doctor, plaintiff’s condition results in portions of dead bone in the hip for which there are two types of surgery – one involves drilling a hole in the bone and irrigating it with blood (which the doctor testified is only 40% successful), the other is a total hip replacement (which the doctor recommended but plaintiff hadn’t yet undergone).

 

 

 

 

 

Here are the injury details:

  • used either a cane or crutches for seven weeks; at trial he walked with a limp
  • persistent and permanent hip pain
  • significant loss of range of motion
  • unable to return at all to activities he’d enjoyed daily for 30 years such as martial arts, cycling and running
  • unable to play with his teenage children
  • unable stand for more than 45 minutes or sit for long periods
  • forced to sleep on first floor couch four nights a week due to inability to climb stairs to second floor bedroom
  • post-traumatic hip arthritis

Inside Information:

  • Plaintiff testified that despite being in severe pain at the scene of the crash, he declined medical treatment because he was driving home from his jewelry store and had in his possession valuable diamonds and was concerned for their security.
  • There was no loss of earnings claim.
  • Plaintiff treated with his orthopedic surgeon only five times (four in 2009 and once in May 2011 shortly before trial).
  • Plaintiff’s pre-trial settlement demand was $100,000 with no offer from the defendant.

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.

 

 

 

 

 

 

Joan Sutton, a 68 year old retiree, suffered from chronic left hip pain, was diagnosed with degenerative arthritis and underwent total hip replacement surgery on June 12, 2003 with orthopedic surgeon Elias Kassapides, M.D. at St. Luke’s – Roosevelt Hospital in New York City. The doctor removed and exchanged the femoral head (the ball) and the acetabulum (the cup) which together comprise the hip joint and replaced them with artificial components.

Here is what a degenerative hip joint looks like:

Unfortunately, Ms. Sutton’s hip pain continued after surgery and she eventually treated with new surgeons, one of whom, on August 18, 2004, performed revision surgery on her left hip. He took out the prosthetic devices and put in new ones.

And here is what the hip replacement components look like after the surgery:

Contending that surgical mal-positioning of the hardware implants caused the need for new surgery, Sutton sued Dr. Kassapides but on May 2, 2008, a jury in Queens County rendered a defense verdict finding that there was no malpractice.

Now, though, in Sutton v. Kassapides, an appellate court has upheld plaintiff’s appeal and reversed that finding, set it aside and ordered that a new trial be held. The appellate court ruled that plaintiff was deprived of a fair trial as a result of the cumulative effect of the improper conduct of the trial judge, both during his cross-examination of witnesses and in his charge to the jury.

No details about the judge’s inappropriateness were set forth in the appellate court’s decision so we’ve dug up the information and here it is. The judge, Duane A. Hart, was charged by plaintiff’s counsel with stepping beyond his role as a disinterested umpire, evincing a clear bias in favor of the defendant and excessively intervening into the trial proceedings by:

  • Pre-judging the case before trial began and concluding that plaintiff’s claims required dismissal
  • Taking over the cross-examination of witnesses by his tone and the nature of his questions demonstrating partiality to the defense
  • Falling asleep while on the bench during court proceedings

For examples of some of the judge’s improprieties during the trial, here is the plaintiff’s brief on appeal which includes portions of the trial transcript, at pages 11-18, demonstrating several instances of the judge’s unusual and improper actions in this case.

On retrial, the issue to be determined will be whether the defendant’s positioning of the hardware components "deviated from medically accepted practices." That’s precisely the phrase judges routinely use in their instructions to jurors at the end of medical malpractice cases in New York and it’s set out in full at Pattern Jury Instructions 2:150.

Plaintiff claimed that Dr. Kassapides was negligent (and caused the need for revision surgery) because he left about 25% of the hip socket uncovered due to his placement of the acetabular cup at corresponding angle of 30 degrees instead of 45 degrees. Defendant’s expert testified, though, that the cup was properly placed and that, as plaintiff’s expert conceded, an acetabular cup may be safely placed between 30 and 50 degrees.

As to damages (not reached at trial due to the defense verdict on liability), plaintiff will have to convince the new jury that she would not have been required to undergo left hip revision surgery but for the defendant’s negligence. The defendant will point out that plaintiff had, before her initial left hip surgery, undergone an unrelated right hip replacement that needed to be revised because the cup was placed too vertically. That may well undercut her claim that it was only the defendant’s negligence (assuming she can prove negligence) that caused the need for her left hip revision surgery.

In any event, whatever a new jury might award, it’s unlikely damages would be sustained above $500,000 in view of last month’s appeals court decision in Dublis v. Bosco (2010). There, a 74 year old woman underwent surgical revision of an artificial hip in which the femoral head and the acetabular cup were replaced. Unfortunately, plaintiff was left with a foot drop caused by intra-operative nerve damage. While her attorneys requested $800,000 for plaintiff’s pain and suffering, the jury awarded pain and suffering damages in the sum of $500,000 ($200,000 past, $300,000 future) and that amount was, over defendant’s objections, upheld as reasonable. While not perfectly analogous to the facts in Sutton v. Kassapides, it’s likely that this decision, as a practical matter, has set the ceiling for damages in Ms. Sutton’s retrial.

Inside Information:

  • Plaintiff’s attorneys made the unusual request, granted on appeal, that the retrial should be held before a different judge. That request has been made and granted several times regarding this particular trial judge, for example, in Williams v. Naylor (2009), Pickering v. Lehrer (2006) and Allstate Insurance Co. v. Albino (2005).
  • Judge Hart has been censured by the state Commission on Judicial Conduct for his improper conduct in other cases and matters.
  • It is often very difficult for plaintiffs in medical malpractice cases to find top notch local experts to testify for then (and against their colleagues) so resort is made to out of state experts. Here, though, plaintiff’s expert, Ronald Krasnick, M.D., a Burlington, New Jersey orthopedist, appears to have been overmatched by defendant’s expert, William Macaulay, M.D., a world-renowned orthopedic surgeon. Jurors are often greatly influenced by such matters, especially considering that these types of cases are often battles of experts and are decided in large part based on which competing expert’s opinion is more credible.
  • One of the mistakes by Judge Hart was his charge to the jury that if they concluded that defendant merely made an error in judgment (i.e., he chose among several accepted methods of treatment) as opposed to a deviation from accepted medical practices in how he perfumed the surgery, then they could find for the defense. The plaintiff argued successfully on appeal that this charge should not have been given because her claim was not whether the initial left hip surgery should have been performed or not; rather, she claimed that it was how the doctor performed the surgery (the ball and cup placement mal-positioning) that constituted negligence. In charging the error in judgment rule, Judge Hart ignored clear and binding precedent from New York’s highest court in the case of Nestorowich v. Ricotta (2002).