On February 6, 2011, Dorothy Jones tripped and fell in the vestibule of the Harkness Pavilion at New York-Presbyterian Hospital in Manhattan. As a result, Ms. Jones, then 84 years old, was in extreme pain, could not move her right (dominant) arm and had to be lifted up off the floor by ambulance attendant who then took her to the emergency room. Due to the fall, she sustained fractures of her proximal humerus.

 

In her ensuing lawsuit against the hospital and a related entity, Ms. Jones testified that she fell because of both a dirty surgical or food service cap on the floor and a hole covered by a rubber rain mat that bent when people walked over it. The mat had been placed by hospital maintenance personnel a month earlier after a flood damaged the floor and some ceramic tiles were removed. The jury found that (a) the hospital was negligent, (b) the cap, the missing tiles and the mat were concurrent causes of plaintiff’s injuries and (c) Ms. Jones was not at all comparatively negligent.

In their verdict, the jurors awarded plaintiff pain and suffering damages in the sum of $1,000,000 ($600,000 past – five years, $400,000 future – five years).

Defendants applied to the trial judge for a judgment notwithstanding the verdict, arguing that (a) there was insufficient evidence as a matter of law to prove that they had either actual or constructive notice of any dangerous or recurrent condition (i.e., the cap on the floor) and (b)  any height differential in the floor surface was insignificant and trivial. The judge agreed and he vacated the judgment and dismissed the complaint.

Plaintiff, though, prevailed on appeal; the verdict was reinstated and, because the trial judge had neglected to rule on defendants’ alternative request (to reduce the jury’s damage award of $1,000,000), the case was sent back to the trial judge to rule on the propriety of the amount of damages. He then decided that the award should be reduced from $1,000,000 to $300,000 ($150,000 past, $150,000 future).

Plaintiff again appealed, this time arguing that the trial judge should not have reduced the damage award and that it should be reinstated. In Jones v. New York-Presbyterian Hospital  (1st Dept. 2018), the appellate court declined to reinstate the damage award, instead determining that $550,000 ($400,000 past, $150,000 future) is the appropriate pain and suffering award in this case.

Here are the injury details:

  • Emergency room treatment for 12 hours on day of accident; diagnosed with three-part comminuted proximal humerus fracture of greater tuberosity and humeral neck; discharged with sling
  • Follow-up treatment with orthopedic surgeon the next day (and for nine months thereafter) – treated conservatively with three injections and physical therapy for a few months
  • Malunion of the bone fractures with impingement syndrome (because of an elevated tuberosity)
  • Continuing pain, significant loss of range of motion, stiffness and difficulty sleeping
  • Unable to raise arm above head; unable to perform household tasks such as cooking and cleaning

Plaintiff produced an orthopedic surgeon expert, Gabriel Dassa, M.D., who testified that due to her  fall, plaintiff  has a 70% loss of function of her right shoulder, progressive post-traumatic arthritis caused by the malunion and the only reasonable option left for her is a total shoulder replacement which, he said, is done for pain relief and does not restore function.

Defendants produced their own expert, Andrew Rokito, M.D., the Chief of the Division of Shoulder and Elbow Surgery at NYU Langone Medical Center. Dr. Rokito opined that (a) plaintiff has a functional range of motion in her shoulder that is commensurate with the ability to perform activities of daily living independently, (b) she has no arthritis in her shoulder joint and (c) she has significantly improved with no need for any further medical treatment for her shoulder.

Plaintiff testified that before the accident she was self-sufficient and self-reliant, would go food shopping and cook on her own, and was very social and happy. After the accident, she (and her daughter) testified, she became immobile, reliant on her daughter and depressed because of chronic shoulder pain.

The defense, though, suggested that plaintiff’s pre-existing medical conditions and advanced age contributed to her pain and suffering noting that plaintiff had (a) been taking a narcotic pain medication for years before this accident (since she fractured her tibial plateau in 2008), (b)  chronic obstructive pulmonary disease and was hospitalized in 2015 for pulmonary edema, (c) coronary artery disease with a heart attack in 2001 and three hospitalizations for cardiac conditions in the six months before trial , and (d) long-standing lumbar disc disease and pain. Further, they noted, Ms. Jones had not, as of the time of trial, received any treatment for her shoulder in the preceding four years.

Inside Information:

  • This was a very hard fought case, over seven years, involving some of New York’s most highly regarded attorneys: Burns & Harris (trial counsel for plaintiff), Brian J. Isaac of  Pollack, Pollack, Isaac & Decicco (appellate counsel for plaintiff) and Barbara D. Goldberg of Martin Clearwater & Bell (appellate counsel for defendants).

 

 

On May 25, 2003 at about 7 p.m., Miguel Bonano, then 19 years old, was driving a motorized dirt bike on Bryant Avenue near 167th Street in the Bronx when he crashed into the back of a parked car and sustained ankle fractures that required emergency surgery.

A Yamaha YZ85 dirt bike, similar to the one in this case

Miguel testified that as he was proceeding at about 15 miles per hour, he noticed a stopped car in the middle of the road and he veered right in an attempt to pass it. Then, suddenly, the right front-seat passenger door of the car opened and a hand reached out to grab him. Miguel “got nervous,” accelerated, mounted the sidewalk to “get away from the guy grabbing” him and then hit a parked car.

It turns out that the stopped car was an unmarked police vehicle with anti-crime officers inside. One of the officers testified that he opened his door only when he saw Bonano on the sidewalk a couple of car lengths behind the police car, intending to tell him to get off the sidewalk.

Bonano sued the city claiming that the officer who opened the door into his path was negligent and caused him to lose control of his dirt bike resulting in the crash and his injuries.

On June 6, 2012,  at the end of the trial, the judge instructed the jury as to the applicable law, including Vehicle and Traffic Law Section 1214 regarding opening and closing of car doors.

The jury substantially agreed with plaintiff’s version of the facts when it returned a verdict finding the city 85% at fault (and plaintiff 15% comparatively negligent).

As to damages, the jury awarded plaintiff $1,640,000 for his pain and suffering ($500,000 past – 10 years, $1,140,000 future – 20 years). The verdict has now been affirmed in Bonano v. City of New York (1st Dept. 2015).

As set forth in the appellate court’s decision, plaintiff sustained comminuted fractures of his fibula, tibia and talus that required three surgeries and will likely require a fourth. Here are the injury details:

  • After the crash, Bonano lost consciousness and woke up moments later lying in the street in intense pain, bleeding and with his right leg  bones and fat protruding out from his skin.
  • Transported by ambulance to the hospital where he was admitted for 12 days.
  • Surgery #1 on 5/26/03: irrigation and debridement and placement of an external fixation device inserting screws into the tibia and a pin into the calcaneous.
  • external fixator
  • Surgery # 2 on 6/3/03 – to remove the external fixator and fix the fractures via open reduction and internal fixation (“ORIF”)  with a four hole plate with screws in the tibia, a six hole plate with screws in the fibula, screw fixation of the talus and a bone graft.
  • Surgery # 3 on 7/15/04 – to remove some of the inserted hardware.
  • Post-traumatic arthritis in the joint space between the tibia and the talus, as well as the loosening of a screw in the talus resulting in a malunion, all of which caused significant permanent and progressive pain, limitation of motion and an antalgic gait (a limp).
  • Unable to walk without pain or limping for more than three blocks or play sports (either alone or with his young children).
  • Fourth Surgery required – a triple arthrodesis to fuse the arthritic ankle joints (the defendant’s expert orthopedic surgeon testified that plaintiff’s fourth surgery might have to be a “more significant” ankle replacement procedure in which a prosthetic device is placed into the ankle).

Triple-Arthrodesis-Resized

Inside Information:

  • By the time of trial, plaintiff was 27 years old had moved to Pennsylvania and was attending a small college studying criminal justice.
  • The testimony of the three police officers involved was inconsistent as to who was seated where, how many were actually inside the police car and where plaintiff was when he was first seen by the officers. Plaintiff’s counsel attacked their credibility, apparently successfully.
  • Plaintiff’s pre-trial settlement demand was $450,000 against an offer of $325,000.
  • Defense counsel told the jurors that if they reached the damages issue, plaintiff’s “story” about his injuries did not make sense in part because he hadn’t sought any treatment for his injuries in the prior eight years, his limping was “selective” and he has the ability to drive, go to movies with his kids and throw a ball around with them.
  • Defense counsel stated in her closing that plaintiff’s counsel “might ask you for [as much as] $50,000.” In fact, plaintiff’s counsel asked the jurors for pain and suffering damages in the sum of $4,000,000.