Proximal Humerus Fracture

On October 16, 2013, Mary Ann Greblewski tripped and fell over a concrete wheel stop in Highland Hospital’s parking garage in Rochester. Ms. Greblewski, then 80 years old, sustained shoulder injuries and sued the hospital claiming that the premises was dangerous because there was inadequate lighting in the garage and the wheel stop was improperly positioned, as it extended into the pedestrian walkway.

The Accident Location

The hospital sought pre-trial dismissal of the case arguing that the wheel stop was in its proper position, the garage was adequately illuminated and, in any event, the wheel stop was open and obvious. The motion was denied and the case proceeded to trial at which the Chemung County jurors found the hospital fully at fault for the accident and they awarded plaintiff pain and suffering damages in the sum of $550,000 ($250,000 past – three years, $300,000 future – 10 years).

The trial judge determined that the award was excessive and ordered a reduction to $225,000. In Greblewski v. Strong Health MCO, LLC (3d Dept. 2018), the liability verdict was affirmed and the jury’s $550,000 award was reinstated.

After she fell, plaintiff was taken by stretcher to the emergency room where x-rays of her left shoulder disclosed that she’d sustained a four-part fracture of her proximal humerus.

Initially treated with a sling for six weeks and assisted by home health aides, Ms. Greblewski then underwent a 12 week course of physical therapy. At the time of trial, she was still in some pain but had significant deficits and disabilities including:

  • permanent range of motion losses in shoulder (e.g., can only lift arm to 110 degrees out of a possible 180 degrees)
  • limited strength in her left hand
  • difficulty curling her hair, bathing and getting dressed
  • unable to provide same level of care to her disabled adult daughter as she used to for almost 60 years

A significant element of of the damages testimony presented at trial was plaintiff’s loss of enjoyment of life and emotional pain and suffering caused by her inability to care for her daughter Cathy who has had cerebral palsy since birth, is confined to a wheelchair and requires assistance with all activities of daily living. Plaintiff had been Cathy’s primary caregiver –  “her greatest joy and greatest duty.”

The defense argued that the trial judge’s reduction of the damages award did not go far enough because plaintiff did not require shoulder surgery (she was not a good candidate due to her age). In response, plaintiff  argued that the fact that she was not a surgical candidate does not diminish the value of her case; rather, it enhances it because plaintiff did not have the option of surgical intervention to help her regain mobility in her shoulder joint.

Inside Information:

  • The day before her accident, Ms. Greblewski, along with her husband and two adult daughters, had driven from Elmira to a Rochester hotel as she was scheduled to undergo early the next morning an outpatient vulvectomy for vulva cancer at the defendant’s hospital. After she was treated for her shoulder in the ER, Ms. Greblewski opted to undergo the vulvectomy. She was cleared for surgery, underwent the procedure successfully and was discharged the next day with instructions to follow up with a local orthopedic surgeon.
  • The trial judge instructed the jury that plaintiff’s life expectancy, according to federal government statistics, was 7.1 years; however, he also told the jurors that the figure was not binding upon them and they may consider it together with their own experience and the evidence they heard regarding the condition of plaintiff’s health, habits and activities. In doing so, the jury set plaintiff’s future pain and suffering period at 10 years.
  • In summations, defense counsel contended that the hospital was not negligent but that if the jury should disagree then $30,000 for plaintiff’s pain and suffering would be fair; plaintiff’s counsel suggested $500,000.

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).