Reflex Sympathy Dystrophy

On May 8, 2013, at about 7:30 p.m., Aminatah Kromah, a 32 year old hairdresser, was descending the interior stairs of a 50 unit apartment building at 2265 Davidson Avenue in the Bronx when she slipped and fell down five steps and sustained massive ankle and lower extremity injuries.

In her ensuing lawsuit against the building owner and management company, Ms. Kromah claimed that the staircase was defective and dangerous because of a crack in one of the steps and inadequate lighting.

The jury agreed that the defendants were fully liable for the accident and awarded plaintiff pain and suffering damages in the sum of $9,000,000 ($4,500,000 past – four years, $4,500,000 future – 45 years).

Defendants made a post-trial motion arguing that the awards were excessive. The trial judge agreed with the defense that the $4,500,000 past pain and suffering award was excessive and he ordered it reduced to $1,600,000. The judge refused, though, to disturb the $4,500,000 future pain and suffering award finding that it was reasonable.

The reduced total pain and suffering award of $6,100,000 and the liability finding were affirmed on appeal in Kromah v. 22655 Davidson Realty LLC (1st Dept. 2019).

Here are the injury details:

  • ambulance transport to the local hospital with a one week admission
  • diagnosed with an open trimalleolar ankle fracture dislocation with an obliterated fibula, completely torn and destroyed deltoid ligaments and substantial nerve damage

  • surgery #1 (the day after the accident) – open reduction internal fixation with plate and screws
  • surgery #2 (one year later) – arthroscopic synovectomy of talonavicular joint, removal of loose cartilage, lysis of adhesions of the ankle joint
  • extensive physical therapy, many steroid injections and continuing narcotic pain medication
  • post-traumatic arthritis and reflex sympathetic dystrophy (“RSD”) with extreme and constant abnormal sensitivity, burning neuropathic pain and swelling
  • unable to walk without cane
  • permanent total disability from prior profession as hairdresser due to difficulty standing for prolonged periods, walking greater than 2-3 blocks and walking up or down stairs
  • poor prognosis with expected accelerated degeneration of injuries, decrease of extremely limited range of motion and worsening of arthritis

The jury also awarded and the appellate court affirmed damages for past and future loss of earnings in the sum of $951,000.

The jury’s award for future medical expenses in the sum of $2,547,000 (the largest component of which was $1,625,000 for medications over 45 years) was reduced by $294,00 which was the sum awarded for radio frequency injections. The court noted that plaintiff had not had such treatment and there was no evidence it would provide relief and become necessary. Other items that were allowed included $141,000 for pain management visits and $305,000 for spinal cord stimulator implantation).

Plaintiff had three treating medical experts testify for her – an orthopedic surgeon, a pain management physician and a physical therapist. The doctors both concluded that plaintiff was suffering from significant RSD. The defense medical experts were an orthopedic surgeon and an internist-rheumatologist. The surgeon conceded that plaintiff had sustained a very serious ankle injury and was suffering from post-traumatic arthritis that may well lead to the need for ankle fusion surgery. He offered no opinion as to RSD. The internist-rheumatologist, though, testified at length on the question of whether plaintiff had RSD. Initially, he opined that plaintiff was not suffering from RSD but on cross-examination, when presented with medical records he hadn’t seen before, he admitted that plaintiff’s symptoms were “consistent” with a diagnosis of RSD (though he would still not agree that plaintiff suffered from RSD).

Inside Information:

On October 10, 2004, Donald Schultz twisted his ankle walking up the stairs at work (he was a 36 year old police dispatcher for the City of Tonawanda) and sustained a simple, non-displaced ankle fracture.  He was treated at the local hospital with a brace and instructed to follow up with an orthopedic surgeon.

Mr. Schultz treated with an orthopedic surgeon the next day and, due to unremitting and severe pain on the outside portion of his foot in the area of his fifth metatarsal (the “little toe”), he continued to treat with that surgeon for the next 13 months.

foot2

As the pain increased and continued, the doctor noted a concern for RSD (complex regional pain syndrome) and he performed two surgeries on Mr. Schultz’s ankle – first on May 13, 2005  to alleviate the non-union of the fracture and then on September 9, 2005 to tighten the ankle ligaments.

Mr. Schultz’s pain was intractable and unrelenting so on November 10, 2005, he sought out and came under the care of a new orthopedic surgeon. That doctor diagnosed avascular necrosis and on November 30, 2009 performed surgery on Mr. Schultz’s fifth metatarsal and two months later he amputated the head of that toe. The pain progressed, though, and the remaining stump of the toe was then amputated.

Many more surgeries were performed by the new surgeon – 12 in all –  including a below the knee amputation until finally, on October 6, 2009, Mr. Schultz underwent an above-the-knee amputation (performed by a third surgeon).

AboveKneeAmp-LG

Mr. Schultz sued his first two orthopedic surgeons claiming  that (a)  the first surgeon should not have performed the two surgeries on Mr. Schultz’s ankle in the face of a suspected diagnosis of RSD because doing so aggravated the RSD and (b) the second surgeon performed various surgeries that were contraindicated and either without a diagnosis or with an incorrect diagnosis.

On February 4, 2014, the Erie County jury found that only the second surgeon was negligent and they awarded pain and suffering damages in the sum of $6,000,000 ($2,000,000 past – eight years, $4,000,000 future – 20 years).

In Schultz v. Excelsior Orthopedics, LLP (4th Dept. 2015), both the liability and damages verdicts were affirmed.

Plaintiff’s orthopedic surgery expert (an instructor at the Yale School of Medicine for 30 years) opined that the second surgeon’s deviations from appropriate standards of care included the following:

  • the first surgery, on 11/30/09, was done without a definitive diagnosis to warrant it in a patient with a known pain syndrome
  • the second, third and fourth surgeries, on 1/25/06 (to remove the head of plaintiff’s fifth metatarsal), on 6/23/06 (amputation of the fifth metatarsal) and on 2/16/07 (amputation of the remainder of plaintiff’s fifth metatarsal), were not based upon a defined diagnosis and were not needed
  • surgeries on 3/21/07 and 3/17/08 (closing a wound and excising a neuroma) caused unwarranted infections
  • surgery on 10/1/08 (amputating plaintiff’s fourth toe) was based upon an erroneous diagnosis of bone infection or osteomyelitis
  • surgery to amputate plaintiff’s leg below the knee was done on a viable limb, without a bone biopsy and based upon an erroneous diagnosis of osteomyelitis

In addition to all of the foregoing, plaintiff’s injuries included:

  • five more surgeries or procedures after his above the knee amputation to assist with the fitting of his prosthetic leg and to deal with infection issues
  • extensive depression and anxiety requiring psychological treatment and medication and resulting in a suicide attempt
  • total disability from employment as of November 2009
  • stress leading to divorce from his wife one year before trial

In addition to damages for pain and suffering, plaintiff was also awarded and the appellate court affirmed damages for plaintiff’s loss of past and future earnings and benefits in the sum of $1,205,989 and approximately $1,100,000 for other future economic damages over 20 years (including $655,500 for prosthetic devices, $157,866 for medical supplies and $135,744 for medications).

Inside Information:

  • Plaintiff’s ex-wife was awarded $350,000 for her loss of services claim for the seven year period from the date of defendant’s negligence to the date the parties no longer resided in the same household. She testified that she became his primary caregiver with their young son and took over all household duties. Mr. Schultz’s treating psychologist testified that his medical problems contributed substantially to the divorce after 23 years of marriage.
  • In his closing argument, plaintiff’s attorney asked the jury to award pain and suffering damages in the precise sum – $6,000,000 – that they decided upon. He made no suggestion as to the loss of services claim.

On July 21, 2000, Daniel Hernandez was working on a defective lighting fixture at a Great Neck construction site when he fell from a ladder and broke his leg. He never recovered from his injury (it got worse and others developed too); he was never able to return to work. His damages lawsuit took eight years  to get to trial. And then it took another four years to conclude post-trial motions (we wrote about this case three years ago,  here) and appeals.

Now, in Hernandez v. Ten Ten Co. (1st Dept. 2013), an appeals court has upheld the jury’s verdict awarding pain and suffering damages in the sum of $3,166,667 ($1,000,000 past – eight years, $2,166,667 future – 25.8 years).

The appellate court decision lists the injuries sustained by Mr. Hernandez that persuaded the judges to uphold the substantial pain and suffering award. Here are the injury details:

  • tibia and fibula fractures  – severe comminuted mid-shaft, open surgery with rod inserted from knee to ankle, fibula non-union requires future surgery and bone grafting, peroneal nerve injury, chronic and persistent pain, antalgic gait, needs crutches to ambulate
  • back injuries – radiculopathy at L4-5 and S-1 confirmed by EMG, severe  persistent low back pain
  • reflex sympathy dystrophy (RSD) – progressively worsening chronic pain syndrome affecting both lower extremities, burning pain in legs and feet, discolored and dry, flaky skin
  • depression – previously active and employed, now house-bound, reclusive and often crying, stupefied and drowsy from medications, unable to think straight or be attentive
  • sleep disorder – cannot sleep without Ambien
  • sexual dysfunction – no physical relations with wife

Plaintiff’s counsel in Hernandez argued on appeal that Serrano v. 432 Park S. Realty Co., LLC (1st Dept. 2009), a case we discussed here, is the closest comparable case that is instructive and persuasive insofar as relative injuries and awards are concerned. The judges in Hernandez agreed, citing only the Serrano case as justification for upholding the awards to Mr. Hernandez.

In Serrano, a 32 year old construction worker fell from a ladder and sustained severe wrist fractures requiring two significant surgeries leaving him with a functionally useless hand, a herniated disc also requiring surgery, RSD and depression. In that case, the jury awarded plaintiff pain and suffering damages in the sum of $4,840,000 ($600,000 past – six years.  $4,240,000 future – 38 years). The appellate court reduced the future damages to $2,500,000, resulting in a total affirmed award of $3,100,000.

Inside Information:

  • The jury’s loss of services award to plaintiff’s wife in the sum of $341,666 was affirmed on appeal. Interestingly, this award was for past loss of services only; there was no award at all for future loss of services. The award is very high relative to other cases considering it represents a period of only eight years; however, when considering the jury’s finding that Mr. Hernandez’s pain and suffering will continue for 25.8 years, the loss of services award appears reasonable (and it was not specifically challenged on appeal). Apparently, the jurors were confused.
  • Plaintiff was held to be 46.67% at fault for the accident – (with the remaining 53.33% charged to the defendant). Accordingly, Mr. Hernandez will receive a prorated reduced portion of the affirmed judgment.

 

 

In the morning of October 27, 2005, Mary Colon, then 49 years old, escorted her elderly neighbor to an eye doctor’s appointment at 1101 Pelham Parkway North in the Bronx. After they arrived, Mrs. Colon went outside to buy a newspaper but when she was walking on the sidewalk outside the doctor’s office, she fell and sustained an ankle fracture.

Here is the doctor’s office building outside of which Mrs. Colon fell:

In the ensuing lawsuit – Colon v. New York Eye Surgery Associates, P.C. (Supreme Court, Bronx County; Index # 8832/06) – Mrs. Colon claimed that there was a height differential between the sidewalk and the adjacent grassy verge that constituted a dangerous condition and caused her to fall when she moved to make room for people coming towards her.

While the facilities manager for the property owner (the medical practice) stated he would have back-filled the inch or two depressed area to make it level had he seen it before the accident, he denied ever seeing it before during his twice a day rounds around the property. And, anyway, he argued, the "defect" was so trivial and so obvious that the accident was no one’s fault except plaintiff’s.

On January 14, 2009, a Bronx County jury found the defendant liable for the accident and awarded damages for Mrs. Colon’s pain and suffering in the sum of $2,225,000 ($750,00 past – 3 years, $1,500,000 future – 29 years).

The defendant made a post-trial motion seeking to set aside the liability finding on the ground that the verdict was contrary to the weight of the evidence and, in the alternative, to reduce the damages award on the basis that it was excessive.

The judge declined to set aside the liability finding but ruled that no more than $950,000 ($300,000 past, $650,000 future) was sustainable for pain and suffering damages.

This week, both the liability finding against the defendant and the reduction in damages to $950,000 were upheld on appeal in Colon v. New York Eye Surgery Associates, P.C. (1st Dept. 2010).

Mrs. Colon’s injuries appeared at first to be limited:

  • she did not seek medical attention until two days later at a local emergency room
  • her initial diagnosis was an avulsion fracture of her distal right fibula
  • the E.R. doctor applied a soft cast and a week later a hard cast was applied

Here is a drawing of an avulsion fracture (of the tibia) with a bending fracture of the fibula:

Mrs. Colon did not require any surgery for her fracture; however within two weeks of the accident, a doctor noted that she had some components of Reflex Sympathetic Dystrophy (RSD) – a painful, permanent and debilitating neurological condition that affects the skin, muscles, bones and joints. Other doctors later came to the same conclusion.

The orthopedic surgeons who testified at trial for each side disagreed over whether plaintiff had RSD at all:

Plaintiff testified at trial that her symptoms included:

  • burning, itch, achy sensations at the trauma site traveling to other areas of the body
  • hypersensitivity to touch causing severe, protracted pain and discomfort
  • painful sensations in bed similar to those of water running down her leg
  • hyperpigmentation or color changes in the skin

She also claimed she had a permanent limp and required periodic use of a cane. She’d been an active runner before the accident.

While RSD injuries and symptoms vary quite widely from one person to the next (and they manifest in different parts of each person’s body), the appellate court did not discuss any of the cases which have dealt with pain and suffering damages for injuries leading to RSD, most of which we have discussed, here, here and here, such as:

The RSD sustained by Mrs. Colon was clearly the overwhelming injury, as opposed to the fracture of her ankle and that’s what led the appellate court to approve $950,000 for her pain and suffering.

Ankle fracture cases rarely involve or lead to RSD and sustainable pain and suffering awards for cases with significant ankle fractures with one or two surgeries but without RSD generally will fall in the $300,000 to $600,000 range, as we discussed here and here.

Naturally, there are outliers and very severe ankle fracture cases can result in sustainable pain and suffering verdicts of $1,000,000 or more, for example, in:

Inside Information:

  • The defense sought to preclude Dr. Graziosa from testifying that plaintff had  RSD because his report exchanged prior to trial merely stated that she had "some components" of RSD. The doctor was permitted to testify, though, because there were other doctors who thought she had RSD too and their records were in evidence and relied upon by Dr. Graziosa.
  • Before the verdict, plaintiff had offered to settle for $500,000; however, the defendant offered only $40,000

 

 It’s not an uncommon situation in the ever-uncertain world of jury deliberations in personal injury and medical malpractice cases in New York and nationwide. After years of litigation, months of trial preparation and weeks of trial testimony, the jury is deliberating and each side again assesses its strengths and weaknesses. A settlement is finally discussed and appears to have been reached. The end? Usually, but not in one medical malpractice case that started in 1996 with surgery in Brooklyn and ended this week with an amazing appellate court decision.

On June 5, 1996, a 32 year old college math professor underwent a lengthy surgery to repair chronic instability in his left knee. Immediately following surgery, he felt severe pain in his right leg which was swollen and deformed. Turns out, he had deep venous thrombosis (DVT) in three veins in his right calf and was ultimately diagnosed with tibial and peroneal nerve damage and RSD resulting in permanent intense, burning pain in his right leg requiring lifelong narcotic pain medication.

The left leg (the one operated on) healed well; however, as to his right leg (the one not operated on and with respect to which he never before had any problems) Mahmoud Diarassouba sued his orthopedic surgeon and his two anesthesiologists claiming that their failure to reposition his right leg during the lengthy surgery was a departure from good and accepted medical practice that caused his right leg injuries.

These are the types of support stirrups used in knee surgeries:

Prof. Diarassouba won his case in 2003 when the jury found the doctors liable for $1,500,000 in pain and suffering damages ($500,000 past – 7 years, $1,000,000 future – 37 years). Here is a copy of the verdict sheet with the jury’s findings.

The defendants appealed the verdict against them on several grounds but mainly because certain evidence was improperly heard by the jury and other evidence was improperly held from them. The appellate court agreed, issuing a decision in Diarassouba v. Urban (2d Dept. 2005) setting aside the verdict and directing a new trial.

The new trial was held in 2007. When the jury was deliberating a verdict, the parties appeared to have reached a settlement. Plaintiff’s attorney told the defendants’ attorney that plaintiff would accept defendants’ $150,000 offer and plaintiff’s attorney then told the court clerk who found and told the judge. At that time, though, the judge just received a note from the jury advising that they had reached a verdict!

Plaintiff’s attorney asked the judge to memorialize the settlement by putting it on the record – i.e., by stating the details in open court, having them transcribed by the court reporter and having defense counsel and the plaintiff himself state that they are in accord with and agree to the terms. The judge refused and told the plaintiff’s attorney that he would first bring in the jury and have its verdict read after which, the judge said, the parties would be free to do what they agreed to.

The jury was "out" – still in the jury room – when plaintiff’s attorney advised the judge of a settlement:

The jury came in. The verdict was announced: the doctors were again found liable for pain and suffering damages, this time in the sum of $1,450,000 ($800,000 past – 11 ½ years, $650,000 future – 30 years).

This was a stunning development. Clearly, plaintiff had anticipated a defense verdict and had been eager to settle for a mere $150,000. Just as clearly, the jury found the defendants at fault and they assessed damages at 10 times the purported settlement figure. So: had the case already been settled for $150,000 or would the $1,450,000 verdict stand? Those were the questions in the second appeal in this case, a decision on which was issued this week in Diarassouba v. Urban (2d Dept. 2009) holding that there was no legally enforceable settlement and the verdict stands.

At first glance, it looks like plaintiff was seeking to wiggle out of a binding agreement that he wished he hadn’t made since the verdict was so much more favorable. On close examination, though, the court’s decision makes sense and is fair. Before the verdict was announced, defense counsel had not acknowledged that a settlement had been reached. My reading is that the defendants were trying to have it both ways – hoping the verdict would exonerate them but if it didn’t and the verdict was more than $150,000 then defense counsel could claim (as he ultimately did) that a settlement had been reached for only $150,000.

Settlements during trial are common but to make them binding in the absence of a signed written agreement the law (CPLR 2104requires the attorneys to place the settlement agreement on the record – typically meaning that they announce the details of the settlement in open court, before the judge, with the court reporter transcribing the statements and the settling parties themselves stating that they understand the terms of the settlement and agree to them. None of that was done in this case, in part because the judge wanted the verdict announced first and in part because defense counsel did not state that he or his clients acknowledged and agreed to the $150,000 proposal (that is, until after the verdict was read).

Inside Information:

  • In the first trial, liability was apportioned 60% to the orthopedic surgeon and 20% each to the anesthesiologists but in the second trial the surgeon’s share was 30% and the shares of the other two were 35% each.
  • Before the second trial, the surgeon settled with the plaintiff for $390,000.
  • Since the surgeon was 30% at fault in the second trial, plaintiff’s total verdict of $1,450,000 was reduced by 30% as against the other two defendants and the plaintiff is entitled to only $1,015,000 from them. Since plaintiff already has $390,000 from the surgeon, his total recovery here is $1,405,000.

UPDATE: On May 8, 2012, following a third appeal by defendants, the court issued an order affirming the liability verdict and holding that the award of $1,450,000 for pain and suffering damages is not excessive,