On August 15, 2013, Lillyan Rosenberg received her third and final acupuncture treatment for groin pain from Jing Jiang at Jing-River Accupuncture. In addition to acupuncture needles, Dr. Jiang used a heat lamp that caused third degree burns and permanent scarring,

In the ensuing lawsuit, the 87 year old plaintiff claimed that the heat lamp should not have been used, she was left unattended and the doctor failed to respond to her complaints regarding the lamp. The defendants conceded liability and in a damages only trial, on January 27, 2016, the Queens County jury awarded plaintiff pain and suffering damages in the sum of $175,000 ($150,000 past – 2 1/2 years, $25,000 future – five years). Her husband was awarded $25,000 (past only) for  his loss of consortium claim.

The defendants appealed claiming that they did not get a fair trial because (a) some questions plaintiff’s attorney asked were leading and (b) plaintiff’s expert dermatologist testified regarding medical history given to him by the plaintiff.

In Rosenberg v. Jiang  (2d Dept. 2017), both defense claims were rejected by the appellate court and the judgment was affirmed.

Defendants challenged the severity of plaintiff’s injuries only through cross-examination (about possible cosmetic procedures that might lessen the visibility of scars) but they did not offer any expert medical testimony. They suggested that Ms. Rosenberg’s wounds took longer to heal because she is a diabetic and they noted that her scars are not generally visible because they are on a part of plaintiff’s body that is covered by clothing. Defendants did not, though, challenge the amount of the damage awards either in a post-trial motion or on appeal.

Inside Information:

  • In closing arguments, plaintiff’s counsel asked the jury to award $800,000 whereas defendants’ counsel suggested an award “in the neighborhood of $50,000.”
  • Plaintiff’s appellate counsel, Arnold E. DiJoseph, III, argued that the appeal was frivolous in view of the conceded liability, “terrible” burns and permanent scarring and he argued that even if a new trial were ordered, defendants  “could not have done better than they did” already.

 

 

Tragedy struck Gualbert Alvarez twice in his young life.

On July 15, 2001, he  dove into shallow water and struck his head, causing spinal cord damages, which left him permanently paralyzed from the neck down.  He was 24 years old.

Gualbert was rushed to Jamaica Hospital where he was in a coma for three months after his diving accident and underwent numerous surgeries. After being medically stabilized, he was transferred to the Rusk Institute for rehabilitation, then to Pelham Bay Nursing Home and, in December 2001, he was transferred to Beth Abraham Nursing Home where he remained for 26 months until July 6, 2004.

In March 2004, tragedy struck a second time when Alvarez, who could not turn independently and needed assistance to get out of bed, developed  bed  sores   (also called pressure sores, pressure ulcers and decubitus ulcers). They started as Stage II in his feet and heels but then, over 11 days, he developed a Stage IV ulcer in his left buttock.

In January 2005, Alvarez sued the nursing home claiming that his bedsores were a result of the staff’s negligent skin care – in failing to regularly position his body.

On March 9, 2011, a Bronx jury agreed and found that the defendant was negligent  and that plaintiff was entitled to pain and suffering damages in the sum of $750,000 ($500,000 past – seven years, $250,000 future – 42 years).

In Alvarez v. Beth Abraham Health Services (1st Dept. 2012), the appellate court recently affirmed both the liability determination and the damages awards.

Here are the details of plaintiff’s injuries:

  • development of Stage IV ulcer on left buttock, about two inches in diameter and two inches deep, with necrosis and foul odors
  • 16 weeks of follow-up treatment including applications of wet to dry dressings – placing saline gauze into the would and then ripping it out after it sticks, so as to remove necrotic tissue
  • sharp surgical debridement involving excruciating pain (the wound cannot be anesthetized)
  • continuing pain at the ulcer site from area where the spine meets the legs
  • sore remained open  for 2-3 months before healing with large scar over an embarrassing hole in left buttock preventing plaintiff from sitting for a long time
  • likelihood that the ulcer will reopen in the future and residual increased susceptibility to development of further bed sores for the rest of plaintiff’s life

The appellate court decision does not refer to any prior cases dealing with the proper amount of damages in a case like this (there are in fact very few); however, there are two relevant prior cases that apparently influenced the judges:

  1. Parson v. Interfaith Medical Center (2d Dept. 1999) – $400,000 pain and suffering award (all past – six months, no future – death from unrelated causes) reduced from $1,000,000 for 92 year old nursing home resident with six pressure ulcers, including three very large Stage IV ulcers
  2. Kolbert v. Maplewood Healthcare Center, Inc. (4th Dept. 2005) – $500,000 pain and suffering award (all past – one year, no future – death from unrelated causes)  reduced from $1,500,000 for 78 year old nursing home resident with Stage IV pressure ulcers in her heels as well as a fractured elbow

Inside Information:

  • After the jury charge,  it took only an hour and a half  to render the verdict.
  • It appears that the jurors were disturbed by the fact that defendant’s records indicated that proper and necessary turning and positioning (i.e., once every two hours) only took place 65% of the time.
  • Part of the defense was that plaintiff was a noncompliant patient who stayed in his wheelchair too long, refused to wear prescribed booties for his feet and left the premises too often for outside social visits.
  • At the time of trial, plaintiff lived with his wife, who he married in 2007.

She moved to New York City from Jamaica as a 29 year old and within the year she felt a lump on her left breast. Over the next year and a half, Lydia Williams had mammograms, an excisional biopsy (that revealed cancer), a CT scan and chemotherapy before her doctor told her she needed a mastectomy (surgical removal of her breast) in order to tell if any cancerous cells remained.

On November 22, 2000, Ms. Williams had the surgery (a modified radical mastectomy with axillary dissection – the removal of 26 lymph nodes). Immediately following, she also had abdominal trans-flap breast reconstruction surgery which involved transferring tissue from her abdomen to try to recreate her left breast.

When the post-op pathological study was reviewed a few weeks later, it turned out that there was no cancer.

Williams then sued her surgeon and the hospital claiming that the surgery was unnecessary and that she was entitled to damages for her pain and suffering (both physical and psychological) related to the loss of her breast.

On October 3, 2008, the jury in Williams v. New York City Health & Hospitals Corp. (Supreme Court, Bronx County; Index # 14520/01) returned a verdict finding that the surgeon had committed malpractice in unnecessarily performing a mastectomy and that he did so without properly informing his patient of other options.

The jury found that Ms. Williams was not given the option of a lumpectomy (in which a small incision is made and the rest of the breast remains intact):

Williams was awarded pain and suffering damages in the sum of $6,500,000 ($3,000,000 past – 8 years, $3,500,000 future – 42 years). In a post-trial decision, Justice Cynthia S. Kern agreed with the defense that the damages award was excessive and ordered a reduction to $1,000,000.

This week, in Williams v. New York City Health & Hospitals Corp. (1st Dept. 2010), the appellate court has affirmed both the liability finding and the trial judge’s reduction of the damages award to $1,000,000.

Here are some details as to the plaintiff’s injuries:

  • complete surgical removal of her left breast
  • permanent scarring and disfigurement across abdomen and breast
  • significant post-op pain requiring a morphine pump and constant pain to the date of trial
  • chronic pain and swelling in her left arm, symptomatic of lymphedema
  • restricted social and athletic activities

The appellate judges split 3-2 in their decision. The majority justified the $5,500,000 reduction of the jury award simply by referring to (but not discussing the relevance of) three prior cases that bear factual similarities and by stating that there was no trial testimony establishing that plaintiff had suffered extreme emotional distress.

Here are the three cases cited by the majority:

  1. Motichka v. Cody (1st Dept. 2001) –$850,000 reduced from $2,250,000 for unnecessary modified radical mastectomy
  2. King v. Jordan (3d Dept. 1999) – $800,000 upheld for unnecessary mastectomy
  3. Lopez v. Bautista (2d Dept 2001) – $1,000,000 for failure to diagnose cancer, later requiring a mastectomy

The foregoing cases are all about 10 years old and in certain respects they are factually distinguishable from the Williams case. Lydia Williams was 32 years old at the time of her trial and unmarried; whereas, Ms. Motichka was 45 years old when she underwent her mastectomy, Ms. Lopez was 42 and married and Ms. King was 52 and married. Furthermore, Ms. Williams was cancer free free after her chemotherapy and need not have suffered any disfigurement while the injuries suffered by the plaintiffs in the other cases were of degree (they would have suffered less disfigurement and less pain). The appellate judges discussed none of these facts.

The two dissenting judges found that the graphic, unsettling photos of plaintiff’s body taken a few months after the surgery (that were shown to the jury) obviated the need for any extensive testimony by plaintiff or a psychologist regarding her extreme emotional distress. They stated that extensive testimony regarding plaintiff’s emotional damages might have been overkill and that it was obvious (a "universal truth") that plaintiff’s physical injuries and disfigurement resulted in tremendous lifelong psychological damages. The dissenting judges would have approved a pain and suffering award of $4,000,000.

Inside Information:

  • Plaintiff’s attorney asked the jury for $4,000,000 in pain and suffering damages for his client (and I hear that plaintiff would have accepted $1,200,000 before trial).
  • Defense counsel stated in his closing that not only was there no malpractice but also "the doctors in this case absolutely, absolutely saved the life of Lydia Williams."
  • The defense argued (unsuccessfully) that there was an improper attempt to inject race into this case – plaintiff’s attorney, in his closing argument, had stated that Ms. Williams was a poor Jamaican without insurance and that poverty and race have an impact on whether patients get the option of breast conserving treatment.

 

 

On July 29, 2002, then 16 year old Jennifer Gillette underwent a procedure by podiatrist Greg Atlas in which a wart was removed from the side of her left heel.

Complications developed, she was forced to undergo five new surgeries and Jennifer ended up suing Dr. Atlas claiming that he negligently performed the procedure and that he never properly informed her of the substantial risks involved in the way he did it.

Seven years later, on August 18, 2009, an Orange County, New York jury awarded her $3,000,000 for her pain and suffering ($1,500,000 past, $1,500,000 future – 55 years).

The jury based liability only on the so-called informed consent claim. That’s a long-standing legal principle under which a doctor may be held liable to his patient when:

  1. he fails to disclose alternatives to the treatment given and fails to inform his patient of the reasonably foreseeable risks associated with the planned procedure,
  2. a reasonably prudent patient would not have undergone the treatment had she been fully informed, and
  3. the lack of informed consent is a proximate cause of the injury.

A plantar wart caused by the human papilloma virus (HPV) that appears as a small lesion on the foot and typically presents as a cauliflower. It looks like this:

Plantar warts tend to be painful and can be spread in showers and swimming pools. Treatment usually involves peeling away of the dead surface skin cells with chemicals, acid or liquid nitrogen. Lasers are often used too. Surgery is a last resort.

In Jennifer Gillette’s case,  the doctor excised the wart with a scalpel, a procedure she said at trial she was unaware of until the moment it happened. She had expected laser treatment only.

Dr. Atlas told the jury that he told Jennifer (and her mother) that the risks of the procedure involved skin infection, scaring and repetition of the procedure. Critically, though, he did not tell her that the excision procedure could result in the rupture of her Achilles tendon and he did not tell her about alternate, conservative, methods he could have used to remove the wart.

Here’s what happened after the office procedure:

  • development of hypertrophic and keloid scar
  • three rounds of steroid injections into the back of her heel overlying the Achilles tendon
  • development of soft tissue deficiency, tendinosis and Achilles tendon degeneration

Jennifer underwent five surgeries before trial including a Haglund’s type excision (removal of a bony protuberance of her calcaneus – the heelbone) and an Achilles tendon debridement, repair, transfer and release.

For the seven years from the date of the wart excision procedure until trial, Jennifer was substantially restricted to a wheelchair, crutch and/or cane assisted ambulation. When standing and walking could be accomplished, it was only for short periods of time.

As to Jennifer’s claim for future pain and suffering, the jury heard credible testimony from experts that she’d forever suffer:

  • permanent loss of function of her left big toe (due to the tendon transfer surgery),
  • less functional and likely failure or degeneration of her Achilles tendon (now a transposed, smaller tendon),
  • chronic pain in the Achilles insertion, and
  • inability to return to any of the many recreational endeavors previously enjoyed without restrictions.

While the jury returned a verdict for every dime of the $3,000,000 requested in summation by plaintiff’s attorney, the trial judge found the award excessive and reduced it to $1,000,000 ($500,000 past, $500,000 future) [Gillette v. Atlas – Supreme Court, Orange County, 1/22/10; Index # 3844/06.]

Under New York’s CPLR 4404, the trial judge’s decision is conditional. That means that either the plaintiff agrees to the reduction or there will be a new trial (limited to determining anew the amount of damages).

Inside Information:

  • the jury found that the defendant had not committed malpractice either by determining to remove the wart by scalpel and laser or by injecting steroids afterwards but they did find that appropriate information had not been given to Jennifer and that had she been given the information she would not have consented to the scalpel excision procedure
  • the defendant had offered plaintiff a high-low agreement under which, no matter what the verdict, the defense would pay at least $500,000 but no more than $1,500,000 – meaning that if there were a defense verdict Jennifer would nonetheless receive $500,000 and if, as it turned out, the jury awarded more than $1,500,000 then she’d get $1,500,000
  • My sources tell me this case will now settle for $1,000,000. If so, Jennifer should have taken the high-low deal under which she’d have received $1,500,000

 

In yet another significant New York personal injury lawsuit, an appeals court has modified downward a jury’s pain and suffering verdict with no explanation why, leaving the public clueless, judges and attorneys without guidance as to how to evaluate future cases and the plaintiff with $1,325,000 less than the jury awarded him. And the decision has forced me to dig out, gather and present here the missing information.

In Dehaarte v. Ramenovsky, the judges of the Appellate Division, Second Department last week issued a decision on the plaintiff’s appeal of an August 3, 2007 jury verdict in his case against doctors accusing them of medical malpractice. After a Kings County jury found in his favor , Kern Dehaarte, then 22 years old, was awarded pain and suffering damages in the sum of $1,750,000 ($250,000 past, $1,500,000 future) but the appellate court has now held that the award was unreasonably excessive.

Instead, the appeals court held the proper award should have been only $425,000 ($225,000 past, $250,000 future). And that’s all the court said. No mention at all of what the case was about – either how the plaintiff was injured or what the doctors did wrong. And no discussion at all as to why $1,325,000 should be lopped off the award. As we’ve repeatedly discussed (for example, here andhere), New York law requires the appellate courts to state their reasons when they find a jury award should be decreased (or increased).

So once again it has fallen to our research team here at New York Injury Cases Blog to dig into the court files and the attorneys’ records to discover and report the missing information. We learned that in February 1997 Kern Dehaarte was a 12 year old boy suffering with gynecomastia, a condition in which male breasts are enlarged and resemble female breasts.

Kern’s mother took him to a pediatric surgeon who recommended and performed a subcutaneous mastectomy that ended up leaving the boy without a nipple on his breast.

The jury must have loved him or else hated the doctor because the jury award of $1,500,000 for 54 years of future pain and suffering was clearly excessive, in view of these facts:

  • the main injury was a scar on the breast
  • there was no evidence of any continuing physical pain from the scar;
  • plaintiff claimed anxiety and depression but underwent no psychological treatment
  • an analysis of similar injury prior cases (almost all of which involved women as that’s to whom nearly all breast injuries occur) showed that none could justify the large verdict because there was no evidence that plaintiff’s sexual identity or interpersonal relationships with women was impacted by his injuries

Appellate counsel for the parties submitted briefs on appeal that cited and discussed in detailseveral prior appellate cases in each one of which awards were made in mastectomy injury cases (e.g., Sutch v. YarniskyMotichka v. Cody and Ditingo v. Dreyfus). The judges in Dehaarte v. Ramenovsky, however, mentioned none of them.

Even more startling, the only case the judges did cite in discussing damages was Evans v. St. Mary’s Hospital of Brooklyn and that case was cited merely for the proposition that Kern Dehaarte’s $250,000 past pain and suffering jury award (10 years) should be reduced to $225,000.Evans v. St. Mary’s Hospital of Brooklyn, though, dealt with a $100,000,000 jury award($30,000,000 past – 13 years, $70,000,000 future – 31 years) in a tragic medical malpractice case that was reduced to $1,800,000 ($800,000 past, $1,000,000 future).

In Evans, a 28 year old woman presented to a hospital emergency room with breathing difficulties and when doctors there improperly removed her breathing tube she suffered extensive and permanent brain damage.  Upon learning the facts in the Evans case (they were not reported in the decision), one wonders why the judges in Dehaarte (a mastectomy case) cited Evans (a brain damage case) as support for their findings as to damages.

 Final Note: Some have said I’m on a mission to make the appellate judges explain more in their decisions. Perhaps that’s true to some extent; however, I want to make it clear that I have great respect for these judges. Most have deservedly risen through the ranks, are exceedingly intelligent and are extremely hard working public servants. They read through records on appeal and attorneys’ briefs that are, together, often more than 1,000 pages for a single case. And they  typically issue several hundred decisions each month.

So I don’t at all question the integrity, acumen, or commitment of our appellate court judges. What I do question, though, is why they can’t make it part of their procedure in personal injury lawsuit appeals to explain their reasons for an increase or decrease of a jury award and to cite prior cases with meaningful and helpful explanations of why they are relevant or controlling. In that way, practicing lawyers will be better able to evaluate and settle cases with the result that fewer cases will clog our court system and more realistic positions will be taken by plaintiff and defense lawyers on the cases that remain.

In the end, this extra effort I’m urging upon our appellate judges will result in less work for them because there will be fewer cases brought and fewer still appealed. That’s a win-win situation for all of us.

Burn injuries are without doubt among the most painful injuries a person can experience. They come from a wide variety of accidents such as fires in the home or a car, electrical shocks on the job and even operating room lights during surgery. Recent court decisions in New York have upheld verdicts for pain and suffering damages in burn injury cases from $300,000 to $3,600,000.

In Hawthorne v. Vehicle Asset Universal Trust (Index # 16721/04; Supreme Court, Queens County; 12/11/08), a 40 year old construction worker, James Stanton, was literally burned alive in his car when he could not escape after a motor vehicle accident.

He sustained deep burns of his entire body and endured 10 minutes of conscious pain and suffering before death. A Queens County jury awarded Mr. Stanton’s estate $10,000,000 for his pain and suffering but the trial judge found that the jury had been over-emotional and rendered an excessive award. The judge ordered a reduction to $2,500,000.

In another recent big damage burn injury case, a Columbia County jury awarded a 24 year old electrician $3,600,000 for his pain and suffering ($300,000 past, $3,000,000 future). Jordan Neissel was attempting to repair a college’s circuit breaker when he was shocked and severely burned. Although only about 7% of his external skin was damaged, the jury’s award was upheld in full by the appeals court in Neissel v. Rensselear Polytechnic Institute. The appeals court took into account the fact that plaintiff sustained significant and permanent muscle and nerve loss, lacks feeling in his arms and suffers from post-traumatic stress including flashbacks, nightmares, social isolation and panic attacks.

Two less gruesome recent cases show that even without massive injuries, burn cases result in significant pain and suffering verdicts that will be upheld by the courts.

In Paruolo v. Yormak, a 50 year old school guidance counselor suffered from elbow pain that was ultimately diagnosed as a chondral injury requiring surgery to remove loose bone fragments. During the surgery, an operating room light was negligently maintained and caused third degree burns on Mr. Paruolo’s elbow and arm. He didn’t even know he had burn injuries until there days after surgery when his bandages were removed and there was visible blistering. He had infections, underwent six days of hospitalization to administer antibiotics and he needed a debridement and skin graft from his thigh.

Mr. Paruolo sued and liability was conceded but the amount of damages could not be agreed upon and trial ensued in Westchester County. The jury returned a verdict of $300,000 for pain and suffering ($275,000 past, $25,000 future). Plaintiff appealed claiming the future damages award was too low and the appeals court agreed finding that the future pain and suffering sum should be increased to $150,000 with the result that the final award was $425,000 ($275,000 past, $150,000 future).

The court was moved by the facts that plaintiff had two permanent and embarrassing scars on his elbow and thigh, the scars could not be exposed to sunlight and posed a heightened risk of skin cancer, he had to wear long sleeve shirts in warm weather and would suffer from all of these for 25 years.

Burns are classified according to degrees:

In Stefanescu v. City of New York, a 30 year old transit authority track worker was working in the subway when contact with a metal plate energized the third rail and caused a flash fire. Mr. Stefanescu was set on fire and suffered second degree burns to his entire face. While he claimed residual symptoms such as tightness, heightened sensitivity to temperature and sunlight and post-traumatic stress, plaintiff required minimal hospitalization, standard care and no skin grafts or surgery. At the time of trial, his scars were no longer visible. The Kings County jury awarded plaintiff $750,000 ($650,000 past, $100,000 future) for his pain and suffering but the trial judge reduced the verdict to $200,00 ($150,000 past, $50,000 future).

The appeals court finally set the verdict at $300,000 ($250,000 past, $50,000 future) finding that $250,000 for Mr. Stefanescu’s past pain and suffering was reasonable because of the great deal of pain  he suffered in the four year period from the accident to the trial. As to future damages, though, the court found $50,000 reasonable in view of plaintiff’s minor treatment and lack of residual damages or permanent injury.

Pain and suffering verdicts in burn injury cases are evaluated buy the appellate courts in most respects similar to the way they evaluate damages in other pain and suffering scenarios – what’s reasonable depends on the severity of the injury, the type and length of treatment (especially surgery), the activities the plaintiff can no longer do or can do only with limitations or pain and the expected period of future pain and suffering (when permanent, the period is the number of years plaintiff is expected to live).

In burn cases, there are several unique additional factors that the courts (and juries) consider:

  • post-traumatic stress – with credible psychological testimony and a gruesome mechanism of injury (e.g., fire causing facial burns)
  • scars – burns leave some of the ugliest permanent scars and when in the face they can be shocking
  • skin graft procedures – which can be excruciatingly painful and leave scars on other parts of the body

Here’s what the skin graft procedure looks like:

As the cases demonstrate, verdicts for pain and suffering damages in burn injury cases vary widely, just as the types of burn injuries vary (i.e., based on the degree – 1st, 2nd or 3rd, based on the number of skin grafts required and whether there is permanent scarring). We will continue to report on burn injury cases as they come to trial and are ruled on by juries and judges.