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).

 

 

At 5 p.m. on Thursday January 11, 2007, Christopher Cicola was stopped for a red light on Route 112 in Medford when a Suffolk County Sheriff’s car struck his 2004 Honda in the rear.

The impact jolted the seat-belted Mr. Cicola forward and back but he was able to get out of his car on his own, declined medical attention at the scene and drove his car home.

At home that night, Mr. Cicola, then 35 years old, had throbbing pain in his neck. He treated himself with ice and the next day called an orthopedic surgeon who was able to see him three days later, thus beginning a course of treatment that included various doctors, cortisone shots, radiological studies and physical therapy and culminated in two major surgical procedures – one almost two years later and a second a year after that.

A CT scan showing the spine after the types of surgery Mr. Cicola underwent – a two level fusion at C4-6:

On February 8, 2007, Mr. Cicola filed a notice of claim (a condition precedent to a lawsuit against a municipality) and on April 10, 2007 he filed a summons and complaint claiming he’d sustained serious injuries in the accident and seeking pain and suffering damages.

On  September 17, 2007,  an order granting summary judgment on liability was issued in plaintiff’s favor and the matter proceeded to a trial on damages only starting on April 17, 2012.

After six days of trial, the Suffolk County jury returned a verdict for pain and suffering damages in the sum of $1,025,000 ($325,000 past – five years, $700,000 future – 35 years).

On appeal in Cicola v. County of Suffolk (2d Dept. 2014), the pain and suffering awards were deemed excessive and reduced to $250,000 ($150,000 past, $100,000 future).

As indicated in the court’s decision, Mr. Cicola underwent two spinal fusion surgeries to repair herniated discs:

  1. on November 18, 2008, an anterior cervical diskectomy and fusion at C4-5 (with a plate and bone graft) and
  2. on October 16, 2009, another diskectomy and fusion, this time at C5-6 (with two plates and a bone graft, after removing the previously inserted plate)

major issue at trial and then on appeal was whether and if so to what extent Mr. Cicola had pre-existing degenerative conditions in his neck.

Plaintiff argued that whatever disc or other degeneration in his cervical spine that may have existed before the car accident was minimal and played no role in his case because:

  • everyone has some normal, age-related degeneration and whatever such condition plaintiff had was minimal,
  • his treating orthopedic surgeon Paul Alongi, M.D. testified that shortly after the accident diagnostic films did not show worn out cervical discs (no “bone on bone”) or any big bony spurs,
  • there were no symptoms of pain before the accident, and
  • Mr. Cicola had never before treated with any healthcare provider for any cervical complaints

The defendants argued that plaintiff’s herniated discs were the result of degenerative disc disease that pre-existed this accident and that whatever injuries plaintiff sustained and treatment he underwent after his accident (i.e., the two cervical fusions) were directly related to degeneration because:

  • x-rays taken four days after the accident showed disc space narrowing with loss of fluid, something the defendants’ expert orthopedic surgeon Arthur Bernhang, M.D. opined usually appears in older persons and is indicative of degeneration,
  • the x-rays also showed (and plaintiff’s surgeon later removed) osteophytes (bony spurs) at C4-5, a condition the surgeon conceded was degenerative
  • plaintiff, who stood five feet 11 inches tall and weighed 210 pounds, lifted weights for 15 years often six days a week, achieving a “muscle bound” physique by “abuse of his own body,” and
  • the impact between the cars was minimal and plaintiff declined medical attention at the scene stating he felt fine

New York law provides that a plaintiff may not recover damages for an aggravation of a pre-existing condition unless it is specifically pleaded in the complaint or bill of particulars. It was not done so in this case. In his charge, the trial judge instructed the jury: “You may only award damages for injuries caused by the accident and not for any previous existing conditions.”

At the time of trial, plaintiff admitted that he’d obtained some relief following his surgeries but testified that he still experienced daily neck pain, was under the care of his surgeon every three months and took Lyrcia to manage his symptoms.  Furthermore, while he could engage in moderate exercise (including lifting weights on machines) but could no longer hike, jog or engage in any sports claiming that “physical activity is non-existent.”

Inside Information:

  • In his opening statement,  plaintiff’s attorney withdrew previously asserted right shoulder impingement and tendinosis injury claims. Defense counsel stated in his opening that the withdrawal was because of the expected testimony of a biomechanical engineer to the effect that it was “impossible” for plaintiff to have sustained such an injury given the physical dynamics of this accident.
  • There was no loss of earnings claim. Plaintiff had been a mortgage broker at the time of his accident, was out of work for one week, lost his job for non-accident related reasons and 18 months later became employed again, this time doing accounting work.
  • Plaintiff’s pre-trial settlement demand was $950,000. Defendant made no offer at all. Plaintiff’s counsel asked the jury to award $750,000 for past pain and suffering plus $800,000 for the future. Defense counsel asked the jury to award no damages at all.