On September 1, 2010, while at work as a physical therapy assistant, Arlene Daniele, then 59-years-old, felt a twinge in the area of her lower back. The next day, she felt pain when attempting to walk. She went that day to see a pain management physician and was diagnosed with lumbar enthesopathy (inflammation) and myalgia (muscle pain) and given two trigger point injections (a steroid and an anti-inflammatory).

After a Labor Day weekend of pain, a friend took Ms. Daniele to Winthrop University Hospital in Mineola on September 7th where she was treated in the emergency room by a physician’s assistant who ordered an anti-inflammatory injection, pain medicine and an x-ray (which showed spondylolisthesis – forward displacement of a vertebra) before determining that there was no spinal emergency and discharging Ms. Daniele.

Unfortunately, her pain continued and on September 9, 2010, Ms. Daniele was taken by ambulance to another hospital, where an MRI of her thoracic and lumbar spine revealed multiple spinal epidural abscesses (from a bloodstream infection).

Ms. Daniele was transferred to Winthrop for emergency an emergency laminectomy – surgery to decompress the discs at T-6 to L-4.

A week later, she required more surgery – a drainage of a deep abscess on her cervicothoracic spine and a C7-T1 cervical discectomy and fusion.

Ms. Daniele remained hospitalized for two weeks following her second surgery and then spent five weeks in a rehabilitation facility until she was discharged to home.

In the ensuing medical malpractice lawsuit, a Nassau County jury found the pain management doctor was 15% at fault for his delay in following up on his patient after she called his practice on September 5th complaining of continued pain, a fever and difficulty moving around. The jury also found the physician’s assistant and Winthrop Hospital were 85% at fault for discharging Daniele to home without performing a sufficiently thorough examination and/or ordering an MRI and/or blood tests.

While it was conceded that plaintiff probably would have needed some surgery to address the abscesses that pre-existed her encounters with the defendants, she argued that had her condition been timely and properly diagnosed, she would not have suffered any deficits to her cervical spine, and she would have had a much better chance of recovering fully from the lumbar aspects of the abscess. The jury agreed and returned a verdict  awarding pain and suffering damages in the sum of $2,000,000 ($500,000 past – five years, $1,500,000 future – 20 years). The jury also awarded damages for plaintiff’s loss of earnings in the sum of $600,000 ($250,000 past, $350,000 future – seven years).

Defendants’ post-trial motion to set aside the verdict was denied. They then appealed arguing that rulings made during the trial were improper, unfair and so prejudicial that a new trial was required as to the issue of liability. Alternatively, they argued that the damages awards were excessive and should be reduced.

In Daniele v. Pain Management Center of Long Island (2d Dept. 2019), the appellate court agreed with the defendants  to the extent that it ordered (a) the jury verdict on liability was set aside and (b) the matter was remitted to the trial court for a new trial on the issue of liability. In light of its determination, the appellate court did not need to specifically address the damages issue.

As to damages. there was no dispute about the rule that where a defendant’s wrongful act did not cause a disease or condition, but only aggravated and increased the severity of a condition existing at the time of an injury, plaintiff may recover only for such increased or augmented sufferings as are the natural and proximate result of the defendant’s act.

The defendants argued that there was insufficient proof that plaintiff’s condition was exacerbated by a delay in surgeries to treat her pre-existing abscesses and that since she would have required the surgeries to treat the abscesses, the only injury attributable to them would be any pain and suffering directly flowing from the alleged treatment delay.

Plaintiff claimed she continued to have back and leg pain, her right foot remains numb and she is unsteady on her feet and can no longer work as a physical therapy assistant or perform activities such as hiking, dancing or engaging in sports. Her damages expert testified that she has permanent cervical-related weakness in her right arm and hand, impaired balance, impaired tandem gait, reflex asymmetry and an abnormal or dropped reflex in her ankle which related to damage in her lower spine. Plaintiff argued that but for the malpractice,  she would not have suffered any deficits to her cervical spine, and she would have had a much better chance of recovering fully from the lumbar aspects of the abscess.

The defendants argued that there was no evidence plaintiff’s condition was exacerbated by a delay in surgeries to treat her preexisting abscesses and in any event the pain and suffering award was excessive. They noted that plaintiff moved to Georgia in 2012 where, that year, her then treating physician found her gait to be normal and that in 2013 he found her neck to be supple and without pain on movement. Further, they noted that plaintiff took no pain medication, exercised regularly and was able to walk unassisted with shopping bags in her arms.

Inside Information:

  • Plaintiff had treated with the defendant pain management physician in November 2009 to address complaints of upper thoracic pain. She was then administered six to nine trigger point injections over the course of two months.
  • Two other private doctors were significantly involved in plaintiff’s treatment – the surgeons who operated on her spine. There was evidence that these doctors delayed in the diagnosis and treatment of plaintiff’s cervical abscesses but they were not named as defendants so their percentages of fault, if any, were not determined by the jury.