New York Injury Cases Blog | Medical Malpractice Law | John Hochfelder

Time 2021-01-06 10:03:40

Web Name: New York Injury Cases Blog | Medical Malpractice Law | John Hochfelder

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Damages News, Updates and Analysis of Personal Injury, Wrongful Death and Medical Malpractice AwardsOn October 5, 2013, Christine O Connell was sitting in her car stopped at a red light in Hamburg (a Buffalo suburb) when another driver drove through the light causing a crash. Christine, then a 24 year old student, declined medical treatment at the scene but  called her doctor that night complaining of low back pain.In her ensuing lawsuit, Christine recovered the insurance policy limits of $500,000 against the other driver and owner.She then made a supplementary underinsured motorist ( SUM ) claim against her own carrier, State Farm. The SUM arbitrator awarded $2,250,000, less a setoff of $500,000 (the amount already recovered in the underlying lawsuit), for a total of $1,775,000.In O Connell v. State Farm Mutual Auto. Ins. Co. (4th Dept. 2020), the judgment entered upon the SUM arbitration award has been affirmed. The appellate court stated that the findings of the arbitrator were rational, had evidentiary support, and were not arbitrary and capricious.Here are the injury details:five herniated discs: at T12-L1, L1-2, L3-4, L4-5 and L5-S1 (with bilateral radiculopathy and compression on nerve roots)low back pain, radiating and continuingunable to return to prior activities such as running, swimming and regularly exercisinglimited in ability to bend, get dressed, cook, clean and perform household choresneed for three level discectomy and fusion of L3-S1 within near futureThe defense noted that plaintiff s first medical treatment herein was 10 days after the accident, she never took any medicine except Tylenol, did not miss any time from school because of the accident and was involved in a 2006 car accident following which she was diagnosed with cervical and thoracic herniations that may ultimately require surgical intervention. The defendant s expert neurosurgeon in the 2013 matter opined that plaintiff sustained some temporary pain to her lumbar spline that requires no further treatment and the MRI reports showing herniations portray only mild degenerative changes.Inside Information:Plaintiff graduated from law school after the accident and joined her father s law firm the firm that represented her in this matter.The only medical provider plaintiff treated with other than her neurosurgeon  was a chiropractor (250 times); she never underwent physical therapy or saw a pain management physician.On June 19, 2013, German Paucay, then 24 years old, was employed as a stucco installer at the site of the construction of a new building at 601 East 163rd Street in the Bronx when he fell from a scaffold seven feet to the ground below sustaining injuries.The Site of the AccidentIn his ensuing lawsuit against the premises owner, the general contractor and a subcontractor, Mr. Paucay was granted summary judgment as to liability, under Labor Law Section 240(1), and a damages only trial was conducted at the end of which the Bronx County jury awarded pain and suffering damages in the sum of $75,000 (all past five and a half years). Plaintiff was also awarded damages for medical expenses ($90,000 past, $20,000 future two years).In plaintiff s post-trial motion for a new trial, he argued that the verdict was on its face inconsistent: How can the jury award no money for future pain and suffering and then determine that future medical expenses were warranted? The trial judge denied the motion.In Paucay v. D.P. Group General Contractors/Developers, Inc. (1st Dept. 2020), it was held that the verdict on future pain and suffering was contrary to a fair interpretation of the evidence and constituted a material deviation from what would be reasonable. Accordingly, the appellate court remanded the case for a new trial on the issue of future damages only.Plaintiff claimed he sustained the following injuries:significant traumatic brain injury along with major depression, post-traumatic stress syndrome and post-concussion encephalopathyinjuries to both knees: fractures to his left patella and fibula, with tears to several ligaments; right knee meniscal tears requiring arthroscopic surgery on 6/20/16herniated disc at L5-S1, necessitating laminectomy on 5/17/17Defendants argued that the jury reasonably concluded either that many of the injuries claimed by plaintiff were feigned or not causally related to the accident, or that the injuries were not as significant as alleged by plaintiff and his doctors. It was their position from the start that plaintiff fell onto his knees and then fell to the ground, did not fall backwards and hit his head and that the only injuries sustained in the accident were to his patella and related ligaments which ultimately healed.Inside Information:Ten medical experts testified seven for plaintiff, three for the defense.The jury also awarded damages for plaintiff s loss of earnings ($20,000 past only).In his closing argument, plaintiff s attorney asked the jury to award damages for past pain and suffering between between $3,000,000 and $5,000,000 and for the future between $8,000,000 and $12,000,000.In November, 2012, then 64 year old Marlena Robaey was diagnosed with malignant mesothelioma. She then sued several companies alleging that she d contracted mesothelioma from her exposure over many years to asbestos from their automotive gaskets in car engines.On January 20, 2017, a Manhattan jury ruled in plaintiff s favor and awarded her pain and suffering damages in the sum of $50,000,000 ($40,000,000 past four and a half years, $10,000,000 future one year). The trial judge reduced the pain and suffering award to $16,000,000 ($12,000,000 past, $4,000,000 future).In Robaey v. Air Liquid Systems Corp.. (1st Dept. 2020), the pain and suffering award was further reduced to $9,500,000 ($5,500,000 past, $4,000,000 future).Here are the injury details:malignant mesothelioma epithelioid type with tumor spreading upon diagnosisnumerous invasive procedures and surgeries including complete hysterectomy, oophorectomy (removal of ovaries), omentectomy (removal of peritoneum connecting stomach with other organs), chemotherapy and a debulking procedure (involving resection of the right hemidiaphragm and small bowel)chronic and continuing pain (especially in abdomen and lungs), extreme shortness of breath, systemic cytotoxic therapy (causing nausea, vomiting and diarrhea), depression and fear of impending deathDefendants argued that the verdict was wildly excessive and noted that for a total of about 25 months since her diagnosis plaintiff s disease had been stable and her primary reported symptoms were fatigue, shortness of breath upon exertion and mild pain. Furthermore, they noted that plaintiff had pre-existing conditions unrelated to asbestos exposure including type two diabetes, chronic kidney disease (that left her facing permanent dialysis) and pancreatitis.The jury also awarded loss of consortium damages to plaintiff s husband in the sum of $25,000,000 ($15,000,000 past, $10,000,000 future) which was reduced by the trial judge to $1,250,000 ($1,000,000 past, $250,000 future). The appellate court further reduced the consortium award to $900,000 ($650,000 past, $250,000 future).Inside Information:Plaintiff died from her injuries on May 30, 2017, at the age of 68 years.Defendants objected to several aspects of plaintiff s closing argument including counsel s reference to the defense pulmonology expert, James D. Crapo, M.D., as Full of Crapo. The trial judge issued instructions to the jury to disregard any improper remarks.On January 6, 2015, Kenia Cabrera had just finished work at a Dunkin Donuts shop located at LaGuardia Airport and had returned to the employee parking lot to retrieve her car and go home. As she was exiting the lot, a Mack truck spreading salt to keep the lot free of ice struck her car.Ms. Cabrera, then 40 years old, refused medical attention at the scene of her accident; she went to her primary care physician the next day complaining of neck and back pain. She sued the Port Authority of New York and New Jersey (the owner of the salt-spreader truck) claiming serious personal injuries.A Bronx County jury awarded plaintiff pain and suffering damages in the sum of  $16,000,000 ($4,000,000 past three and a half years, $12,000,000 future three years). The trial judge ordered a new trial on damages to be held in part because the $12,000,000 future damages award was excessive. In  Cabrera v. Port Auth. of N.Y. N.J. (1st Dept. 2020), the appellate court went further ordering that a new trial be held on both liability (and damages) because of errors by the trial judge as to evidence issues.Here are the injury details:L5-S1 annular tear with 4/2 /15 lumbar fusion surgery to remove bone and place hardware to prevent displacementC4-5 herniated disc with cervical fusion surgery to remove disc and place hardware on 3/1/16required walker for three months after back surgery and was out of work for several monthscontinuing pain and restricted ranges of motionDefendant argued that the vehicle impact was low speed and minor, plaintiff sustained no traumatic injuries from the accident, she returned to work after the accident (and made no loss of earnings claims), waited two weeks after seeing her doctor before seeking any further medical treatment and that there was no medically indicative reason why the plaintiff underwent either surgery. Inside Information:In his closing argument, plaintiff s counsel asked the jury to award $4,000,000 for past pain and suffering and $12,000,000 for the future the exact amounts they awarded.Inexplicably, the jury awarded future damages for three years only, despite plaintiff s life expectancy of 41 years.On March 21, 2009,  43-year-old Gloria Bonila died as a result of injuries sustained in a fire at the Riverview IRA, a state-run home for mentally disabled individuals in Wells, New York.The Riverview IRA fire scene.A claim against the state was filed on behalf of Ms. Bonila seeking damages. Claimant was granted and an appellate court affirmed  summary judgment on liability. The mater then proceeded to a trial on damages following which the Court of Claims judge awarded $4,000,000 for 3 1/2 hours of pre-death pain and suffering. The case was appealed because the parties disagreed on the amount of post-judgment interest to be added to the pain and suffering award.In Davila v. State of New York  (3rd Dept. 2020), the appellate court affirmed the lower court s determnination as to the amount and manner of calculating post-judgment interest. The award thus stood at $5,350,000 ($4,000,000 for pre-death pain and suffering, $1,299,000 for pre-judgment ineterst and $51,000 for post-judgment interest).Ms. Bonilla was a long time resident of the home functioning in the profound range of mental retardation. She was non-verbal and not self-preserving, meaning she could not get herself out of harm s way. After a fire alarm was activated at 5:25 a.m. on the morning of the fire, Ms. Bonilla was escorted from her bedroom to a mudroom but was never evacuated from there in time to save her life. The fire fully engulfed the building and was not brought under control for more than two hours until about 8:05 a.m. following which Ms. Bonila was found in the remains of the mudroom still alive, moving under some debris. The trial judge determined that the decedent was conscious at a level experiencing pain for at least 3 hours and 38 minutes, from 5:30 a.m. until 9:08 a.m.Here are the injury details:When she was first found at the scene, Ms. Bonila was moaning, as if in pain, and turning her head from side to side with her eyes open. She was wet with smoke and steam coming from her.Arriving EMS personnel found first, second and third degree burns over 80-90% of her body with her hands burned so badly that the finger bones were exposed and the flesh was totally gone.When her clothes were being cut off at the scene, Ms. Bonila was screaming and fighting.When Ms. Bonila was taken away from the scene on a backboard at 8:12 a.m., she was breathing on her own, thrashing around and moaning.She was moved to an EMS helicopter at 9:02 a.m. where it was noted she was in severe pain and restless, then unresponsive after which she was intubated but still responsive to pain until about 9:08 a.m. when she had no pulse and her heart stopped. Resuscitation efforts continued. A doctor declared Ms. Bonila dead at the hospital at 9:59 a.m.Inside Information: Three other developmentally disabled resident of Riverview IRA died from the fire along with Ms. Bonilla.The trial judge described this as a case of unimaginable conscious pain and suffering with no other cases truly comparable to the facts of this case. Pre-judgment interest accrued from 5/30/14, the date of the liability determination against the defendant.On December 21, 2012,Zobeida Hiciano was injured when she was struck by a vehicle as she walked across Jerome Avenue in the Bronx.After opening statements in her lawsuit against the driver and owner of the vehicle to recover damages for her back and elbow injuries, the trial judge directed a verdict in Ms. Hiciano s favor on the issue of liability, leaving the question of her comparative negligence, if any, to be determined.The Bronx County jury determined that the driver (who was backing up in the process of parallel parking) was only 35% at fault, assigning 65% of the fault to the plaintiff (who was crossing the street in the middle of the block). The jury awarded pain and suffering damages in the sum of $150,000 ($100,000 past six years, $50,000 future five years).On plaintiff s motion, the trial judge ruled that (a) the jury should have allocated 50% of the fault to each side and (b) the pain and suffering damages award should be increased to $1,800,000 ($900,000 past, $900,000 future).The appellate court, in Hiciano v. Benson (1st Dept. 2020), reversed the trial judge s order and reinstated the verdict.Here are the injury details:displaced intraarticular radial head (elbow) fracture  with open surgery involving removing a part of the tendon and making three holes in the surrounding bonelumbar spine injury with surgery involving the insertion of screws in the spine, a bone graft and reconstructionPlaintiff, 66 years old at trial, claimed continuing pain and limited range of motion in her arm and spine. The defense argued that neither surgery was needed because of the accident trauma and, in any event, plaintiff made an excellent recovery.Medical experts testified for both sides, including both of plaintiff s treating surgeons. The defense neurosurgeon testified that plaintiff had significant pre-existing degenerative disease in her back and sustained merely a strain as a result of the accident. The defense orthopedic surgeon testified that plaintiff s elbow surgery was not related to the accident trauma but instead to repetitive motion and that in any event plaintiff made an excellent recovery.Inside Information:Plaintiff walked away from the scene of the accident but later that day went to the nearby hospital complaining of pain in her elbow and back.Plaintiff testified at trial through a Spanish speaking interpreter.In his summation, defense counsel argued that plaintiff was solely at fault and that the surgeries were not needed because of the accident. He then said, if you believe that she injured her elbow, fair and reasonable compensation for her elbow is $150,000 and If you believe that  everything [regarding the lower back] is related to the accident, and this is the competent cause for everything that led to the spine surgery, I submit to you $450,000 is fair and reasonable compensation. That s $600,000 in total, total recovery. On November 4, 2004, then 44 year old Charles Malmberg underwent an anterior cervical discectomy and fusion surgery to remove a degenerative disc and osteophytes at the Syracuse Veterans Administration Medical Center.After the surgery, X-rays and an MRI showed he suffered from spinal cord impingement at several points, with excessive edema in the spinal cord. He was diagnosed with incomplete quadriplegia.Malmberg filed a medical malpractice claim against the Veterans Administration in 2006. After bench trials on liability and damages, the court concluded that the defendant is liable and awarded substantial pain and suffering and economic damages.Multiple appeals followed and the matter ultimately was resolved after the decision in Malmberg v. United States of America (N.D.N.Y. 2020)  ordered that an award of pain and suffering damages in the sum of $18,000,000 ($7,500,000 past 15.5 years, $10,500,000 future 20.5 years) does not deviate materially from reasonable compensation. Here are some of the injury details:No use of legs, cannot stand and wheelchair bound for lifeVery limited use of handsDaily uncontrollable spasmsIncontinenceSignificant daily physical pain requiring pain medicationsLoss of sexual functionDepression and multiple psychological issuesInside Information:In his pre-suit administrative claim, plaintiff sought $6,000,000 in damages. Much of the ensuing litigation concerned his application to increase that ad damnum amount.Prior to becoming paralyzed, plaintiff was completely independent although he was not working because of his cervical radiculopathy.According to one of plaintiff s attorneys, Robert B. Nichols, this case settled for $21,500,000 after the district court s recent decision, more than 16 years after the surgery that left Mr. Malmberg paralyzed.On November 12, 2011, Cinthia Arcos delivered a healthy baby at Forest Hills Hospital. Her obstetrician gynecologist, Yehuda Bar-Zvi, M.D., delivered the baby utilizing vacuum extraction.During the delivery, Ms. Arcos suffered a third degree laceration, which means that the laceration involved the anal sphincter. Dr. Bar-Zvi performed a repair and she was discharged from the hospital two days later. Ultimately, though, it was determined that Ms. Arcos, then 27 years old, had a rectovaginal fistula (an abnormal connection between the rectum and the vagina).In her ensuing medical malpractice lawsuit against her physician and his medical practice, the Queens County jury found that the doctor did not detect and repair a 4th degree laceration in the rectal mucosa after the delivery (and failed to obtain informed consent to the vacuum delivery method) and they  awarded Ms. Arcos pain and suffering damages in the sum of $920,000 ($800,000 past four years, $120,000 future 12 years). Defendants appealed arguing that the award was excessive; however, in Arcos v. Ben-Zvi (2d Dept. 2020), the award has been affirmed.Here are the injury details:development of rectovaginal fistula causing plaintiff to pass liquid stool and gas through her vaginatwo subsequent surgeries: first, seven months after delivery and then four months later for a repeat vaginal repaircontinuing pain on intercourse and moving bowels, stool leaks due to decreased strength in sphincter and passage of gas through vaginaThe defendants argued that plaintiff s fistula had been successfully repaired, her complaints had been resolved less than a year after her delivery and she did not require any additional treatment.Plaintiff s husband was awarded damages for the loss of his spouse s services and society in the sum of $100,000 (past only). The defendants argued that this award should be set aside in its entirety because the husband did not provide any testimony to support the award (he wasn t asked any questions about his loss of society and services). There was, though, testimony from Ms. Arcos about how their sexual relationship suffered and the appellate court affirmed this aspect of the award.Inside Information:At trial, the defendants argued there was no malpractice but afterwards they did not challenge the jury s findings on liability and causation.After trial, the defendants urged a reduction of the jury s award to no more than $700,000 would be appropriate and just compensation. James Stock, Jr. was exposed to asbestos used in and on valves manufactured and supplied by Jenkins Bros. when he was employed by by New York Wire Mills in Tonawanda from 1979 to 1986. In August 2015, Mr. Stock went to the hospital complaining of abdominal pain that had been bothering him for a few months. By December 2016, he was formally diagnosed with mesothelioma.Mr. Stock sued  Jenkins Bros. and others (manufacturers, sellers and distributors) in Erie County claiming that he d been exposed to asbestos which caused his mesothelioma and that the defendants were liable because they failed to warn him about the hazards of asbestos exposure.On September 24, 2018, the jury found in plaintiff s favor and awarded him pain and suffering damages in the sum of $6,000,000 ($4,500,000 past three years, $1,500,000 future one year). Jenkins Bros., by then the sole remaining defendant after others settled, argued that the damages award was excessive. The trial judge denied defendant s motion and, in Stock v. Air Liquid Systems Corp. (4th Dept. 2020), the verdict has been affirmed.Here are the injury details:Abdominal and chest pain beginning three years before trial, intermittent at first but continuous for the two years prior to trial8 surgeries including a thoracotomy, rib resection, extrapleural pneumonectomy and bronchial stump resectionFour rounds of chemotherapy and one of radiation, with complicationsUnable to continue recreational activities such as hunting, golfing and working outUnable to continue working as a police officerUnable to play with grandkids or perform household choresPlaintiff, 60 years old at the time of trial, died in September 2019 while the appeal of this case was pending.Inside Information:Plaintiff was also awarded past and future lost earnings in the sum of $460,000 and his wife of 39 years was awarded past and future loss of her husband s services and society in the sum of $500,000.In his summation, plaintiff s attorney asked the jury to award $10,500,000 for pain and suffering while defense counsel suggested no more than $700,000. After trial, defense counsel requested that the pain and suffering award be reduced to $2,000,000.On February 18, 2013, Judy Zhou, then a nine-year-old novice skier, was injured while skiing at the Tuxedo Ridge Ski Center in Tuxedo. On her first run of the day, Judy took the chairlift to the top of the bunny slope, a beginner s hill. On her way down, she crashed into a white PVC pole which was being used as a stanchion to hold up an orange rope that designated where to wait for the ski lift.In the ensuing lawsuit, the Queens County jury returned a verdict against the ski center and awarded pain and suffering damages in the sum of $18,000,000 ($3,000,000 past 4 1/2  years, $15,000,000 future 66 years).Defendants appealed arguing that the trial judge unfairly gutted their defense by erroneously (a) excluding critical video deposition testimony of a non-party ski patroler, (b) redacting plaintiff s admission from the accident report (that she was injured when she fell and hit part of a ski slow sign), and (c) refusing to charge the jury on assumption of risk. In Zhou v. Tuxedo Ridge, LLC (2d Dept. 2020), the appellate court agreed with each of the defendants arguments and the liability verdict has therefore been reversed with a new trial to be held on the issue of liability.Defendants had also argued alternatively that the damages verdict was a runaway verdict that should be reduced to the mid six figures. The appellate court addressed the damages issue holding that the jury awards for past and future pain and suffering deviated materially from what would be reasonable compensation. Accordingly, the court ordered that if liability against the defendants is found in the new trial then there shall be a new trial on damages as well unless plaintiff consents to reduce the first jury s $18,000,000 award to $2,200,000 ($950,000 past, $1,250,000 future).Here are the injury details:jagged displaced Salter-Harris II femur fracture destroying 50% of the growth plateSalter-Harris Femur Fracturesfixation surgery with placement of hardwarehospitalized two days, casted six weeks followed by custom made long-leg brace for two yearsone-half inch leg shortening, valgus deformity and significant pelvic tilt causing scoliosisPlaintiff s treating orthopedic surgeon stated at trial that her conditions are permanent and lifelong and he recommended two complex surgeries including an osteotomy followed by external fixation that he said is hideous and would for sure have endless complications.  Her doctor also opined plaintiff will need a total knee replacement when she is in her 30 s. The defense presented no medical expert testimony.Plaintiff argued that this is a case of deformity of a child during her most active growth age, causing dramatic deformity of her skeleton, leg-length shortening, leg angulation, tilting of the pelvis, all affecting every part of her body and life for the remainder of her days. The defense noted that plaintiff ran on her school track team, participated fully in her physical education classes, no doctor placed any restrictions on her activities, and she never took any pain medications.Inside Information:Defendants had a chance to settle the case before the damages verdict for $4,500,000 (the limits of their liability insurance policy less 10%) but they refused.The jury also awarded future medical expenses in the sum of $1,000,000. Plaintiff s doctor, though, testified that the cost of specific future medical expenses would be about $110,000. The appellate court ordered a reduction of the future medical expenses award to $115,000.Damages News, Updates and Analysis of Personal Injury, Wrongful Death and Medical Malpractice AwardsThe Law Firm of John M. Hochfelder6 Shadow Tree LaneBriarcliff Manor, NY 10510Phone: 914-686-0900Fax: 914-686-9048Email: jh@HochfelderDamagesConsulting.comAbout the AuthorJohn Hochfelder is a renowned traumatic injury trial lawyer who founded and maintained a dynamic plaintiff s personal injury law practice in all of the courts in the New York City metropolitan area as well as Westchester County and the entire Hudson Valley region.

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