Court Orders Pain and Suffering Monetary Damages Increase in Scar Case 

 By John Hochfelder

 

On February 7, 2006, Roccio Rojas, a healthy 20 year old, donated her left kidney to her father, in a procedure known as a laparoscopic donor nephrectomy.
During the surgery, it was discovered that Roccio’s aorta had been lacerated – it was bleeding out extensively and Roccio was about to die.


Ms. Rojas’s abdominal cavity had to be opened, a subcostal incision was made and a hand placed inside to hold pressure. Then, a vascular surgeon had to be found immediately in order to suture the rupturing aorta.
Luckily, in an adjoining operating room there was a vascular surgeon – Danielle Bajakian, M.D.  -  who sutured the half centimeter aortic tear in an open emergency procedure that saved the life of Ms. Rojas.
Ms. Rojas had a much more difficult recovery than she and her doctors had planned, following a major open surgery instead of a laparoscopy and with a large abdominal scar and several lifetime medical concerns that she would not have had if her kidney surgery had gone as planned. So, she sued.
In the lawsuit, Ms. Rojas claimed that her urological surgeon had negligently cut her aorta which led to the need for the major open vascular surgery (to repair the aorta) and its consequences.On April 22, 2010, a Manhattan jury agreed and awarded pain and sufferng damages in the sum of $350,000 (150,000 past – 4 years, $200,000 future – 56 years).
Both sides appealed:

• defendant argued that there was no basis for liability becasue the aortic injury is a recognized and acceptable risk of the kidney procedure and that the injury likely occurred spontaneously as a result of a failed staple
• plaintiff argued that the evidence showed the aorta was cut with scissors, an unacceptable mistake and that the monetary damages awarded for the future were inadequate

In Rojas v. Palese (1st Dept. 2012), the liability verdict against the urological surgeon has been affirmed and the future damages award has been increased from $200,000 to $350,000.
As a result of the appellate court decision, plaintiff’s pain and suffering award is now $500,000 ($150,000 past, $350,000 future).
 Here are additional details of plaintiff’s injuries that are not in the decision:

• 16 centimeter long, 2 centimeter wide, one-half inch raised hypertrophic scar near the bellybutton that is permanent, painful and embarrassing
• 50% narrowing of the aorta (because the artery wall is incorporated into the stitching) requiring lifetime monitoring  for the development of renal vascular hypertension (high blood pressure due to narrowing of the arteries carrying blood to the kidneys) and claudication (pain caused by too little blood flow)
• likelihood of future surgical intervention in the aorta

Hypertrophic scars, often resulting from thermal injuries, are hard, raised, tender and itchy. Here is an example of such a scar under someone’s arm.







  

Typical laparoscopic nephrectomies do not leave hypertrophic scars. Instead, they leave small planned incisions that usually fade, like this:



Inside Information:

• Ms. Rojas received six units of blood, replacing two-thirds of her blood volume, so that she did not die while her aorta was being repaired.
• Dr. Bajakian, the vascular surgeon, was originally named a defendant in the case but the suit against her was discontinued before trial and she was ultimately called as a witness by plaintiff’s attorneys.

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POSTED BY ATTORNEY RENE G. GARCIA

Some of our clients have suffered these kinds of injuries due to a serious accident or malpractice. The Garcia Law Firm, P.C. was able to successfully handle these types of cases. For a free consultation please call us at 1-866- SCAFFOLD or 212-725-1313.