Thursday, July 11, 2013

Laryngectomy

Definition

A laryngectomy is the partial or complete surgical removal of the voice box (larynx).

Purpose

Because of its location, the voice box, or larynx, plays a critical role in breathing, swallowing, and speaking. The larynx is located above the windpipe (trachea) and in front of the food pipe (esophagus). It contains two small bands of muscle called the vocal cords that close to prevent food from entering the lungs and vibrate to produce the voice. If cancer of the larynx develops, a laryngectomy is performed to remove tumors or cancerous tissue. In rare cases, the procedure may also be performed when the larynx is badly damaged by gunshot, automobile injuries, or other traumatic accidents.

Demographics

The American Cancer Society estimates that, in 2003, about 9,500 people in the United States will be found to have laryngeal cancer. Laryngeal cancer occurs 4.4 times more frequently in men than in women, although, like lung cancer, it is becoming increasingly common in women. Tobacco smoking is by far the greatest risk factor for laryngeal cancer. Others include alcohol abuse, radiation exposure, asbestos exposure, and genetic factors. In the United Kingdom, cancer of the larynx is quite rare, affecting under 3,000 people each year.

Description

Laryngectomies may be total or partial. In a total laryngectomy, the entire larynx is removed. If the cancer has spread to other surrounding structures in the neck, such as the lymph nodes, they are removed at the same time. If the tumor is small, a partial laryngectomy is performed, by which only a part of the larynx, usually one vocal chord, is removed. Partial laryngectomies are also often performed in conjunction with other cancer treatments, such as radiation therapy or chemotherapy.
During a laryngectomy, the surgeon removes the larynx through an incision in the neck. The procedure also requires the surgeon to perform a tracheotomy, because air can no longer flow into the lungs. He makes an artificial opening called a stoma in the front of the neck. The upper portion of the trachea is brought to the stoma and secured, making a permanent alternate way for air to get to the lungs. The connection between the throat and the esophagus is not normally affected, so after healing, the person whose larynx has been removed (called a laryngectomee) can eat normally.

Diagnosis/Preparation

A laryngectomy is performed after cancer of the larynx has been diagnosed by a series of tests that allow the otolaryngologist (a physician often called an ear, nose & throat or ENT specialist) to examine the throat and take tissue samples (biopsies) to confirm and stage the cancer. People need to be in good general health to undergo a laryngectomy, and will have standard pre-operative blood work and tests to make sure they are able to safely withstand the operation.
As with any surgical procedure, the patient is required to sign a consent form after the procedure is thoroughly explained. Blood and urine studies, along with chest x ray and EKG may be ordered as required. If a total laryngectomy is planned, the patient meets with a speech pathologist for discussion of post-operative expectations and support.

Aftercare

A person undergoing a laryngectomy spends several days in intensive care (ICU) and receives intravenous (IV) fluids and medication. As with any major surgery, blood pressure, pulse, and respiration are monitored regularly. The patient is encouraged to turn, cough, and deep-breathe to help mobilize secretions in the lungs. One or more drains are usually inserted in the neck to remove any fluids that collect. These drains are removed after several days.
It takes two to three weeks for the tissues of the throat to heal. During this time, the laryngectomee cannot swallow food and must receive nutrition through a tube inserted through the nose and down the throat into the stomach. Normal speech is also no longer possible and patients are instructed in alternate means of vocal communication by a speech pathologist.
When air is drawn in normally through the nose, it is warmed and moistened before it reaches the lungs. When air is drawn in through the stoma, it does not have the opportunity to be warmed and humidified. In order to keep the stoma from drying out and becoming crusty, laryngectomees are encouraged to breathe artificially humidified air. The stoma is usually covered with a light cloth to keep it clean and to keep unwanted particles from accidentally entering the lungs. Care of the stoma is extremely important, since it is the person's only way to get air to the lungs. After a laryngectomy, a health-care professional will teach the laryngectomee and his or her caregivers how to care for the stoma.
There are three main methods of vocalizing after a total laryngectomy. In esophageal speech, patients learn how to "swallow" air down into the esophagus and create sounds by releasing the air. Tracheoesophageal speech diverts air through a hole in the trachea made by the surgeon. The air then passes through an implanted artificial voice. The third method involves using a hand-held electronic device that translates vibrations into sounds. The choice of vocalization method depends on several factors including the age and health of the laryngectomee, and whether other parts of the mouth, such as the tongue, have also been removed ( glossectomy ).

Risks

Laryngectomy is often successful in curing early-stage cancers. However, it requires major lifestyle changes and there is a risk of severe psychological stress from unsuccessful adaptations. Laryngectomees must learn new ways of speaking, they must be constantly concerned about the care of their stoma. Serious problems can occur if water or other foreign material enters the lungs through an unprotected stoma. Also, women who undergo partial laryngectomy or who learn some types of artificial speech will have a deep voice similar to that of a man. For some women this presents psychological challenges. As with any major operation, there is a risk of infection. Infection is of particular concern to laryngectomees who have chosen to have a voice prosthesis implanted, and is one of the major reasons for having to remove the device.

Normal results

Ideally, removal of the larynx will remove all cancerous material. The person will recover from the operation, make lifestyle adjustments, and return to an active life.

Morbidity and mortality rates

For 2003, the American Cancer Society estimates a 40% mortality rate for laryngeal cancer, meaning that about 3,800 people will die of this disease.

Alternatives

There are two alternatives forms of treatment:
  • Radiation therapy, a treatment that uses high-energy rays (such as x rays) to kill or shrink cancer cells.
  • Chemotherapy, a treatment that uses drugs to kill cancer cells. Usually the drugs are given into a vein or by mouth. Once the drugs enter the bloodstream, they spread throughout the body to the cancer site.

WHO PERFORMS THE PROCEDURE AND WHERE IS IT PERFORMED?


A laryngectomy is usually performed by an otolaryngologist in a hospital operating room. In the case of trauma to the throat, the procedure may be performed by an emergency room physician.



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.

Descubrimiento: los circuitos de la médula espinal para agarrar

por Sam Maddox
Lunes 15 de abril de 2013

¿Cómo produce el sistema nervioso las señales necesarias para dar un paso, para estirarse? Hay una enorme cantidad de comprobantes que el movimiento no depende del nexo directo entre el cerebro y el músculo. El desplazamiento rítmico o con ciertas pautas de las extremidades (extender o flexionar el brazo, por ejemplo, o dar un paso) se produce dentro de la médula espinal, la cual distingue pistas de la información sensorial. La médula se presenta, entonces, como lo que los científicos denominan generadores centrales de pautas (central pattern generators, CPG), o sea, redes neurales que producen desplazamientos rítmicos tras actividad motora repetitiva. Las interneuronas son un tipo de microcircuito que coordina el ritmo y la pauta del CPG.
Esa es la teoría básica detrás del entrenamiento locomotor (mediante input sensorial del pie apoyado en la cinta rodante) y de estudios recientes de la estimulación epidural de la médula espinal junto con actividad, que llevan a la recuperación motora. La médula espinal no es un conjunto pasivo de nervios, sino que es inteligente. ¿Pero cómo lo logra? Si los científicos logran realmente entender cómo se comunica la médula, y si esas redes entre neuronas se pueden expandir o modificar, tendremos nuevas estrategias hacia la recuperación funcional tras una lesión o enfermedad.
Un ensayo reciente de un grupo de la Universidad Dalhousie en Nueva Escocia muestra cómo los últimos avances tecnológicos le permiten a los científicos identificar y estudiar subconjuntos de interneuronas de la médula espinal. “Los circuitos para agarrar: Interneuronas medulares dl3 intervienen en el control cutáneo de conducta motora” proviene del laboratorio de Robert Brownstone. El Dr. Brownstone es un neurocirujano en actividad que pasa la mayor parte de su tiempo en el laboratorio, usando nuevas herramientas como ratones mutantes, proteína verde fosforescente para marcar las células deseadas y microscopía avanzada para estudiar los resultados.
La Fundación Reeve fundó el laboratorio Brownstone hace casi diez años para enfrentar la ardua tarea de desenredar los circuitos medulares. Se estudió un subconjunto de neuronas medulares llamadas Hb9, las cuales aparentan estar involucradas en el generar un ritmo locomotor. (Dirijo su atención a una gran presentación visual por parte del laboratorio de Samuel Pfaff del Instituto Salk – un miembro del Consorcio Internacional de Investigaciones Reeve sobre la Médula Espinal y del laboratorio Thomas Jessell en Columbia – quien colaboró en el reciente ensayo de Brownstone. “Instantánea: Desarrollo de la Médula Espinal” muestra qué tan profundamente complicado es el circuito espinal. En una representación visual idealizada de un ratón recién nacido, las instantáneas muestran nueve días de desarrollo y “marcan los pasos genéticos secuenciales que generan diversidad neuronal dentro de un segmento espinal del ratón idealizado”).
Volviendo a Brownstone, esta vez él y su grupo se pusieron a estudiar otro subconjunto de interneuronas, llamadas dl3 (los nombres de las interneuronas derivan de las secuencias genéticas que las forman). El título del ensayo nos alerta de que se trata de la función manual. Según Brownstone, fue un golpe de suerte. Habían comenzado a probar cómo afectaban la locomoción los microcircuitos dl3. Sin embargo, vieron que un ratón con las células dl3 opacadas no podía colgarse del techo de la jaula. Del ensayo:
“Nos dispusimos a definir clases de interneuronas espinales involucradas en el control cutáneo del sujetar manualmente en ratones y para mostrar que las interneuronas dl3, dorsales… trasmiten input de aferentes cutáneos de bajo umbral [p.ej. información al agarrar] a las neuronas motoras. Los ratones en los cuales el output de las interneuronas dl3 fue desactivado exhibieron un déficit en tareas motoras que conllevan el input cutáneo aferente. Lo más llamativo, la capacidad para mantener la fuerza al agarrar en respuesta a una carga más alta se pierde tras el silenciar genéticamente el output de dl3”.
Un diario de Toronto catalogó al estudio de Brownstone como un avance significativo. Todavía no, desde el punto de vista clínico. A niveles profundos de neurociencia, es un descubrimiento importante. Sigue habiendo mucho trabajo por delante para persuadir los circuitos y ver los papeles que cumplen en el movimiento y la función. Los circuitos dl3 pueden llegar a ser algo crítico, cuando se los entienda mejor, y cuando los científicos descubran cómo dirigir los inputs precisos para quizá amplificar las señales.

http://www.spinalcordinjury-paralysis.org


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

26 Bones in the Foot – Recent Foot Fracture Verdicts Range from $75,000 to $2,200,000


 
There are 26 bones in the foot. So the variety of foot injuries is huge – from crush and calacaneous fractures to a 5th metatarsal (little toe) fracture. And thus the range for verdicts and settlements for pain and suffering in foot injury cases is quite wide.
In a recent case, Lentini v. NYC Transit Authority (Supreme Court, Bronx County; Index # 18020/06; 11/3/08), $2,200,000 was awarded recently by a jury for a 76 year old woman who sustained a complex crush injury to several bones in her foot requiring four orthopedic and reconstructive surgeries to salvage her foot.
By contrast, in Crooms v. Sauer Bros. Inc. (1st Dept. 2008), the appellate court ruled on 2/28/08 that $75,000 for a fractured metatarsal and thrombosis (the formation of a blood clot – in this case, from the cast) does not deviate from reasonable compensation where an unemployed former transit worker on disability made a full recovery.
Let’s take a look at those 26 bones in the foot.


One of the highest ever foot injury verdicts for pain and suffering upheld by the courts in New York (other than in amputation cases) was $3,000,000 in De La Cruz v. New York City Transit Authority (2d Dept., 2008) in which, while nominally involving fractures, the main injury to the 29 year old plaintiff was deep peroneal nerve entrapment  resulting in permanent unbearable pain, numbness and parasthesia in her foot. The nerve damage was caused when Ms. De La Cruz was struck by a bus and knocked to the ground upon which her foot was run over and crushed by the front wheel of the bus. The Queens County trial jury awarded her $15,000,000 for her pain and suffering. Upon a motion by the defendants, the trial judge reduced the award to $3,000,000 ($1,000,000 past and $2,000,000 future) and the appellate court upheld that determination.
Other significant cases for foot fracture pain and suffering include:
  • Lujwangana v. Ilchert (Supreme Court, Westchester County; Index # 16983/03; 4/6/06) – $1,150,000 pain and suffering ($600,000 past; $550,000 future) for a 23 year old college student in a car accident who sustained a traumatic dislocation of her foot that required three surgeries including a subtalar fusion.
  • Avens v. New York City Transit Authority (Supreme Court, New York County; Index # 402772/07; 6/4/08) – $950,000 pain and suffering verdict ($300,000 past; $650,000 future) for a 78 year old retiree who sustained a Lisfranc’s fracture of her foot in a bus accident, underwent open reduction internal fixation surgery.
  • Perez v. New York City Transit Authority (1st Dept., 2002) – $750,000 pain and suffering verdict upheld for a 42 year old unemployed man who fell over a defective subway vent and sustained a transverse fracture of the cuneiform of his foot and underwent six podiatric surgeries.
  • Roca v. Plaza Realty Management (Supreme Court, Westchester County; Index # 21756/06; 12/5/08) – $450,000 pain and suffering verdict for a 41 year old unemployed woman who fell in a parking lot and sustained a toe fracture with a neuropathy of her peroneal nerve that caused a foot drop that was resolved by the time of the trial 3 1/2 years after the accident.
http://www.newyorkinjurycasesblog.com


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.

Malpractice Lawsuit against New York Podiatrist Results in $3,000,000 Pain and Suffering Verdict for College Student; Trial Judge Orders Reduction to $1,000,000



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.               
 http://www.newyorkinjurycasesblog.com


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

Tuesday, July 9, 2013

Court Orders Substantial Increase in Pain and Suffering Damages for Construction Project Manager’s Ankle Injury


Court Orders Substantial Increase in Pain and Suffering Damages for Construction Project Manager’s Ankle Injury


On March 2, 2009, Mark Grinberg was a project manager for URS Corporation working at a construction site when he slipped and fell on a piece of plywood that was covered plastic.
The accident took place at the Central Park Police Station then under renovation:

A contractor, C&L Contracting Corp., had placed plastic covered plywood over holes it had excavated to protect concrete footings below from snow that was expected to fall. Unfortunately, there were no warning cones placed and snow fell and covered the whole area; Mr. Grinberg did not see the plastic before he fell.
Grinberg, then 60 years old, sustained severe ankle injuries and claimed in a lawsuit filed later that year that the plastic covered plywood constituted a dangerous condition for which C&L should be held liable. A Manhattan jury agreed, at least in part, when on June 11, 2012, it ruled that C&L was 45% liable for the accident due to its negligent maintenance of the site (and that plaintiff was 55% at fault for his own accident).
As to damages, there was testimony from orthopedic surgeons for both sides (as well as the plaintiff himself) and then the jury made an award for plaintiff’s pain and suffering damages in the sum of $110,000 ($75,000 past -  three years, $35,000 future – 17 years).
The trial judge denied plaintiff’s post-trial motion seeking an increase in the damage awards.
Plaintiff appealed, successfully, claiming that the award was inadequate.
The court, in Grinberg v. C&L Contracting Corp. (1st Dept. 2013), determined that the pain and suffering damages should be increased by $840,000. The award now stands at $950,000 ($500,000 past, $450,000 future).
As indicated in the court’s decision, plaintiff’s injuries included:
  • Pilon fracture (a severe ankle fracture also known as tibial plafond fracture) with multiple fragments and comminuted tibia fracture
  • Open reduction internal fixation surgery with eight inch long metal plate and screws
  • Four day hospital admission, two weeks home confinement and six weeks of intensive physical therapy
  • Unable to ambulate without walker or cane for three months
  • Second surgery to remove painful hardware one year post-accident
Pilon Fracture Pre-Surgery:

Pilon Fracture Post-Surgery:

As of the time of trial, Mr. Grinberg still experienced pain walking on uneven surfaces and difficulty walking for any length of time. Also, he was no longer able to swim or hike, passions he enjoyed previously.
The defendant argued that plaintiff had made an excellent recovery with virtually no residual limitations, especially in view of the facts that:
  • he’d returned to work full time four months after the accident (albeit as a sedentary scheduler, not as an active project manager able to walk construction sites) and
  • at the time of trial he walked without a limp or any assistance and took no prescription pain medications.
The jury was apparently impressed with the admission of plaintiff’s treating surgeon (Lon Weiner, M.D.) that Mr. Grinberg “made a very good” and “rather exceptional” recovery.
The appellate judges, though, were more impressed with the surgeon’s conclusion that nonetheless there was already post-traumatic arthritis present along with weak and inflamed tendons which conditions, he testified, will likely progress and result in future procedures (such as fusion or tendon surgery).
Inside Information:
  • The orthopedic surgeon who examined plaintiff for the defense (William Kulak, M.D.)  conceded that plaintiff had tendonitis and that he had no reason to doubt Dr. Weiner’s finding of arthritis (though he opined that plaintiff’s arthritic pain may not have been caused by the accident).
  • Before the five day trial, plaintiff would have accepted $495,000 to settle but the highest defense offer was $325,000.
  • Plaintiff’s counsel asked the jury for pain and suffering awards of $1,000,000 for the past plus $1,500,000 for the future; on appeal, he urged the court to upwardly modify the pain and suffering awards to $600,000 for the past and $450,000 for the future. Defense counsel urged the court to affirm the jury awards of $75,000 for the past and $35,000 for the future.
  • There was neither a lost income claim nor a future medical expense claim. The parties agreed that past medical expenses totaled $19,526.56.
  • In accordance with the liability split determined by the jury, plaintiff is to receive 45% of the damages award.


 http://www.newyorkinjurycasesblog.com


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.

Thursday, June 27, 2013

Appellate Court Affirms Trial Judge’s Increased Evaluation of Pain and Suffering Award in Laborer’s Case Alleging Ankle and Shoulder Injuries


On March 24, 2007, Fitzroy Burnett was working for the transit authority as part of a track removal and replacement project in the subway tunnel at the 155th Street station in Manhattan. Burnett was attempting to remove shoring stuck in the concrete skeletonized track. He slipped and fell backwards onto a track due to the presence of water that had been allowed to accumulate in his work area. As a result, the 51 year old struck his head, shoulder and back and was unable to get up due to severe ankle pain. Burnett was immediately taken by ambulance to the local hospital.

Burnett sued the City of New York arguing that, under Labor Law 241(6), it was liable as the owner of a construction site that was unsafe due to the accumulated water. A Manhattan jury concluded that each side was equally at fault for the accident and awarded pain and suffering damages – before apportionment – in the sum of $250,000 ($175,000 past – four years, $75,000 future – one year).
The defendant’s post-trial motion to have the verdict set aside on liability grounds was denied while the plaintiff’s cross-motion to increase the damages award  was granted. The judge determined that reasonable compensation for plaintiff’s pain and suffering was $300,000 ($210,000 past, $90,000 future), after the 50-50 liability split.
In Burnett v. City of New York (1st Dept. 2013), the appellate court affirmed the liability apportionment as well as the trial judge’s increase of the pain and suffering damages award from $250,000 pre-apportionment to $300,000 post-apportionment (plus $200,000 for economic damages). Thus, the actual amount awarded to plaintiff for all damages stands at $500,000.
At the hospital immediately after his accident, Burnett was diagnosed with a fractured ankle. He was treated and released with a soft cast.
Within three days of the accident, Burnett ended up in the hospital again after he suffered a protracted grand mal seizure at home. His treating neurologist testified that the seizure was caused by head trauma from the accident and his orthopedic surgeon testified that convulsive movements during the seizure seriously exacerbated a non-displaced shoulder fracture caused in the accident three days earlier. This testimony – unrebutted by any contrary medical testimony – was the major factor in the judicial determinations that the jury’s pain and suffering awards were inadequate.
Here, then, are the injury details:
  • lateral malleolus ankle fracture reduced via open reduction internal fixation with plates and screws
  • four part comminuted humerus fracture and shoulder dislocation requiring hemiarthoplastic prosthetic replacement surgery
  • shoulder labral and rotator cuff tears surgically repaired
  • unable to walk for several months without using a cane; as of trial, ankle still stiff and walking difficult
  • extensive physical therapy for ankle and shoulder for two years
  • as of trial, shoulder pain was constant with movement, range of motion was severely restricted and shoulder function was diminished by 50%
  • unable to enjoy cricket, play sports with his son or do his regular home handyman chores
  • post-traumatic seizure disorder requiring lifelong medications

 Inside Information:
  • Plaintiff’s wife claimed loss of consortium damages but the jury declined to award her any damages at all.
  • Plaintiff returned to work six months after the accident (in an office position as a timekeeper, not as a trackworker) at the same salary he’d been receiving before.
  • In effect, without explicitly so stating, the judges evaluated plaintiff’s total damages (pain and suffering plus economic) at $1,000,000. That is the only conclusion one can logically draw since the courts affirmed the 50-50 liability split and made clear that plaintiff was to receive after apportionment the sum of $500,000 for his damages.
  • It does not appear that there was any evidence to support the trial  judge’s decision to increase plaintiff’s past and future loss of earnings awards from $81,500 (one-half of the jury award of $163,000) to $197,000 (equal to $394,000 before apportionment) and  the appellate court did not even address that issue. Perhaps the appellate court simply agreed with the $500,000 overall  net award to plaintiff ordered by the trial judge and had no interest in separately discussing the different items of damages.
  • Since there was no evidentiary basis to affirm the trial judge’s increase of the economic damages awards, then one must conclude that the appellate court evaluated plaintiff’s pain and suffering damages at $919,000 ($1,000,000, representing the overall $500,000 award before apportionment, less $81,000, representingone-half of the past and future loss of earnings awards). If so, then $919,000 represents the minimum found by the court to be permissible for pain and suffering damages in this case.

 http://www.newyorkinjurycasesblog.com


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.

Wednesday, June 26, 2013

State Negligent in Causing Death but No Damages Allowed By John Hochfelder on June 22, 2013 Posted in Wrongful Death Cheryl Thurston lived in a group home facility operated by New York State’s Office for People with Developmental Disabilities. The residents at 8 Hilltop Drive in Pittsford all had developmental disabilities and each was subject to varying degrees of supervision with regard to things like mobility and safety. Ms. Thurston was mentally and physically handicapped and she had a seizure disorder. There was a written plan in effect prepared by the state that specified, among other things, that she required one on one supervision in the bathtub. Unfortunately, on August 30, 2008, Ms. Thurston was left completely unattended for several minutes sitting on the toilet while water was running for her bath. When her attendant returned to the room, she found Ms. Thurston unresponsive in the bathtub. Cheryl had suffered a seizure and then drowned. She was rushed to the hospital but never regained consciousness and was pronounced dead 14 hours later. Under New York law – Estates, Powers and Trusts Law Section 5-4.3 - these are the two claims that may be brought to recover damages for a person’s death: the survivorship claim, which belongs to the estate for the decedent’s pain and suffering prior to death and the wrongful death claim, which belongs to the distributees (i.e., the heirs) who have suffered a pecuniary loss by reason of the death In Thurston v. State of New York (Court of Claims 2013), both claims were dismissed by the judge before trial because (a) there was no proof that Ms. Thurston suffered after she sustained the seizure which rendered her unconscious and (b) she had not been employed and there was no one who incurred an economic loss due to her death. The judge, Renee Forgensi Minarik, was clearly troubled by her decision finding it “repugnant” that she had to enforce New York’s wrongful death law that “places no intrinsic value on human life.” She called upon the legislature “to address this fundamental injustice” in the statute. Inside Information: Claimant’s counsel appears to have been aware of the likely dismissal of the case when he argued on the motion that “the facts in this case cry out for an expansionist interpretation” of the statute. Any such expansion now awaits a successful appeal (unlikely) or action by the state legislature (sought repeatedly by advocates such as the New York State Trial Lawyers Association). Cheryl’s sister, Laurie, submitted an emotional affidavit attempting to convince the judge that there was an economic loss flowing from Cheryl’s death. Tweet Like Email LinkedIn Comments Tags: Conscious Pain and Suffering, drowning, Seizures Pain and Suffering Award Affirmed in Slip and Fall Case Despite Plaintiff’s Active Lifestyle



On September 2, 2009, Yvan Lemoine slipped and fell down an interior stairwell at the premises of Planet Fitness in Astoria.






Yvan, then 28 years old, had been walking from the second to the first floor when wet, just-mopped stairs caused him to slip and fall down 14 stairs.
He had intense pain in his back that radiated upward and an ambulance was called. A neck brace was applied by a paramedic and Yvan was placed on a stretcher and taken to the local hospital emergency room. He was treated and released within a few hours with a prescription for narcotic pain medication and advice to follow up with additional medical help within a day or two.
A lawsuit was commenced later in 2009 and it came to trial in Queens in November 2011. The jury returned a verdict of full liability against the premises owner and then awarded Yvan pain and suffering damages in the sum of $160,000 ($20,000 past – two years, $140,000 future – 35 years).
Despite the defendant’s argument that it was excessive, the verdict has been affirmed in Lemoine v. Steinway Fitness, LLC (2d Dept. 2013).
Here are the injury details (none of which were disclosed in the appellate court decision):
  • herniated disc at C5-C6 in contact with the ventral spinal cord
  • bulging discs at L4-L5 and L5-S1
  • unable to perform pre-accident activities without pain in neck, shoulders and back

Plaintiff’s medical treatment for his injuries consisted only of the emergency room visit and follow-up care with a chiropractor starting two days later and lasting for two years (tapering off to once a month in the second year).
The defense contended that plaintiff’s very active lifestyle after the accident belied his claim that he was seriously injured and in great pain. Prior to the accident, plaintiff had been extremely active – horseback riding, swimming, snowboarding and skiing. Afterwards, he was still able to engage in these activities, however, he testified that when he did so it was always in great pain.
Inside Information :
  • Plaintiff was employed as a chef prior to the accident and was unable to do his usual work for 30 days due to his injuries. In 2012, though, he competed on the reality television series Food Network Star and after 11 weeks, on July 12, 2012, Yvan was named a top three finalist.
  • Evidentiary issues arose regarding the admissibility of photographs and statements on plaintiff’s Facebook page; however, most of the information pre-dated the accident and the trial judge (upheld on appeal) excluded some as prejudicial, cumulative or because the defense failed to disclose its intention to use it. Plaintiff testified credibly (and charismatically) that he was trying to resume his life and activities even though he could do so only with much pain.
  • Plaintiff’s pre-trial settlement demand was $100,000 against no offer. In summation, his attorney asked the jury to award $75,000 for pain and suffering damages but the jury awarded plaintff $85,000 more than requested.

    http://www.newyorkinjurycasesblog.com


    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.