Wednesday, October 30, 2013

Court Affirms Increase in Pain and Suffering Verdict for Leg and Wrist Injuries By John Hochfelder on October 27, 2013 Posted in Leg Injuries, Wrist Injuries On August 2, 2007, Anthony Deandino, then a 25 year old ironworker, was a passenger on a motorcycle being driven by his friend Robert Munsen at the intersection of Colonial Road and 78th Street in Brooklyn. Proceeding through the intersection, they were struck by a city bus that failed to stop at a stop sign. Both were ejected from the motorcycle and landed in the street. Deandino was rushed by ambulance to a nearby hospital where he was diagnosed with several broken bones. In his ensuing lawsuit, plaintiff’s motion for summary judgment was granted; the owner of the bus (the city’s transit authority) and its driver were held fully liable for the accident. The matter then proceeded to a trial on damages only. On November 10, 2010, a Kings County jury awarded Deandino pain and suffering damages in the sum of $750,000 ($250,000 past – 3 years, $500,000 future – 46 years). Both sides appealed – plaintiff claimed that the award was inadequate and the defendant claimed that it was excessive. In Deandino v. New York City Transit Authority (2d Dept. 2013), the appeals court ruled that the past pain and suffering award should be increased by $150,000 so that the total for pain and suffering was set at $900,000 ($400,000 past, $500,000 future). Here are the injury details: displaced left femur fracture – requiring open reduction internal fixation surgery with a metal rod, extending from the hip to the knee, implanted and secured with metal screws comminuted, displaced radius and ulna fractures – requiring open reduction internal fixation surgery with two metal pates and 15 screws dislocation of left elbow that ruptured connecting ligaments avulsion of left fingertips requiring surgical repair fractured ribs and pulmonary contusion post-traumatic stress disorder (PTSD) Deandino was hospitalized for three weeks immediately following accident and underwent two years of outpatient physical therapy. Several medical witnesses testified for plaintiff, including his orthopedic surgeon Joseph Walsh, M.D., a physiatrist and a psychologist. They discussed the severity and permanence of plaintiff’s injuries (including weakness, atrophy and the likelihood of arthritis developing in both his leg and arm) as well as his inability to return to work, despite his stoic nature and refusal to complain of pain or disability. In addition to pain and suffering damages, the jury awarded Deandino about $1.7 Million for past and future loss of earnings (including lost pension, health insurance and annuity benefits); the appellate court, though, reduced that sum by $283,000 because the jury disregarded to that extent the testimony and evidence as to the actual amounts for past loss of earnings. The jury determined that plaintiff’s future work-life expectancy was 33 years. Finally, the jury also awarded (and the appellate court affirmed) $465,000 for future medical expenses (over plaintiff’s 46 year life expectancy). The defense denied the legitimacy of all of plaintiff’s future economic damages, insisting that he had recovered from his injuries. Inside Information: Defendant was sanctioned $2,500 for its failure to timely produce a system safety report that included objective data downloaded from the bus’s event recorder showing the bus had passed through the stop sign at 11 m.p.h and continued at full throttle to the point of impact where it had reached 20 m.p.h. It was after production of the event data report on December 24, 2008, that the defendants conceded liability and a judge granted plaintiff’s motion for summary judgment. Despite the severity of his injuries, Deandino began looking for work within months of the accident and in early 2008 he landed a job as an ironworker, albeit on light duty. After about six months, though he was unable to continue and never again returned to any type of employment. Before the accident, Deandino had taken and scored well on the examination to become a New York City fire fighter; in the summer of 2009, he took and passed the FDNY’s grueling candidate physical ability test and, before trial, ran in four 5K road races. It was the FDNY’s examining surgeon that the appellate court mentioned as an expert who was precluded from testifying at the trial. The defense wanted his testimony that when he examined Deandino on August 26, 2008, he was physically capable of being a fireman; however, the plaintiff argued, successfully, that the failure until trial was underway to give notice of this intended expert witness was prejudicial and unfair. Plaintiff’s expert psychologist believed that plaintiff was delusional or at least highly unrealistic as to his ability to return to work. Plaintiff’s attorney agreed stating that it was the jury’s job to protect plaintiff from himself by awarding him enough loss of earnings damages so that he would not need to try to return to work. In open court, the attorney turned to plaintiff and stated: “You will never be a firefighter.” Plaintiff had been examined before trial by an orthopedic surgeon for the defense (Raz Winiarsky, M.D.) and a neurologist (Maria De Jesus, M.D.); however, only the neurologist was called as an expert witness and plaintiff was granted a so-called missing witness charge as to Dr. Winiarsky permitting the jury to regard negatively the failure to call him as a witness. In closing arguments, plaintiff’s attorney asked the jury to award $3,500,000 for past pain and suffering; he did not request a specific amount for the future. Prior to trial, plaintiff’s settlement demand was $5,000,000; defendants’ offer to settle was $350,000. Deandino’s motorcycle driver, Robert Munsen, died from the injuries he sustained in the accident. Munsen was a close friend and as Deandino was on the street screaming in pain, immobilized by his own injuries, he was unable to offer any aid to Munsen who was several feet away, also on the street, unconscious and dying. Tweet Like Email LinkedIn Comments Tags: Femur Fracture, Post-Traumatic Stress Disorder, Radius, Ulna Damage Awards Affirmed in Wrongful Death Medical Malpractice Case By John Hochfelder on October 22, 2013 Posted in Medical Malpractice, Wrongful Death Hermine Browne, a 58 year old nurse’s aide, was experiencing excruciating stomach pain when she went to see her internist on February 17, 2001. The doctor diagnosed her with irritable bowel syndrome and prescribed medication. Unfortunately, the pain continued (and the same diagnosis was made) through March of 2002 when a sonogram and then a CT scan showed a large cancerous tumor, so extensive that only part could be surgically removed. After several years of treatment for the cancer, the tumor led to Ms. Browne’s death in September 2007. After a four week trial in 2011, a Bronx County jury found that the doctor departed from accepted medical practice by failing to timely order a CT scan in February 2001, thereby resulting in growth of the tumor to the point where it was unresectable and only palliative debulking of the tumor could be performed in May 2002. The jury awarded damages in the sum of $880,000 as follows: pre-death pain and suffering – $325,000 economic loss to children – $555,000 The defendant’s post-trial motion to vacate the jury verdict was granted. The trial judge found that the liability finding was against the weight of the evidence, in particular that the testimony of plaintiff’s expert oncologist was prejudicial and unfair and that plaintiff’s presentation of certain evidence resulted in undue surprise and unfairly prejudiced the defendant. On appeal, in Rose v. Conte, (1st Dept. 2013), the jury verdict has been reinstated in plaintiff’s favor, both as to liability and as to damages. The pre-death pain and suffering verdict was based upon the decedent’s six years of pain, fear and emotional stress prior to her passing. During that time, Ms. Browne – a previously independent, hard-working woman who was the matriarch of a large family - could no longer work, was constantly going to doctors, on extensive medication and in unremitting pain. The defense did not challenge the amount of this award. As to economic damages, Ms. Browne was survived by five adult children ranging in ages from 34 to 42 years. They claimed that their mother’s death resulted in economic damages to them from the loss of her nurture, care and guidance. So-called loss of guidance damages are typically awarded to young children; however, New York law (see Gonzalez v. New York City Housing Authority – Court of Appeals, 1991) provides that there is no prohibition to the award of loss of guidance wrongful death damages to adult children (even when they are financially independent) so long as there is adequate proof that the decedent provided more than occasional services to the children such as shelter, meals, advice and guidance. In this case, one of the surviving children, Richard Donalds (46 years old at the time of trial), was handicapped, having been, as plaintiff’s counsel put it, “grossly deformed [hands, feet and torso] as a result of Thalidomide taken by his mother during her pregnancy.” Richard had lived with his mother who provided extensive services to him including helping him get up when he fell due to his deformed feet, helping him to dress himself (he could not use his hands), cooking, shopping, driving and cleaning his clothes. The jury awarded – and the appellate court affirmed – $500,000 for Richard’s economic loss. Inside Information: Before she died, Ms. Browne had started the lawsuit and trial was underway. She died in the middle of that trial in 2007. A mistrial was declared and a new trial ensued four years later. In closing arguments, plaintiff’s counsel asked the jury to award $1,500,000 for pre-death pain and suffering. The economic loss awards to the adult children included the $500,000 for Richard discussed above plus $25,000 to the son who took over caring for Richard and $10,000 each to the other three siblings in consideration of the spiritual guidance provided to each of them by the decedent. Tweet Like Email LinkedIn 1 Comment Tags: Loss of Guidance, Pre-Death Pain and Suffering Carpenter’s Back Injury Pain and Suffering Verdict Affirmed on Appeal By John Hochfelder on September 30, 2013 Posted in Back Injuries On August 24, 2006, Eric Berrios was a union carpenter working on an 80-story condominium construction project at 735 Avenue of the Americas in Manhattan. He was on the second floor deck, on top of a scaffold, cutting wood and laying out plywood when he fell 20 feet below onto a concrete slab. Berrios was helped up by co-workers who took him by taxi to a local hospital where he complained of pain in his back. His pain continued, he was unable to return to work and Berrios sued the project owner under Labor Law 241(6). He was granted summary judgment on the issue of liability and the matter proceeded to a trial on damages only in February 2011. The jury awarded plaintiff pain and suffering damages in the sum of $600,000 ($375,000 past – five years, $225,000 future – three years). The award has been affirmed in Berrios v. 735 Avenue of the Americas, LLC (1st Dept. 2013). Here are the details of plaintiff’s injuries: treated and released from emergency room with crutches and pain medication next sought medical care about two weeks later at a clinic where he was prescribed a doughnut to sit on to alleviate pain and a back brace treated for two years at clinic with physical therapy three times a week trigger point injections once a month; epidural steroid injections herniated discs at C-5 and C-6 bulging discs in lower back at L3-L5 displaced right coccyx fracture at the sacrococcygeal joint line compression fracture at L-1 Berrios testified that he was in constant pain and could not: sit for long periods of time turn his head without pain in his neck return to recreational football or basketball lift heavy objects Plaintiff’s treating physiatrist, Ali Guy, M.D., testified that plaintiff’s injures were permanent and progressive with traumatic arthritis of the spine already present. The defense medical experts, orthopedic surgeon Maurice Carter, M.D. and neurologist Jerome Block, M.D., testified that plaintiff had healed well and had no residual injuries from the accident and he could still be employed as a carpenter (in “less arduous tasks”). In addition to pain and suffering damages, the jury awarded (and the appellate court affirmed) damages for loss of earnings in the sum of $600,000 ($225,000 past – five years, $375,000 future – three years). Plaintiff had been earning about $75,000 a year before the accident and sought over $5 million for future lost earnings based on his inability to work for the next 28 years. He argued, unsuccessfully, that the jury’s earnings award was irrational because it amounted to $45,000 per year until 2011 and then $125,000 per year thereafter. The jurors apparently agreed with defense arguments that plaintiff could return to work as a carpenter in certain capacities and would be able to earn significant wages over the years. Inside Information: The defendant disputed plaintiff’s claim that he fell over 20 feet onto concrete. There was a statement in the emergency room record that Berrios fell feet first onto a wooden box and then fell onto the concrete floor on his back. Plaintiff denied making such a statement but the trial judge allowed this evidence in and the appellate court affirmed agreeing with the defense that the hospital record statement was “germane to his [plaintiff's] medical diagnosis or treatment.” Experts in vocational rehabilitation and economics testified for plaintiff and opined that his future medical expenses related to the accident would exceed $1.3 million based on present rates. The jury awarded nothing at all for future medical expenses, apparently agreeing with the defense experts that plaintiff had recovered well and needed no medical treatment in the future related to the accident. Past medical expenses (i.e., from the date of the accident to the date of trial) were agreed upon in the sum of $32,131. In his summation, defense counsel argued that Berrios should be awarded at most $20,000 for one year of pain and suffering. Tweet Like Email LinkedIn Comments Tags: "loss of earnings", Bulging Disc, Coccyx, Herniated Disc, Post-Traumatic Arthritis Construction Worker’s Hand Injury Pain and Suffering Award Affirmed By John Hochfelder on September 15, 2013 Posted in Hand Injuries On September 15, 2006, Leonel Pinto was carrying boxes of ceramic tiles down an interior staircase at a construction site in the Bronx. He was a laborer working for a subcontractor on the project at which seven residential buildings were being built on Doris Street. After more than seven hours of carrying boxes from the street into the basement, the 29 year old Pinto slipped (the stairs were wet from rainwater being tracked in) and a box fell on and crushed his hand. The accident site at 1432 Doris Avenue, Bronx, NY: Pinto sustained a significant hand injury, was taken to a nearby hospital and underwent surgery the next day. A lawsuit was brought against the property owner and several related entities claiming they negligently maintained the property and breached their duty to keep it reasonably safe. Following the trial judge’s instruction (full jury charge here) that the jury had to decide if there was “sufficient time before the accident to correct the condition or take other reasonable precautions,” a verdict was rendered in plaintiff’s favor on July 6, 2012. The jurors then turned to the issue of damages and awarded Pinto $600,000 for his pain and suffering ($200,000 past – six years , $400,000 future – 40 years). The defense appealed, arguing that the award was excessive; however, in Pinto v. Gormally (1st Dept. 2013), the award has been affirmed. Here are the details of plaintiff’s injuries: compound mid-shaft fracture of the proximal phalanx of the left (non-dominant) middle finger next day surgery: open reduction internal fixation surgery with three K-wires drilled into the bone; extensor tendon repair on 10/24/06: removal of the K-wires series of epidural steroid and trigger point injections on 12/7/08: cervical radiofrequency sympathectomy on 5/13/09: myoblock (type B) Botox injection on 8/3/09: surgery to remove scar tissue and release contractures of the joints of the left middle finger as well as the left ring and pinky fingers continued severe sharp burning pain, decreased range of motion and clawing resulting in inability to use left hand for activities of daily living K-Wires in Finger Plaintiff’s treating doctor, Salvatore Lenzo, M.D. and the defense expert, Martin Posner, M.D., are both highly respected hand surgeons on staff at the world renowned Hospital for Joint Diseases. Plaintiff also treated with a pain management physician, Gary Thomas, M.D. There were significant disagreements as to the exact nature of plaintiff’s injuries as well as his need for future treatment: Plaintiff’s doctor testified that his injuries from the accident included nerve and hyperextension injuries to his third and fourth fingers (the ring and pinky fingers) leading to joint arthropathy, tendon contractures and complex regional pain syndrome; whereas the defense expert opined that the only injury was a fracture of the middle finger and that the 2009 surgery was not needed. Plaintiff’s doctor testified that he required significant future medical treatment for his injuries including regular radio frequency sympathectomies, epidural, trigger point and Botox injections and physical therapy. The defense expert testified that none of the future procedures would be required. Inside Information: Dr. Thomas had previously testified as an expert for the defense law firm on about three occasions; he’d never before testified for plaintiff’s counsel although he’d been retained by plaintiff’s counsel about 20 times over 15 years to examine clients. Here is the transcript of the testimony of Dr. Thomas in this case. Dr. Posner testified that plaintiff was “trying to deceive me” when he (plaintiff) claimed in a pre-trial medical examination that he could not extend his fingers and that plaintiff’s claim of total disability is “incredible.” In summation, plaintiff’s counsel asked the jury to award $700,000 for past pain and suffering plus another $700,000 for the future. Defense counsel stated “you can’t trust his [plaintiff's] claims on pain and suffering because, as Dr. Posner said, he hasn’t been telling the truth” and he argued that if his client were to be found at fault then damages should be limited simply to the fractured middle finger for the past only with no award for future pain and suffering or future medical expenses. The jury’s $40,000 award for future medical expenses was not challenged on appeal. There was no evidence as to plaintiff’s inability to work as he had withdrawn all claims for lost earnings. Tweet Like Email LinkedIn Comments Tags: Complex Regional Pain Syndrome, K-wires, Phalanges, Radiofrequency, Steroid Injections, Tendon Repair Construction Worker’s Back Injury Pain and Suffering Award Affirmed on Appeal By John Hochfelder on August 27, 2013 Posted in Back Injuries On December 4, 2007, Greg Leszczynski was employed as part of a construction crew digging trenches and installing sewer lines in Grahamsville, New York. He was standing in a trench about nine feet deep where pipe was being laid when a frozen lump of stone, about 18 inches in diameter weighing about 60 pounds, came out of a loader bucket, bounced into the trench and then struck him in the head. Worker in Trench Leszczynski, then 31 years old, was injured and he sued three parties in Sullivan County Supreme Court – the Town of Neversink (the street site owner), the project’s engineering firm (dismissed prior to trial) and IMS Safety, Inc. (the project’s safety consultant). The town settled during the liability phase of the trial and IMS was then found vicariously liable under Labor Law 241(6) due to the negligence of plaintiff’s employer (the general contractor that hired IMS) . At a separate trial on damages, a new jury awarded plaintiff pain and suffering damages in the sum of $175,000 ($25,000 past – four years, $150,000 future - 35 years). On appeal in Leszczynski v. Town of Neversink (3d Dept. 2013), the $175,000 award has been affirmed despite plaintiff’s claim that it was inadequate. Here are the injury details: herniated disc at L5-S1 three epidural steroid injections in 2008 L5 hemilaminectomy (surgical removal of one of the two laminae in a vertebra) and foraminotomy (surgical decompression of nerve roots) on May 25, 2009 back pain causing inability to lift or bend, do chores around the house, cut grass or shovel snow, or engage in previously enjoyed recreational activities such as swimming, snowboarding and weightlifting concussion with severe headaches, continuing through trial Defense counsel argued, persuasively, that plaintiff’s injuries were not as severe as he claimed, his complaints were subjective, he had significant prior related injuries and he had recovered quite well by the time of trial. In support of these claims and to attack plaintiff’s credibility, testimony was adduced and arguments were made by the defense as follows: plaintiff continued to work on the day of and for the two days after the accident before seeking any medical treatment for back pain and headaches within a few months of the accident plaintiff resumed working at a pre-trial deposition, plaintiff testified that the only treatment he ever had for any pre-existing back condition was one emergency room visit 10 years earlier; at trial, though, a chiropractor testified that he treated plaintiff 37 times for lower back pain in 1998 there was no causal relationship between the trauma and the headaches (according to a defense medical expert), an MRI of plaintiff’s brain was normal and headaches are the “quintessential subjective complaints” plaintiff’s herniated disc was treated successfully with surgery which was “minimally invasive,” he was able return to his former employment and had no permanent injury to his back Inside Information: Plaintiff settled with the Town of Neversink for $25,000. In closing arguments, plaintiff’s counsel asked the jury to award $300,000 for past pain and suffering plus $500,000 for the future; defense counsel suggested $150,000 for the past plus $25,000 for the future. The appellate court affirmed awards for loss of earnings in the sums of of $143,700.50 (past) and $100,000 (future – 20 years). After the accident, plaintiff left his heavy duty laborer job for a less demanding one operating a 65 ton loader in a quarry. Tweet Like Email LinkedIn Comments Tags: Concussion, Foraminotomy, Laminectomy Appellate Court Reduces Foot Injury Pain and Suffering Award By John Hochfelder on August 13, 2013 Posted in Foot Injuries, Medical Malpractice On February 8, 2008, Carol Sokol underwent podiatric surgery for bunions on both of her feet. Her doctor, a podiatrist, performed an Austin bunionectomy, a surgical procedure to excise, or remove, a bunion (a bony overgrowth in the foot that causes the big toe to curve outward). Here is a short video showing an Austin bunionectomy with screw fixation, similar to the procedure Ms. Sokol underwent. Unfortunately, Ms. Sokol’s condition was not improved – after surgery her big toe was unable to land on the ground, her second toe curled up like a claw and she could not walk normally. She sued, claiming malpractice. The case went to trial in Manhattan in April 2012 and the jury found that the doctor had been negligent. Ms. Sokol, then 57 years old, was awarded pain and suffering damages in the sum of $900,000 ($300,000 past – four years, $600,000 future – 25 years). The trial judge denied the defendant’s post-trial motion to set aside the future pain and suffering award as excessive The defendant then appealed, again arguing that the damages award was excessive. In Sokol v. Lazar (1st Dept. 2013), the future damages award has been reduced by $150,000 and now stands at $450,000. The past damages award was not challenged with the result that the total award approved by the appellate court is $750,000. Here are the injury details: two additional surgeries required by new physician (to correct the problem with the big toe not landing) development of intractable plantar keratosis – calluses with a deep seated core that are often quite painful to pressure development of cylindrical callus requiring excision permanent foot pain and discomfort limiting exercise (cannot run) and walking continued need for silicone sleeve to pad toes likelihood of arthritic joint in the future causing more pain and requiring surgery to fuse the fifth metatarsal phalangeal joint Inside Information: The defense failed to call an expert so was unable to refute the claims of plaintiff’s expert, Sloan Gordon, D.P.M., as to prognosis. In summations, plaintiff’s attorney asked the jury to award $250,000 for past damages and at least $500,000 for future damages; defense counsel made no suggestions as to damages until the appeal when he argued that the future damages award should be reduced to $100,000. Tweet Like Email LinkedIn Comments Tags: Bunionectomy Court Affirms Pain and Suffering Award Despite Pre-Existing Injury By John Hochfelder on August 4, 2013 Posted in Back Injuries On October 18, 2000, Olga Ortiz slipped on a concrete step on the top of the staircase leading to the Number 6 train at the 28th Street subway station at Lexington Avenue in Manhattan. Ms. Ortiz, a nurse’s aide then 59 years old, fell down the entire staircase and landed at the bottom. A police officer arrived and called for an ambulance. Paramedics placed Ortiz on a stretcher and transported her to Bellevue Hospital where she received minor treatment before being released that day. Claiming that she sustained a permanent back injury due to a broken and unsafe step that was missing a piece of cement, Ortiz sued the New York City Transit Authority (the subway station operator). The defendant, however, contended that the stairway was safe and properly maintained and that the accident was caused by plaintiff’s failure to watch her steps. In September 2011, the jury found that the transit authority was liable for the accident and awarded pain and suffering damages in the sum of $400,000 ($300,000 past – 11 years, $100,000 future – 10 years). On appeal in Ortiz v. New York City Transit Authority (1st Dept. 2013), the defendant’s claim that the award was excessive has been rejected and the $400,000 damage award has been affirmed. Here are the injury details: herniated disc at L3-4 bruised coccyx lumbar radiculopathy epidural steroid injections and 12 months of physical therapy and chiropractic treatment permanent back and coccyx pain inability to bend, walk, sit or lift without severe pain The defense argued that plaintiff’s pain and limitations were due to a prior incident when, two years earlier, she sustained two herniated discs in her back attempting to lift a 200 pound patient at a nursing home. She’d undergone extensive chiropractic treatment and had continuing pain that was managed with injections up to and including the day of (but prior to) her subway fall. Plaintiff’s treating orthopedic surgeon (first seen by her two weeks after she fell) acknowledged that she had prior problems with her back but he noted that her prior injury had not significantly interrupted her ability to work. He testified that her condition was “significantly exacerbated” by the subway stairs accident which, he said, caused compression of her disc which in turn caused it to expand into the nerve and led to radiating pain down her leg. He concluded that she was completely disabled. Plaintiff’s doctor had suggested that plaintiff be seen by a spinal surgeon “for possible excision or removal of the coccyx” and he opined that plaintiff will need continued care and that laminectomy and lumbar fusion surgery was “[certainly] … an option.” Inside Information: Before trial, plaintiff would have accepted a settlement of $50,000; however, the defendant’s offer was only $1,000. In summation, plaintiff’s counsel asked for $1,000,000. After examining plaintiff but before trial, defendant’s medical expert died. Over plaintiff’s objection, a new orthopedic surgeon was allowed to examine her; however, the defense did not call the new doctor to testify (his report concluded that plaintiff suffered from a residual disability) and the judge gave a so-called missing witness charge to the jury. At the time of trial, Ms. Ortiz had not had any treatment for the injuries alleged in the subway accident for three years (though she’d returned to her orthopedic surgeon shortly before trial for consultation and review). Tweet Like Email LinkedIn Comments Tags: Coccyx, Herniated Disc, Laminectomy, Lumbar Fusion Appellate Court Upholds $2,100,000 Pain and Suffering Award in Medical Malpractice Case

On October 19, 2007, Kelly Butterfield underwent a unilateral oophorectomy -  laparascopic surgery to remove one of her ovaries.

Ms. Butterfield, a 46 year old unemployed woman from Syracuse, was advised by her doctor that the surgery would be routine, take about an hour and she’d be discharged to home on the same day.
Unfortunately, none of that was to transpire; the surgery was complicated by the presence of extensive adhesions, it took over four hours and her bowel was perforated during the surgery requiring a nearly two month hospital admission and several additional surgeries.

Butterfield sued the hospital and her surgeon claiming that they failed to properly perform the oophorectomy, the procedure should have been converted to an open surgery and their post-operative care was negligent.
On February 20, 2012, after a two week trial, an Onondaga County jury agreed that there was medical negligence and awarded plaintiff pain and suffering damages in the sum of $360,000 ($300,000 past – four and a half years, $60,000 future – 30 years).
Additional damages awarded included loss of consortium damages for Ms. Butterfield’s husband in the sum of $100,000 (past only) and $164,306 for future medical expenses (an amount stipulated to by the parties).
After trial, at the Syracuse-Louisville college basketball game on March 3, 2012, plaintiff’s lawyer and the jury foreman met by coincidence. The juror told the lawyer that the jury had intended to award plaintiff $1,800,000 for 30 years of future pain and suffering (not $60,000 – the figure they filled in on the verdict sheet).
The crowd at the Carrier Dome in Syracuse on 3/3/12:

Following post-trial motions, the presiding judge ordered the verdict to be corrected to reflect the jury’s actual intent to award $1,800,000 in future pain and suffering damages.
The defendants appealed but the verdict has now been upheld in Butterfield v. Caputo (4th Dept. 2013).
Here are the injury details:
  • intra-operative bowel perforations with leak of gastrointestinal matter and development of sepsis
  • emergency surgery for perforated bowel plus additional surgeries including ileostomy, reversal of ileostomy, reconstruction of abdominal wall and hernia repair
  • seven day coma inducement
  • 50 day initial hospital admission with two weeks in ICU and five weeks unable to get out of bed
  • home care assistance from visiting nurses, daily for almost two years for wound cleaning and IV therapy
  • colostomy bag for four months
  • several additional hospitalizations between 2008 and 2010 for bowel obstructions, each time requiring IV therapy for three days, supplemental fluids and consumption of nothing but ice chips
  • inability to resume sexual relations with her husband
  • extensive medication regime
  • extensive abdominal scarring
  • constant pain with burning sensation in bowels
Inside Information:
  • Ms. Butterfield had a long-standing history of abdominal problems and had undergone laparoscopic surgery for lysis of adhesions in 1994. Additionally, she had other pre-existing medical issues including chronic pain complaints, fibromyalgia and a significant pain medication regime.
  • Defense counsel argued on appeal (unsuccessfully) that by the time of trial plaintiff’s life “had returned to largely where she had been” before the initial surgery and, therefore, $60,000 for 30 years of future pain and suffering was reasonable. Plaintiff’s counsel argued that her life is now “reduced to being ruled by bathrooms and medications.”
  • The jury found that both the hospital and the surgeon were negligent but that only the hospital’s negligence was a substantial factor in causing plaintiff’s injuries. The appeals court upheld that finding.
  • Before trial, plaintiff had demanded $1,500,000 to settle; the defense made no offfer.
  • Trial lasted 10 days and the jurors (five men, one woman) deliberated for seven hours.

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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.


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