Coleman v. N.Y. Vanity & Manufacturing Company, et al.
Wayne Coleman, a glazier, was driving on the eastbound Throg’s Neck Bridge when he encountered a construction vehicle executing a U-turn. Coleman stopped to allow the vehicle to pass in front of him and was struck from behind by the N.Y. Vanity & Manufacturing vehicle. The impact was one of several that occurred during the five vehicle crash. Coleman suffered injuries to his back and neck, including herniated discs; fracture T11, and a laminectomy and fusion of his spine’s L3-4, L4-5, and L5-S1 levels, with the implantation of stabilizing hardware. His back and neck continues to remain painful, with pain radiating to his right leg; he experiences recurrent spasms; he suffers residual erectile dysfunction; he suffers from chronic residual headaches; he retains a limp and requires the use of a cane and a back brace. The matter was mediated between the parties and the insurer of NY Vanity & Manufacturing Company agreed to pay $1.64 million, and the remaining defendants agreed to pay $20,000.
MEDIATED SETTLEMENT: $1,660,000.00
Costentino v. Sera
Plaintiff, who was stopped in traffic, was rear-ended by the defendant, causing serious injuries including partial disc tears at the C4-C5; C5-C6; C6-C7 and C7-T1 levels with cord impingement and radiculopathy; partial disc tears at the L4-L5; L5-S1 levels with central and bilateral neural canal stenosis and a tear of the anterior cruciate ligament (ACL), as well as quadriceps tendonitis. Those injuries necessitated cervical spinal fusion and caging. The defendant conceded liability prior to trial, and the case settled for the combined policy limits of $600,000, prior to a trial.
DeFeo v. Civitano
Plaintiff, a motorcyclist, was injured when the Defendant, who was driving a large SUV, suddenly and without warning, made an abrupt left hand turn directly in front of him. The force of the impact was so severe, that plaintiff’s motorcycle was completely destroyed, while the plaintiff himself was catapulted high into the air, before crashing onto the ground.
As a consequence of the impact, the plaintiff suffered, among other injuries, a fractured left tibia and fibula, which required an open reduction with internal fixation. The plaintiff underwent further surgery involving irrigation and debridement of the open wound of the left tibia and fibula. In addition to the leg and hip injuries, he underwent an open reduction and fixation with K wires as a result of multiple fractures and dislocations of his left wrist. Prior to trial the defendants settled for the policy limits of one million dollars, with one policy paying $100,000.00 and another $900,000.
Garner v. Hayes, et al
On July 8, 2003, plaintiff, a 48-year-old licensed practical nurse, was driving on Palmer Avenue, near its intersection at Petersville Road, in New Rochelle. When she reached the intersection, she stopped at a red traffic signal and her vehicle stalled. Before she could resume travel, her car’s rear end was struck by a trailing minivan that was being driven by the defendant, which occurred a moment before or after the defendant’s minivan was struck by a trailing car being driven by another defendant. The plaintiff filed suit against the drivers and owners of both vehicles, claiming the drivers were negligent and that the owners of the vehicle were vicariously liable for the actions of the drivers.
Through mediation, the parties agreed on a pretrial settlement of $850,000 – $500,000 from the insurer of the minivan driver and owner, and $350,000 from the insurer of the owner and driver of the second vehicle.
Gibbons v. Torio and Juarez
On March 15, 2007, the plaintiff, a waitress in her mid 20s, was driving on the Hutchinson River Parkway, near its interchange at the Cross County Parkway, in Bronxville. When she reached the interchange, and traveled a sharp curve she veered onto the Cross County Parkway. Her vehicle struck the rear end of a disabled vehicle that was being operated by one of the defendants. The plaintiff claimed that she sustained injuries to her knee and neck.
Following her injuries, the plaintiff filed a claim against both the operator and the owner of the vehicle, claiming the operator was negligent in his operation of the vehicle and the owner was negligent in her entrustment of the vehicle to the operator.
Interestingly, plaintiff’s counsel noted that the accident occurred while the defendant operator, a mechanic, was test driving the other defendant’s vehicle for a car service company. Plaintiff claimed that the vehicle stalled three times during the test drive. She further claimed that, after each of the first two stalls, the defendant operator telephoned his supervisor and was instructed to have the vehicle towed, if it were endangering other motorists.
The plaintiff sought damages for past medical expenses, damages for past pain and suffering, and damages for future pain and suffering. She was ultimately awarded $300,000 in mediation.
Martos v. Goldoff
Parent’s Found to Have Impliedly Consented to Their 14 Year Old Son’s Use of Their Car, When Their Son Took Their Car Without Their Permission, Yet They Failed to Report the Car as Being Stolen to the Police.
This is regarded as one of the leading cases in New York involving the application of the “Permissive Use Doctrine”, of an automobile. It was tried before a Westchester County jury before and during the immediate aftermath of the tragic 9/11 terrorist attack.
The driver of the defendant’s late model luxury Lexis was the son of the vehicle’s owner, Mr. and Mrs. Goldoff. Despite Mr and Mrs. Goldoff’s explicit instructions to their son for him never to drive their car, he did. The juvenile son disobeyed his parent’s instructions, and took the keys out of his father’s jacket without his father’s knowledge. On the day of the accident, the driver, the Goldoff’s 14 year-old son, went through a red light at breakneck speed and crashed into the side of the plaintiff’s car, crushing the plaintiff’s femur which required surgical repair. Fortunately, he had no residuals and no lost income.
Although no one disputed that the child negligently drove the car, the real issue in the case was whether his parents, and therefore, whether their insurance carrier, was accountable for the loss under the doctrine of “implied consent”. The parents claimed that their child drove their car without their express or implied consent, and that they therefore were not responsible for the plaintiff’s injuries. As a consequence, th defendant took a “no pay” position and the matter proceeded to trial.
At trial, the plaintiff proved that the son had been driving his parents’ car , allegedly without their permission, but with their knowledge, since he was 11 years of age. He had taken the car that night, once again, without their permission and the parents had a pretty good idea of where he was and where he could be found. Although the parents could have reported the car as being “stolen” to the local police, which would have resulted in the car being located and their son being apprehended, Mr and Mrs. Goldoff chose not to do so, since they feared that Child Protective Services would be involved, and they wanted to avoid family court intervention in their private family matters. They did this, however knowing full well that every day that this car was in a juvenile’s possession, he was a threat and menace to himself and anyone in his path of travel.
Based upon these set of facts, the jury concluded that by not reporting the car as being stolen to the police, the parents and car owners had impliedly consented to their child’s unlawful use of the car.
After a verdict for the plaintiff on liability, the defendant offered $10,000. Plaintiff rejected the offer. The jury returned a verdict of $195,000.
Monahan v. Reynolds
Soft Tissue Injury, with one Bulging Disc Results in Westchester County Jury Verdict of $103,333.00.
Plaintiff’s vehicle stopped in traffic on Rt. 287 when he was struck in the rear by defendant’s car. Plaintiff suffered bulging lumbar disc at L5-S1, radiculopathy at L-5. There was no thecal sac or nerve root involvement. The defendant’s made no offer thinking that his case would be dismissed. The jury awarded $103,333 for one bulged disc.
O’Neill v. Garcia
Soft Tissue Injury, with Bulging & Herniated Discs, Results in $350,000 Verdict: One of the Highest Reported Verdicts In Westchester County For This Type Of Injury.
In this “soft tissue” automobile accident case, in which the plaintiff, a nurse, was side-swiped by the defendant in a parking lot, she sustained “soft tissue injuries”, consisting of bulging and herniated discs in her neck and back, which she contended prevented her from performing her duties as a nurse and from caring for her children.
The medical testimony at trial showed that she sustained a concussion, a herniation at L4-5 and at L5-S1, along with traumatically induced bulging discs, also referred to as “partial disc tears”, at C3-C4, C4-C5, L1-L2, L2-L3 and L3-L4. Both she and her treating physician also testified that she suffered from radiculopathy, that is, nerve damage that causes pain not only in the local area where the disc is situated, but also in places further away, such as in the arms, legs, hands, feet, fingers and toes.
To treat these injuries and to address her constant pain, O’Neill testified that she received extensive treatment, including acupuncture, chiropractic manipulation, physical therapy, and the administration of 13 pain killing trigger point injections. O’Neill’s treating physician testified that her condition is permanent, that it will get worse as she gets older and that she will require a lifetime course of trigger pont injections. At the time of trial, O’Neill was 28 years old.
The defendant contended that O’Neill did not sustain a “serious injury” under the law; that all of her injuries were short lived and resolved within weeks after the accident, and that any continuing complaints of pain were solely due to her pregnancy and nothing else. The jury agreed with O’Neill, and it awarded her $350,000 for her pain and suffering; among the highest reported verdicts for this type of injury in Westchester County.
We have chosen to include this verdict not only because of the extraordinary result, but also because we believe it bears eloquent witness to the lengths that Gash & Associates, P.C., will do to accomplish justice for our clients. In this case, the defendant had an insurance policy providing only the minimal limits of insurance coverage under the law of New York: a mere $25,000.00. We demanded the full policy limits so that we could pursue our client’s claim against her own insurance carrier for “under insured” insurance benefits under the law, but the defendant refused to tender the policy contrary to the advice of the Court. Despite the fact that the costs of trying this case approached the policy limits, we would not yield, as other law firms might, to the best business decision, and settle the case for less, and just “move on”. We felt that our client deserved more, and we were determined to get it for her.
The matter is now under appeal, and we will be pursuing a “bad faith” claim against the defendant’s insurance carrier for its refusal to tender the policy limits, when it could have. In this bad faith claim, we will contend that the insurance carrier, as a result of placing its interests above those of its insured, to whom it owes a “fiduciary duty” it is responsible for the entire verdict.
Salant v. Grubman
Gash & Associates, P.C., was one of a few law firms who represented plaintiffs in the infamous case where Lizzie Grubman backed her Mercedes-Benz SUV into a crowd injuring fourteen young ladies in the Hamptons. Mr. Gash, protective of his clients’ feelings and rights, was quoted by the Daily News concerning the media frenzy occasioned by the case. These cases were settled for substantial sums of money without trial, although the specific settlement amounts were stipulated as confidential among the parties.
Toriello v. Jeraci Food Distributors
Plaintiff, while making left hand turn, was struck by defendant’s van which ran Stop sign. A witness to accident was brought to New York from Las Vegas (where he had since moved), to testify on behalf of plaintiff. Plaintiff’s injuries included herniations at C5-6 and C6-7 intervertebral discs, impingement of the associated nerve roots, along with superimposed bulges of her C5-6 and C6-7 discs, protrusions of her L4-5 and L5-S1 discs, and impingement of the associated areas of the thecal sac. The case settled during trial for $175,000.
Vandenberge v. Mahler
Soft Tissue Injury, consisting of Bulging & Herniated Discs with Lost Earnings, Results in 3 Million Dollar Jury Award for past and Future Pain and Suffering, Loss of Consortium and Past and Future Lost Earnings.
In this soft tissue automobile accident case, in which the plaintiff sustained bulging and herniated discs to his neck and back, with cervical radiculopathy confirmed by EMG’s, for which cervical surgery was indicated but never done, as testified to by his treating neurologist, the jury award to the plaintiff was $3,000,000.00. Because, at the time of his injury, the plaintiff was a union foreman in a construction company, whose earnings and job benefits were substantial, his inability to return to the same position he enjoyed before he was hurt, impacted heavily on his ability to work, to earn money, and to remain in the work force for as long as he would have been able to, had he not been injured. This resulted in a large past and future loss of earnings, as well as a diminished work life expectancy.
Because the plaintiff’s injuries also impacted on his ability to be both a husband and a father, and because they diminished the contributions that he could make in both capacities, his wife also had a claim for loss of consortium, or “spousal services.”
The defendant and his experts disputed that the plaintiff suffered from any disc pathology, and that if he did, it was merely degenerative (age related), that it pre-dated the accident, and that his injuries had nothing to do with the fact that the defendant rear ended the plaintiff’s car at great speed. The defendant further argued, and their experts testified at trial, that because it was their opinion that he was not injured, there was no reason why he could not continue to perform hard, manual labor, as he had prior to his injury.
The jury disagreed with the defendant. In one of the highest verdicts at that time for a similar injury, in this venue in a non surgical case for soft tissue injuries, the jury unanimously awarded the plaintiff three million dollars. The breakdown for this award was: $250,000 past pain and suffering; $750,000 for future pain and suffering; $200,000 for past lost earnings; $1.65 for future lost earnings, $150,000 for lost services to his wife.
Injuries On Property Cases
Abrams v. Baltic Estates
Plaintiff slipped on a ribbon of black ice on defendant’s parking lot. Plaintiff proved that melting snow piled by defendant plowing company with owner’s consent on a steeply slopped hill, caused a run-off onto the defendant’s parking lot and froze over night. Plaintiff suffered a tear of his left, non-dominant shoulder’s rotator cuff. This matter was settled during trial for a substantial sum, but the client has requested that the amount not be disclosed.
Flaherty v. American Turners of New York
Plaintiff trip and fell due to accumulated ice at a social club owned and operated by the defendant. Plaintiff suffered chip fractures to the knee requiring total knee replacement. The defendant offered $35,000 during trial. After two weeks of trial the jury returned a verdict in the amount of $210,000.
Jose Carrero v. PMD Properties LLC and Nicola Dedaj / Nicola Dedaj v. Osvaldo Mercado, Bronx County Supreme Court.
Plaintiff, Who Slipped and Fell in a Snowy Parking Lot, and Sustained Comminuted Fracture of the Distal Radius of His Wrist and Ulna, Which Required Open Reduction, Internal Fixation, a Plate and Screws and Resulted in Post Traumatic Arthritis, Carpal Tunnel Syndrome and Neuropathy was Awarded $1,649,000 for Pain and Suffering. This case was spotlighted in the Verdict Search’s publication “Verdict Search’s Top NY Verdicts of 2010″, which was distributed by “The New York Law Journal”.
On March 4, 2006, at approximately 3:45 p.m., plaintiff Jose Carrero, 55, unemployed, along with his boyfriend, Osvaldo Mercado, were returning back to their apartment at 178 East 205th Street in the Bronx, in a vehicle operated and owned by Carrero. They pulled into a nearby private parking lot, on Villa Avenue, where they had an assigned space. Mercado stopped his car on the lot’s entrance ramp, as he claimed he was having trouble steering up the icy and snowy surface, caused by a storm a few days before. Carrero exited the car, while Mercado claimed he put the emergency break on, and after taking a few steps, slipped and fell on the ramp. Carrero claimed injuries to his right wrist.
Carrero sued PMD Properties, the owning entity of his building, and Nicola Dedaj, the owner of the parking lot. He alleged the defendants were negligent for failing to safely maintain the property, causing a dangerous condition.
The plaintiff’s injuries consisted of a comminuted fracture of the distal radius and ulna; traumatic arthritis, open reduction; internal fixation; plate; screws; physical therapy; steroid injection; posttraumatic carpal tunnel syndrome; neuropathy.
On March 21, 2006, Carrero underwent open reduction, internal fixation surgery on his wrist, with the insertion of a plate. He was hospitalized for three more days, and followed up with physical therapy from April to October of 2006.
Carrero claimed that the therapy was painful, and didn’t improve the condition of his wrist. He testified at trial that he still experiences residual pain, discomfort and reduced range of motion in his wrist, which has severely affected the use of his right hand. Over the next few years following the accident, he was diagnosed with post-traumatic arthritis and right median neuropathy-carpal tunnel syndrome. He claimed that he will require future arthroscopic surgery and further physical therapy. Carrero claimed that he has difficulty performing several daily activities, from getting dressed to walking his dog. He also claimed he could no longer cook, a favorite hobby of his, which he enjoyed at home as well as cooking for the homeless. Carrero asked the jury for $750,000 in damages for past pain and suffering, $950,000 for future pain and suffering, and up to $25,000 for future medical costs. Carrero’s past medical costs was stipulated at $24,000.
The defendants contended that Carrero was exaggerating his condition. That the fracture healed well, and that surgery went perfectly, and that Carrero’s treatment records from his orthopedist, were replete with entries regarding the fracture healing, excellent range of motion three months after surgery, x-rays one year post-surgery that demonstrated excellent results, lacking any mention of a joint space collapse, arthritis or scarring in the joint space.
Before the case was submitted to the jury and during deliberations, the offer was $250,000. The jury unanimously found Dedaj 100 percent liable for the accident, and Carrero was awarded a total of $1,649,000 for past and future medical costs and pain and suffering. The breakdown was, $24,000 past medical cost; $50,000 future medical cost; $225,000 past pain and suffering; $1,350,000 future pain and suffering making his total award $1,649,000. Because the plaintiff was a retired school teacher at the time of his injury, there was no claim for economic losses. The verdict was unanimous.
Kerzic and Fulford v. Holiday Inn
Premises liability case. Plaintiff was severely burned while attending a Bahamian Culture Show, in the Bahamas, when the Great Sabu blew fire out of his mouth, causing the stage to burst into flame due to a propane gas leak. The case was brought in the United States District Court for the District of New Jersey. The case settled prior to trial for $1,500,000.
Marquez v. City of Yonkers, et al
On November 17, 2005, the plaintiff, a young child, suffered severe injuries to his right leg after falling on a school playground. These injuries, which included a fracture of the right femur and subtrochanteric fracture of the right hip, required several operations and left the child with permanent scarring.
Following his injuries, the plaintiff’s mother filed suit against the school’s owner, the school’s operator and the company that installed the carpeting on the playground equipment, alleging that the plaintiff tripped when one of his feet became caught in a seam of the carpet that covered the playground’s surface. The plaintiff raised several claims, including that the carpet was not properly installed and that its seams had begun splitting some 12 months before the accident and the school’s owner and operator ignored the condition. The plaintiff further alleged that the company that installed the carpet had advised the remaining defendants that a rubberized surface was preferable to carpet and that the playground’s underlying concrete surface would have to be repaired prior to the installation of a carpet to prevent separation of the carpet’s seams – but they ignored the advice and simply opted to install carpet.
The court determined during summary judgment that the school’s owner and operator, and not the carpet installation company, were liable for the accident, and the parties reached a trial settlement of $350,000 for the victim.
Ramos v. City of New York
Slip and fall case at the Bronx County Housing Court. Plaintiff slipped and fell on water in corridor of Bronx Housing Court caused by a leaking water fountain. The defendant City of New York maintained that the water fountain was not defective and that the plaintiff fell due to her own carelessness. The City argued that they were not liable and that the plaintiff was not injured. The Plaintiff suffered from right L3-L5 radiculopathy, disc bulges at L3-L4, right lateral herniation and protrusions with bulge at L4-L5, left paracentral/lateral herniation and protrusions at L5-S1. The defendants took a no-pay position until halfway through trial when the case settled for $350,000.
Vasquez v. The City of New York
The plaintiff Juan Vasquez slipped, tripped and fell over a defective sidewalk on E. 170th Street in the Bronx, fracturing his tibia and fibula of his right leg requiring open reduction and internal fixation. The plaintiff was not employed at the time of the accident, nor at trial. Therefore, there was no lost wage claim. Mr. Gash tried the matter in Bronx Supreme Court and, after a six day trial, the jury returned a verdict in the sum of $1,200,000.
William Rosario v. The NYC School Construction Authority, the City of New York and Skanska USA Building, Inc.
Construction Worker’s Fall from Sidewalk Scaffold, Resulting in Tears to the Lateral and Medial Meniscus, Arthroscopic Surgery, the Development of Avascular Necrosis and a Knee Replacement, Results a Mediated Settlement of $925,000, and Total Payout of In Excess of 2 Million Dollars.
On Oct. 22, 2005, plaintiff William Rosario, 35, worked at a construction site that was located at 311 E. 82nd St., in Manhattan. During the course of the day, Rosario fell off of a scaffold that was being dismantled. He plummeted about 10 feet to the ground, and when he crashed to the ground, he injured his right knee.
He brought suit against the premises’ owner, the City of New York; the construction project’s manager, the New York City School Construction Authority; and the project’s general contractor, Skanska USA Building Inc. Rosario alleged that the defendants violated the New York State Labor Law in that they failed to provide him with a safe place to work.
More specifically, Rosario claimed that the accident occurred during rainy conditions. He contended that he and several co-workers had received a “rush” request to dismantle the scaffold. He acknowledged that he had received a safety harness that could have prevented his injuries, but he claimed that he had not been provided a secure point to which the harness could have been attached. Thus, the harness was totally useless.
Gash & Associates, Rosario’s counsel, in their motion for summary judgement, contended that the incident stemmed from an elevation-related hazard, as defined by Labor Law § 240(1), and that Rosario was not provided the proper, safe equipment required under the Statute. The New York County Supreme Court agreed, and it entered judgement on the issue of fault, against the defendants The matter then proceeded to damages.
Mr. Rosario’s injuries included a lateral meniscus tear; a medial meniscus tear; knee derangement; arthroscopy; necrosis; knee replacement; knee surgery; decreased range of motion. On Dec. 22, 2005, he underwent arthroscopic surgery that addressed the injuries of his right knee. He initially reported improvement, but the knee subsequently developed avascular necrosis of its medial femoral condyle, which is in the upper portion of the knee’s joint. This condition necessitated replacement of the knee.
Rosario claimed that he suffers permanent residual pain and a permanent residual reduction of the knee’s range of motion. He contended that the limitations prevent his resumption of manual labor. The defense’s expert orthopedist claimed that Rosario’s injuries predated the accident and were a result of obesity. The expert also opined that Rosario does not suffer a limitation of either knee’s range of motion.
The matter was settled before trial for the sum of $925,000, in a structured settlement that will result in a total payout to the plaintiff in excess of 2 million dollars.
Medical Malpractice Cases
Asheeka Allison Carty v. Montefiore Medical Center, et al.
In this medical malpractice case, the plaintiff, Asheeka Allison Carty was born prematurely. When she was two months of age, she was a patient in the Neonatal Intensive Care Unit (NICU) of defendant Montefiore Medical Center, when the defendants herein permitted and allowed 27 cc. of fluid to be infused subcutaneously into the left hand of the infant plaintiff.
As a result of the medical malpractice, the infant plaintiff suffered pain, skin sloughing, and blistering which caused an open wound requiring drainage. As a consequence, Asheeka had a 9 cm long scar across the dorsum of her left wrist that extended onto the medial and lateral aspects of her wrist. There was a 3 cm long distal extension of the scar along the radial wrist. There was a 1.7 cm long portion of the scar at its ulnar aspect which had hypertrophy with a maximum width of 4 mm and an elevation of approximately 1 mm.
The matter was settled before trial, with a confidentiality agreement regarding the amount of the settlement.
Bouldin v. Sound Shore Medical Center
Plaintiff was pregnant with her third child and it was her intention to limit her family to three children. She discussed with her doctor a tubal ligation after the birth of her child. Later, after repeat ultrasounds the fetus was diagnosed with bilateral hydronephrosis, a renal anomaly that is almost always fetal. After delivery by emergency Cesarean Section, the newborn died within 2 hours of delivery. Despite this, and with no written permission, the doctor performed a tubal ligation permanently sterilizing her. The case settled for $300,000.
Dipippo v. New York Orthopedics
In this medical malpractice case, the plaintiff had a workplace accident in which he fractured both the first and second toe of his left foot.
The basis of liability is that the defendant doctor, a Board Certified orthopedist, failed to appropriately diagnose the severity of the fracture. He indicated to Mr. Dipippo that the fracture could be successfully healed with conservative (non-surgical) treatment. The doctor failed to properly document and make necessary recommendations for surgery, but proceeded to treat the patient inappropriately with conservative treatment. The attempt at conservative treatment led to the delay in a timely surgical procedure, an open reduction with internal fixation (ORIF), that was the only appropriate procedure for this type and severity of injury. This delay caused the fracture to become more difficult for subsequent successful surgical intervention. Shortly after the first surgery was done by another doctor, it was evident from x-rays that healing was not progressing well, due to the changes in the bone matrix and scarring that had already occurred, making a successful union of the fracture more difficult. Therefore, a subsequent, and more complex surgery, had to be undertaken, which held the fracture fragments together through the toe’s joint making it more likely that Mr. Dipippo would suffer traumatic arthritis.
As a consequence, Mr. Dipippo suffers from a frozen great toe and the inability to “push off” when walking, and traumatic arthritis of the great toe, leading to his inability to do the same kind of physical things that he was capable of doing before. It has also made him physically unable to return to the same job he had before the accident, thereby diminishing his earning capacity.
Had the surgical procedure been done earlier, plaintiff’s expert opined, the outcome, within a reasonable degree of medical certainty, could have reasonably been expected to be complete healing of the fracture with no residual deficits.
The matter was settled during jury deliberations for a sum with a confidentiality agreement regarding the amount of the settlement.
Femia v. St. John’s Riverside Hospital
Plaintiff died from systemic infection in hospital after routine hernia repair. The defendants, who inserted a mesh hernia repair that led to infection and sepsis, killing the plaintiff within eight days of surgery, settled the case for $350,000 on the eve of trial.
Grizzell v. North Shore University Hospital-Manhasset, et al
On August 27, 2004, the decedent, a 78-year-old woman who was suffering a disease of her kidneys, underwent cardiac catheterization. During the minutes that followed the completion of the catheterization, the decedent experienced a sharp decline of her condition, and passed away several hours later.
The plaintiff (the decedent’s daughter), maintained that the decedent’s death was the result of a perforation of her external iliac artery, which occurred during the catheterization. She further contended that the defendants’ failure to diagnose the decedent was the proximate cause of death. Ultimately, the parties reached a trial settlement of $400,000 for the plaintiff.
Mezzetta v. Northern Westchester Medical Center
In this medical malpractice case, the defendant, a Board Certified neurosurgeon, diagnosed the plaintiff with Chiari I malformation. This is a genetic malformation of the bones in the back of the brain, which results in increased intra-cranial pressure and related symptoms. It can be treated in a variety of ways, the most dramatic of which is surgery in which part of the bone in the back of the brain is removed, along with and some of the vertebral bodies in the upper part of the neck are removed and fused.
As a result of this diagnosis, he persuaded the plaintiff to undergo neurosurgery of the brain, consisting of a suboccipital craniectomy with a C1 laminectomy and decompression with duraplasty. This surgery later failed (see below), which resulted in a more dramatic and involved salvage surgery, by a world famous brain surgeon who specializes in Chiari malformation surgery.
In connection with the initial surgery’s failure, as performed by the defendant neurosurgeon, the Plaintiff alleged that the surgery was completely unnecessary, since the plaintiff’s symptoms were consistent with increased intra-cranial pressure, following a spinal tap, which was done to see if his symptoms were due to Lyme’s disease. The plaintiff contended that as a result of that spinal tap, there was a continued loss of cerebral spinal fluid, which was the cause of his symptoms, and that in time, with additional blood patches, the condition would resolve. In fact, the plaintiff alleged that the plaintiff did not have Chiari I malformation, but rather, intracranial hypotension, which did not require any surgery.
Our contention was factually supported by the medical chart and the MRI, MRA, and CT scans of the brain, which shows that there never was a radiological diagnosis of Chiari I malformation. In fact, the MRI of the brain, taken at Northern Westchester Hospital, indicates an impression of intracranial hypotension.
The plaintiff’s expert opined, within a reasonable degree of medical certainty, that had the proper differential diagnosis been made, and had the plaintiff been treated for intracranial hypotension, rather than Chiari I malformation, then the cranial decompression surgery would have been unnecessary. Had this surgery not been done, it would not have failed, as it did, and the plaintiff would not have been required to undergo yet a second decompression surgery.
The plaintiff further contended that even if the diagnosis were correct, the procedure itself was fatally flawed. More particularly, the plaintiff contended that the surgeon wrongly chose to use a Duragen Patch for the duraplasty (a synthetic material), to patch the section of the back part of his brain where the bone was removed. The plaintiff contended that this material was fatally flawed for this type of intra-cranial surgery, and that in fact, there was a black box warning, which advised against the use of this product in this type of surgery.
In keeping with what the plaintiff contended were the risks for this type of surgery and for the material that was used, the surgery failed. The plaintiff was therefore required to undergo additional neurosurgery, which consisted of the following: with different surgeons at another medical institution, he underwent a posterior fossa revision consisting of drainage and excision of pseudomeningocele fat extending from the suboccipital to C5; enlargement of suboccipital craniectomy; widening of the narrow C1 laminectomy; C2 laminectomy; excision of partially absorbed Duragen duraplasty patch; untethering of tortuous left posterior inferior cerebellar artery from right dural suture line; microneurolysis of both posterior inferior cerebellar arteries; both cerebellar tonsils; both spinal accessory nerves, and vermis of the cerebellum; bipolar shrinkage of the cerebellar tonsils; expansile duraplasty employing autogenous pericranium; and creation of an extradural blood patch, at the North Shore University Hospital.
As a result of the negligence of these defendants, the plaintiff sustained severe and permanent personal and psychological injuries, including, but not limited to, ringing in both ears; vision changes including blurring of vision; photophobia; halos; light sensitivity; facial numbness; tremors of left arm; paresthesias in both hands and feet; neuropathy in hand and feet that is permanent; severe headaches with physical activity; neck weakness with range of motion deficits; persistent intermittent dizziness; neck tires easily; fatigues easily; reduced stamina; chronic pain syndrome mainly to neck and back of head; changes in sexual activity; changes in sense of identity and well-being; unable to perform prior work duties; anxiety due to trauma of injury and change in level of function; cannot lift heavy weights without experiencing severe headache; panic attacks requiring medical management; cervical spine instability; GI bleeding which required hospitalization and transfusion; portion of skull permanently removed; and that he will require spinal fusion in future to stabilize neck.
The matter was settled before trial for a sum which cannot be disclosed based upon a confidentiality agreement among the parties.
Paruolo v. Northern Westchester Medical Center
Plaintiff suffered 3rd degree burns to his elbow due to a defective operating room light while undergoing orthopedic elbow surgery. He required skin grafts and suffers from residual pain in both the area that was burned, the donor site, as well as scaring of his right arm. The skin graft of his arm, because he suffered third degree burns (the most serious burn one can sustain) lacks hair follicles, pigmentation and pores, and therefore it does not perspire and, as such, is susceptible to the development of cancer. The defendant’s took a no-pay position. Jury Verdict – $325,000. Plaintiff appealed and the Appellate Division of the Supreme Court raised the recovery to $450,000.
Rodriguez v. LAM Medical Associates, P.C., et. al.
For more than a year prior to December 26, 2003, the plaintiff was a patient of the defendant, LAM Medical Associates, P.C., d/b/a Servicios Medicos Hispano. The Medical Director of this facility was also a defendant. The doctor also was his primary care physician who directed most if not all of his medical care prior to his ganglion cyst surgery. As a patient of this medical facility, the plaintiff relied upon the facility and its Medical Director to prescribe and order the proper and necessary medical procedures to be performed by proper medial practitioners.
One year prior to the surgery complained of in this lawsuit, the plaintiff was previously diagnosed with an identical ganglion cyst, for which there was no surgery, nor was there any medical intervention of any kind. A year later, without any medical work-up, the defendant’s “rushed to surgery,” and removed what they claim was this cyst.
The medical records suggest that the person who performed this surgery was the defendant, (“Dr. X”), a doctor who admitted he was not licensed to practice medicine at the time of the surgery. These records include an operative note signed by Dr. X, a surgical consent form indicating that Dr. X was to perform the surgery, follow-up visits authored by the defendant Medical Director, suggesting that the plaintiff was to follow-up with Dr. X, but could not because the physician was not in that day.
During discovery, the defendants suggested that Dr. X impersonated another doctor who was associated with the medical facility and/or, that Dr. X did the surgery without anyone else knowing about it and, apparently alone and without assistance. The defendants further urged that “Dr. X” was only acting in the capacity as a “physicians assistant,” at defendant LAM’s facility, and that defendants had no clue that this surgery was performed, until after the event.
Suffice it to say, the surgery and its results were a complete disaster. It was alleged that the removal of a ganglion cyst was medically unnecessary; that the procedure was negligently performed, and that it was followed up and managed improperly. This unwarranted and botched procedure has required subsequent surgical repair, and that it has left the plaintiff with profound and severe nerve and sensory abnormalities, and chronic pain. The matter was settled before trial, for the sum of $600,000.00.
Products Liability Cases
Aubry v. Marcal Paper Mills, Inc.
Plaintiff was crushed to death by a defective industrial garbage compactor. The plaintiff had disengaged one turnbuckle hook on a large dumpster when the a compactor was turned on to crush cardboard. Because the container was unsecured on one side, it slid toward the plaintiff as the hydraulic ram of the compactor began to push and crush the contents of the container, causing the container to pin the deceased between a concrete wall and the container, causing his death. Case settled for $2.5 million dollars.
Mervin v. Voeller
Case involving a defective design of a cement mixer, in which there was no accessible kill switch, causing the plaintiff who activated the mixer to be unable to turn it off when he became caught in the mechanism. The plaintiff suffered serious crush injuries to both his legs. The action was brought in the New Jersey Superior Court, Essex County. During trial the action was settled for $1.5 million.
Webb v. American Honda, et al.
Plaintiff Thomas Webb, was using and operating a 1982 Honda 200 All Terrain Vehicle (ATV), with a friend who was also operating an ATV. He was operating the aforesaid ATV off of Bullet Hole Road in the Town of Putnam Valley, New York. The plaintiff was using the ATV in the manner in which it was designed, manufactured, distributed and sold, and in the manner in which it was intended to be used or which was within the reasonable contemplation of the defendants.
It was alleged that the ATV was defectively designed so that it was unstable and, upon ascending hills, or on rocky surfaces, was susceptible to flipping over, as it did in the instant case.
While operating the Honda ATV, plaintiff attempted to ascend a slope of app. 20 degrees, when the front wheel of the ATV raised off the ground, causing it to rollover, throwing the plaintiff to the ground and causing plaintiff to suffer serious and permanent injuries. As a consequence of the design failure of this three wheel “trike,” the plaintiff suffered a L2 Burst Fracture that necessitated the following surgical procedures: posterior spinal fusion L1, L2, L3; posterior instrumentation L1, L2, L3; decompression L1 to L2; and local autograft; and he has required additional medical care and treatment, and may require additional surgery.
The matter was settled before trial with a confidentiality agreement regarding the amount of the settlement.