Topic: Auto/Pedestrian – Fracture Of Tibial Plateau – Three Arthroscopic Surgeries Including Procedures For Insertion And Removal Of Hardware – Permanent Pain And Difficulties Walking Up Stairs Suffered By Plaintiff Who Lives In Walk-Up Apartment – Damages

Result: $ 287,164 verdict

Title: Motor Vehicle Negligence

State: New York

County: New York County

Facts: Liability was stipulated prior to trial in this case in which the defendant cab company could not locate its driver. The plaintiff pedestrian in his late 30′s, was crossing in the crosswalk when he was allegedly struck by the defendant cab driver as he was backing up.

The plaintiff contended that he sustained a fracture of the tibial plateau. The plaintiff’s orthopedist maintained that the plaintiff underwent arthroscopic surgery in which hardware was inserted, a subsequent arthroscopic procedure to remove the hardware and a third arthroscopic surgery to excise scar tissue. The plaintiff contended that he will permanently suffer significant pain and difficulties climbing to his walk-up apartment.

The defendant contended that the plaintiff failed to mitigate his damages by bearing weight approximately four weeks earlier than recommended by his physician. The treating physician contended that the severity of the fracture was such that the plaintiff would have suffered the same residuals irrespective of this factor.

The jury awarded $ 287,164, including $ 125,000 for past patina and suffering, $ 10,000 for past lost earnings, $ 26,164, for past medical expenses, $ 26,000 for future medical expenses and $ 100,000 for future pain and suffering. The court set aside the award for past medial bills, holding that the plaintiff may still obtain no fault benefits, which are the subject of arbitration. The defendant’s other post trial motions were denied and the defendant has filed an appeal.

TOPIC: PREMISES LIABILITY

TITLE: Landlord Found Liable For Tenant’s Injuries Sustained In Apartment Fire; Suit Alleged Locked Window Gate over Fire Escape and Lack of Smoke Detectors

RESULT: Jury verdict for the plaintiff, in the amount of $1,504,000. Award consisted of $400,000 for past pain and suffering, $500,000 for future pain and suffering, $39,000 for past loss of earnings, $312,000 for future loss of earnings, $103,000 for past medical expenses, and $150,000 for future medical expenses.

INJURY: Plaintiff suffered second and third degree burns over 46% of his body. He underwent six skin graft procedures and will require two more in the future. He sustained burns to his throat cartilage, which required placement of a permanent tracheotomy tube. The chemical burns to his lungs resulted in a substantial reduction in pulmonary capacity.

SUMMARY: A 30-year-old auto mechanic arrived home from work at approximately 11:00 p.m. He placed plaintains and sausages in a pot of water on a low flame, and went into his bedroom to watch a videotape while the food cooked. After some time, he became aware that the apartment was filling with smoke. When plaintiff went to the kitchen, he saw the top of the stove engulfed in flames. He first tried calling for help from the living room window, the only window that could be opened. He then went back to the kitchen and made five-six attempts to put out the fire with a five-gallon bucket filled with water drawn from the bathroom. Plaintiff then became overcome with smoke.

Suit was brought against the landlord. The subject apartment had been sublet by plaintiff from the tenant of record, without the landlord’s authority. Following an inspection by NYC Housing Preservation & Development Code Enforcement, defendant was cited for not providing a smoke detector in the unit and for permitting the tenant to have an unlawful, locked window gate in the kitchen, over the fire escape window. The violations were never certified as corrected. Members of the fire department testified that there was no smoke detector in the apartment, and that there was no question that the gate was locked at the time of the fire.

The managing agent and superin-tendent of the landlord testified that smoke detectors were installed when the tenant moved in, and reinstalled on two occasions after the violations. The tenant of record testified that she had two smoke detectors and that her gate was not kept locked.

The defense further contended that plaintiff was intoxicated at the time of the fire because hospital tests taken at 2:57 a.m. showed a blood alcohol level of .078. Plaintiff’s physician testified that this was a trivial amount, and that immediately after the burn the body becomes hypo-metabolic, therefore, from the time of the burn to the time of the test, little metabolism of alcohol would have occurred. The testimony of the defendant’s toxicologist — stating that the level was higher when extrapolated to the time of the fire — was disputed.

SETTLEMENT NEGOTIATIONS: Demand: $675,000. Offer: $300,000.

Topic: Failure of defendant cardiologist to timely authorize and administer thrombolytic therapy upon presentation to e.r. With infarct – heightened cardiac damage

Result: $ 532,000 Verdict

Title: Medical Malpractice Review; Medical Malpractice by Specialty; Cardiology

County: Nassau

Facts: The female plaintiff cardiac patient, age 39 at the time, had suffered an anterior wall myocardial infarction three months earlier and had also undergone an angioplasty with stenting two months prior to this incident. The plaintiff contended that when she presented to the hospital with chest pain at 5:47 a.m. and an EKG was diagnostic of a myocardial infarction, the defendant cardiologist, who was contacted by the attending E.R. physician who wanted to administer the thrombolytic agent Retavase, negligently insisted that such medication should not commence until he arrived at the hospital which was situated less than four miles from his home. The defendant also requested that the resident fax the EKG results to him, but the evidence reflected that the defendant’s fax machine was not functioning. The plaintiff maintained that although IV nitroglycerin and morphine are generally given with Retavase, the E.R. physician instituted nitroglycerin and morphine only because of the lack of authorization for administering Retavase. The plaintiff contended that this course produced no effect. The plaintiff further maintained that the defendant did not promptly arrive at the hospital and that the staff had to phone the defendant two more times before he finally arrived at the E.R. at 7:00 p.m. Testimony revealed that the medication should be administered within 30 minutes of the event, according to guidelines of the American College of Cardiology that were in effect at that time, in 1999. The plaintiff contended that the delay occasioned additional significant and permanent cardiac damage.

The plaintiff had presented shortly after the angioplasty with complaints of chest pain that led to a diagnosis of angina rather than an infarct. The defendant contended that in view of this history and potential severe side effects of Retavase, he acted reasonably in advising the E.R. physician to refrain from commencing the medication until he arrived. The defendant also denied that the plaintiff suffered additional cardiac damage and contended that an angiography supported this position. The plaintiff countered that an echocardiogram showed a significant deterioration of ventricular function as measured by ejection fraction, and contended that in this case involving reduced movement of the posterior wall, measurement by echocardiogram is more accurate.

The jury found for the plaintiff and awarded $ 532,000, including $ 400,000 for past pain and suffering and $ 132,000 for future pain and suffering.