Articles Posted in Subdural Hematoma

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This case is being heard in the Supreme Court of the State of New York in Queens County. The defendants of the case have moved for an order to set aside a jury award of damages that was returned on the 22nd of June, 2005 and for a new trial to be granted in the interest of justice. The defendants contend that the amount of the awards issued by the jury are excessive and are not supported by the evidence that was provided in the case. The jury awarded the plaintiff $2,500,000 for past pain and suffering, $1,000,000 for future loss of earnings over the next 32 years and $12,500,000 over 52 years for future pain and suffering. There have been several conferences held in regard to this case, but no agreement could be reached and now it is up to the court to decide.

Case Background
The trial of this instant action was bifurcated. The liability portion of the trial was held on the seventh of June, 2005 and the jury returned with a verdict on the ninth of June finding that negligence of the defendants was the only cause of the accident in which the plaintiff was injured.

The Long Island plaintiff was coming home from work when she was hit by a bus when she crossed Putnam Avenue in Queens County. She fell backwards on the ground and sustained injuries to her back and to her neck. The most serious injury was to her right foot which was crushed by the wheel of the bus.

The damages portion of the trial was started on the 15th of June. The evidence provided in the case showed that as a result of the accident the skin and tendons of the plaintiff’s foot were badly damaged. She also suffered from fractures and displacements of the bones of the foot and toes.

At the time of the accident the plaintiff was taken by ambulance to the hospital where her wounds were cleaned. She was put under while surgery was performed and a cast put on her foot. She was released from the hospital two weeks later with her foot still in a cast.

The plaintiff stated during her testimony that she underwent physical therapy for her foot, but continues to have unbearable pain and numbness throughout her right foot. She ended up having another surgery to her foot to release the nerve from scar tissue that had developed around it.

Court Discussion and Decision
In order for the court to set aside a jury determination for damages the record must show that the verdict made by the jury could not have been reached by any fair interpretation of the evidence.

In this case, the plaintiff concedes that the amount awarded for pain and suffering is excessive and suggests a reduced award in the amount of $1,500,000 for past pain and suffering and $3,500,000 for future pain and suffering.

The court has reviewed similar cases and jury awards and determined that a fair settlement would be $1,000,000 for past pain and suffering and $2,000,000 for future pain and suffering. If the plaintiff does not agree to this the defendant will be granted a new trial to resolve the issue.
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This case is being heard in the Family Court of Queens County. This particular case involves alleged child abuse.

Case Background
On the ninth of June, 2004, the Administration for Children’s Services filed a petition alleging that the subject child had sustained a second degree burn on her elbow, a bruise over her eye, a laceration on her lip, a bite mark on her foot an numerous scars and scratch marks all over her body. The respondents, who are her biological parents, could offer no explanation as to how she sustained all of these injuries.

The child had been living in foster care for the previous three years and was returned to her parents in April of 2004. The original petition of abuse that resulted in the child being put in foster care was filed in February of 2001 and charged that the then 10 month old child had been burned on her right eye, below her right cheek, and across the back of her neck. The child also had cuts all over her body including inside her ears and on the bottoms of her feet. The respondents failed to provide a reasonable explanation for these injuries.

Fact Finding Hearing
In this instant case the fact finding hearing was held in October of 2004. The physician’s assistant that treated the child and the foster care agency worker both testified during the hearing.

The physician’s Manhattan assistant testified that the mother brought the child in for treatment for a burn on her right arm. She testified that the child had a two centimeter second degree burn around the area of her elbow. The physician’s assistant stated that the mother told her that the child had received the burn when she touched an electrical outlet. The mother also told the physician’s assistant that the child had just recently been returned to her after having been in foster care for child abuse. She went on to testify that the child was quite during the examination and very scared. She states that the child seemed to be malnourished and was very small and appeared to be younger than her stated age. She reported the case to the State Central Register because the explanation for the burn was inconsistent with the injury.

The caseworker for the child testified that the child was discharged to the respondents in May of 2004 and that she learned about the injuries when the father called her in June to report them. The father told her that the mother had grabbed the child’s arm to keep her from grabbing a blow dryer that was plugged in because the child’s hands were wet and she did not want her to get shocked.

Case Discussion and Decision
The inconsistencies of the stories from both parents it is quite clear that this child has been abused. The court finds that the respondents have been unsuccessful with the required parenting classes and finds that they are unlikely to ever be successful. The child along with the other children of the home is to be removed and placed in foster care.
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A personal injury action was commenced by plaintiff-mother. It was alleged that when she was 12 days pregnant she was injured when a police vehicle backed up and hit her as she was crossing a street and that she sustained a stress fracture of her right tibia as a result of the accident, and that the trauma and stress of the accident caused her to experience pregnancy complications resulting in an emergency cesarean section at 27 weeks.

Has the stress from the accident induce a placental abruption that would make the defendant liable?

A report from the pathologist who examined the post-delivery placenta and blood specimens indicated that an infection was the cause of the infant plaintiff’s premature delivery. Moreover, plaintiff-mother’s history of preexisting gynecological issues established prima facie that the infant’s premature birth was not due to placental abruption because of trauma from the accident (birth injury or birth injuryaccident).

While the medical records note that plaintiff mother experienced chronic vaginal bleeding during her pregnancy, the evidence establishes that preexisting gynecological issues were the cause of the bleeding. Further, the conditions associated with a placental abruption, such as clotting and affected hemoglobin levels, were not present in the medical record

As noted, the medical evidence did not substantiate the claim of placental abruption. Further, the prenatal care reports plaintiff mother’s physicians prepared did not note an accident, nor did they record any complaints from her regarding stress or anxiety arising from the accident. Indeed, the evidence demonstrated that plaintiff had preexisting high blood pressure, and that she took medication to control this condition before her infant’s birth.

Evidence, consisting of medical records, deposition testimony and expert medical affirmations, established prima facie entitlement to summary judgment dismissing plaintiffs’ claims as to the pregnancy complications, but not as to the leg injury.

The court rules that the plaintiff did raise a factual issue as to whether the accident caused the fracture of plaintiff’s right tibia. The Defendant City relied on the absence in the ambulance and emergency reports of any mention of a stress fracture or complaints about plaintiff’s leg. Given that plaintiff had recently become pregnant via in vitro methods, it is understandable that she may have focused on her pregnancy rather than on her leg. According to plaintiffs’ expert, it was also reasonable for plaintiff to wait to seek medical treatment for her leg in order to avoid an x-ray during her pregnancy. Moreover, documents from Lutheran Medical Center from as early as 8 November 2006, three weeks after the accident, indicate that plaintiff complained of pain in her right leg. At the time of her General Municipal Law hearing, three months after the accident, plaintiff complained that since the accident she had constant, severe pain in her right leg.

Furthermore, records from the Hospital dated 28 April 2007 indicate right lower extremity pain. X-rays from that date revealed what doctors in The Bronx and Brooklyn thought was most likely “a healing stress fracture.” On 3 May 2007, plaintiff visited a doctor, complaining of pain and swelling in her right leg that began two weeks after the accident. The doctor sent plaintiff for an MRI and referred her to another hospital for further care. The MRI from that Hospital revealed a lesion on plaintiff’s right tibia that a biopsy ultimately revealed to be “in keeping with a previous stress fracture.” On 16 October 2007, plaintiff went to the emergency room complaining of swelling in her right leg that had persisted for the past month. In December 2007, plaintiff underwent a surgical procedure on her right tibia, as it had become infected. According to plaintiffs’ expert, orthopedic surgeon, plaintiff reports that she still has pain in her leg, cannot kneel or run, has difficulty walking and cannot work in her job as a security guard. Plaintiff claims she had no other injury to her right leg after the accident.

Hence, the evidence adduced raised an issue of fact as to whether plaintiff sustained a “serious injury” of a permanent nature to the right leg within the meaning of Insurance Law.
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