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What's New in Medical Malpractice and Personal Injury
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Medical Malpractice and Personal Injury
Nerve Injury Case Settled For $3,250,000
Abbott represented a three-year-old girl who was injured in
1995 when she sat on a glass coffee table and it broke. Our
client was taken to the emergency room at a Newark hospital.
The defendant emergency room physician ordered X-rays,
which revealed the presence of multiple pieces of glass in the
left gluteal area. The ER doctor removed three pieces of glass,
but was unable to remove several other deeply embedded,
razor-sharp pieces of glass. He sent the child home with
instructions to return three days later.
The next day, our client was taken back to the emergency
room where it was discovered that she now had suffered
a severe nerve injury. Ultimately, it was determined that the
glass left embedded in our client’s body had severed her
sciatic nerve. Thereafter, the remaining large pieces of glass
were removed from our client’s body.
In the resulting lawsuit, we alleged that the medical care
rendered to our client by the defendant ER doctor deviated
from the generally accepted standard of care. In support of
this allegation, we retained a pediatric surgeon and a specialist
in emergency room medicine, who both opined that the
defendant was negligent in discharging the child, and instead
should have admitted the child to the hospital and called a
surgeon to remove the glass before any harm was done.
We retained a number of medical and other experts who
concluded that our client suffered injuries, including the
laceration of the sciatic nerve; sciatic nerve palsy; atrophy of
the left thigh and profound atrophy of the lower left leg; and
deformity of the left ankle and foot.
Our medical experts opined that the above injuries were
caused by the laceration after our client was discharged from
the emergency room. They concluded that our client had
suffered an essentially paralyzed left leg below the knee and
that the prognosis was poor. Another expert whose practice
includes pain management explained how our client’s injuries
isolated her at school and limited her participation in gym as
well as parties or dances. This expert documented the
multiple surgeries, which required extensive post-surgical
recovery and extensive loss of academic time. Finally, we
retained the services of a Life Care Planner to calculate the
total future cost of our client’s health care.
This case was mediated before the Hon. Anthony T. Sciuto.
The defendant’s final offer during the mediation was
$2,000,000, which was rejected. Further negotiations
resulted in the final settlement of $3,250,000.
A portion of the settlement was used to create a Structured
Settlement which will provide for all of our client’s needs in
the future, including guaranteed tax-free income of as much
as $7,000,000 during her life. Additionally, our client will
receive over $600,000 up-front, and we repaid a medical bill
lien of over $190,000, on her behalf.
Peter Bergé and Isabelle
Britton assisted Abbott with this case.
Abbott represented the estate of a 45-year-old husband and
father of two children who was admitted to a suburban
hospital due to severe back and leg pain. Upon admission to
the hospital, the husband was given several doses of
intravenous Dilaudid, a pain reliever. A CT scan performed in
the Emergency Room revealed only degenerative disc disease
at the L5-S1 level and a bulging disc at L4-5.
One defendant, an anesthesiologist, saw the husband later
that day, and increased the rate of the Dilaudid. There was no
order given for any electronic monitoring. Thereafter, our
client’s husband was found in his room to be cyanotic, not
responding to verbal stimuli and with a very low oxygen
saturation level. He was given Narcan to counter the effects
of Dilaudid and recovered from this incident without harm.
Thereafter, the intravenous Dilaudid was restarted, again
without any electronic monitoring. Our client’s husband was
found unresponsive the next morning. This time he could not
be resuscitated and died.
We retained an anesthesiologist and a doctor of nursing, who
both rendered opinions that the defendant anesthesiologist
and the defendant nurse committed malpractice in the manner
in which the Dilaudid was ordered and the manner in
which they failed to monitor our client’s husband.
Our client’s husband was a stay-at-home dad. Because of the
limitations on damages in wrongful death cases, we retained
an economist to calculate the value of the homemaker
services, advice, counsel and guidance that were lost by our
client and her two children. As a result, this case was settled
for $2,000,000.
As part of the settlement, the hospital has agreed in writing
to change its policies and procedures to make certain that
such an incident will not happen again. The new policies and
procedures will require electronic monitoring of all patients
who are similarly situated.
The proceeds of the settlement will be used to purchase
annuities for our client and her two children. The children’s
annuities will be used to pay for college, graduate school and
perhaps a first house after college.
Isabelle Britton assisted
Abbott with this case.
Peter Berge represented a
woman who had to have
a mastectomy because a
radiologist failed to recognize
findings on a mammogram
that were suspicious for
cancer, and her primary care
physician failed to refer her
to a surgeon based on her
physical examination
findings. Had the cancer
been diagnosed earlier, she
could have had the cancer removed without losing her
breast. The case settled for
$400,000.
The case was handled by Peter Berge
Peter Berge settled a case against a
podiatrist who performed
surgery on our client. She
had consulted with the
podiatrist because of a callus
on her little toe. After the
examination, she agreed to
have surgery on the little toe
as well as a procedure on a bunion. The first toe (great
toe), where the bunion was,
had not caused the client any
discomfort prior to the
surgery, but afterward she
was left with daily pain. The
podiatrist also operated on
the little toe without trying
conservative treatments first,
leaving the toe floppy. A
settlement of $175,000 was
reached.
The case was handled by Peter Berge
On May 12,1999, our client suffered a broken foot which ultimately resulted in a severe chronic pain syndrome called Reflex Sympathetic Dystrophy (RSD) which is also more currently known as Complex Regional Pain Syndrome (CRPS). Because this injury was a work related injury, the workers' compensation insurance company paid for extensive treatment over the succeeding five year period resulting in a stabilization of the RSD but still requiring our client to use a combination of medications and physical therapy. He needed Canadian Crutches to walk. That accident is not the subject of this litigation.
On March 2, 2004, our client was waiting outside of his residence in Hoboken for the defendant Multicare Ambulance, Inc. to transport him to Hackensack University Hospital for water therapy, which was part of the regimen for treatment of his RSD. The defendant was the driver of the car sent by Multicare to transport our client. The defendant opened the driver's side door into our client, striking his crutch and causing him to fall against a garage door. As a result of this second accident, our client alleges a severe exacerbation and spread of his RSD. Our client can no longer walk even with the Canadian Crutches and is now wheelchair bound. The severity and extent of his chronic pain syndrome has worsened, requiring further medication. He can no longer bear even light touch on his legs. He is now severely impaired in all activities of daily living. He requires a full-time home health aide to assist him in all activities of daily living, which was not required prior to the March 2, 2004 incident. He now requires special accommodations both inside and outside the home and will require continuing pain management and neurological treatment as well as counseling for his resulting depression.
This accident has also had a tremendous impact on our client's marriage and his relationship with his wife, who virtually gave up her real estate sales job to care for her husband around the clock.
On April 4, 2007, a Hudson County jury awarded 5 million dollars to our client for pain and suffering, 7 million dollars for future care costs, and 2.5 million to his wife for her losses, reduced by 20% for comparative negligence. This case was handled by partner, William L. Gold.
Over $400,000 in Workers' Compensation Benefits Won
A 50-year-old female factory worker was riding to work in a van with a number of her co-workers when a collision occurred. One co-worker was killed, and our client suffered multiple, serious injuries: including femur fracture, arm injury, and significant scalp damage. Despite the fact that her employer had taken money from her paycheck to pay for the van service, the workers' compensation insurance carrier did not want to provide any benefits. After litigating the case for several months, Bendit Weinstock succeeded in obtaining benefits for the client. These benefits included payment of over $350,000 in past medical bills, over $10,000 for back temporary disability benefits which were improperly withheld; ongoing temporary disability payments; ongoing care by multiple medical and surgical specialists and therapists; and reconstructive plastic surgery. Once all necessary care has been provided, we expect to negotiate a settlement for residual permanent disability. The case is being handled by associate Peter Bergé.
$175,000 Settlement Mold Exposure
In this case, our client contended that her landlord failed to properly maintain her apartment which resulted in water leaks and over time eventual caused harmful mold to form. We argued that the mold levels were of a toxic nature. We demonstrated that the defendant breached a well established duty to provide a habitable apartment. The client suffered with breathing problems and was diagnosed with asthma. The defense argued that the asthma was not mold related but instead a result of smoking. The case settled for $175,000 dollars. Associate, Lisa A. Lehrer represented the plaintiff in this case.
$105,000 Personal Injury Settlement Fall at Dollar Store
A woman shopping in a "dollar store" stepped in some slippery gel that was on the floor and fell, tearing a tendon in her shoulder and injuring the cartilage in one knee. Bendit Weinstock filed suit, and after building a strong case for the negligence of the store, was able to obtain a settlement of $105,000 without the necessity of a trial. The case was handled by Bendit Weinstock associate Peter Bergé.
$1.25M Medical Malpractice Settlement Failure to Diagnosis Birth Defect
In this case, our client contended that the a family physician who cared for her during her pregnancy failed to diagnose that she was carrying a child who had serious birth defects. We demonstrated that the defendant breached a well established duty to offer our client certain prenatal screening tests necessary for our client to have made an informed decision concerning whether or not to continue the pregnancy. This case settled for $1.25 million dollars, which will be placed into a structured settlement to pay for the special medical expenses and other extraordinary expenses over the child's lifetime attributable to his birth defects and to compensate the mother for her the emotional suffering and anguish. Bendit Weinstock partners Abbott Brown and Anthony Mazza represented the plaintiff in this case.
1.8M Med-Mal Verdict Musician Lost Hearing
An Essex County jury found a musician's loss of hearing and other ear problems were caused by medical malpractice and awarded $1.8 million for pain and suffering. The plaintiff's ear was oozing brown fluid when he sought the help of a now retired otolaryngologist, who did not properly diagnose his condition and continued an inadequate treatment that eventually resulted in total hearing loss in the right ear, tinnitus, balance problems and facial weakness. The plaintiff was represented by Bendit Weinstock partner, William L. Gold.
Estate Planning, Administration & Litigation
Successful Appellate Defense of Favorable Judgment in Will ContestIn October 2009, following
a trial, a Judgment was
entered in favor of our
client, who was defending a
will contest case. When our
client’s grandmother was
diagnosed with a terminal
illness, she called upon our
client to help her put her
affairs in order. She also
made our client the primary
beneficiary of her will, and
transferred several properties
to her.
Our client’s aunts challenged
their mother’s estate planning
and filed suit to set
aside the will and the real
estate transfers. They
attempted to prove that our
client had “unduly influenced”
her grandmother to
make the transfers of property
and bequests in her will.
Witnesses at the trial
included the plaintiffs, our
client, the attorney who
drafted the will, a bank
officer who had met with our
client’s grandmother in the
hospital to help her carry out
her wishes, and a home
caretaker in whom our
client’s grandmother had
confided about her estate
planning. The Court rejected plaintiffs’ claims and
determined that our client
had not exerted undue
influence over her grandmother.
The Court found
that the decedent was a
strong-willed woman who
knew how she wanted
her assets to be distributed
among her family members,
and went about making
it happen by executing a will
and making transfers of
real estate.
Many will contests end at the
trial level, because it is
likely that the decision of
the trial judge, who had the
opportunity to observe
the witnesses and judge their
credibility, will not be
disturbed on appeal. This
case, however, was appealed
by the plaintiffs. The
Appellate Division rejected
the majority of the appeal
points, but ultimately
remanded the case to the
trial judge for clarification
on one technical point
of his opinion.
In a case like this, involving
transfers made prior to death,
the law requires a judge to
find that there was no undue
influence by “clear and convincing” evidence.
Although the trial judge had
stated that he was
“convinced” that no undue
influence had been exerted
with respect to the real estate
transfers, he had not
explicitly stated that our
client met the burden of
proof by “clear and
convincing evidence.” Upon
remand, the Court did so
state, and Judgment was reentered,
clarifying, once and
for all, our client’s successful
defense of the claim.
Sometimes the lack of a few
words in a Court’s opinion
is critical.
Jim Keegan and Raja
Bhattacharya tried the case,
and Sherri Davis Fowler
defended and argued the
appeal.
On March 9, 2011, the
Appellate Division of
the Superior Court of
New Jersey issued an opinion
affirming a Judgment we
obtained in March 2008 on
behalf of our client in a case
between a brother and sister
relating to the disposition of
their parents’ estate, the
assets of which included a
family partnership and trusts.
We had commenced an
action on behalf of our client,
the sister, to obtain relief
from the Court with respect
to unauthorized transfers and
disposition by her brother of
assets to which she, her husband
and daughters were
entitled. The trial of the
matter took 20 days over the
course of nearly a year, and
involved, among other
witnesses, a Court-appointed
forensic accountant, two
other Court-appointed
experts, and our client’s
expert witness who valued
the family partnership
interests.
Following the trial and
extensive post-trial submissions,
the trial judge issued a
two-day opinion from the
bench resolving the case in
our client’s favor, and awarding
a Judgment to her and
her family members totaling
more than $7,035,400,
including reimbursement
of attorneys’ fees to our
client for prosecuting the
action against her brother
and his wife.
The brother appealed, and
raised numerous appeal
points in his attack upon the
Judgment. The Appellate
Division affirmed the
Judgment in its entirety,
with the exception of the
manner in which the trial
judge had calculated interest,
which he had included in his
award to make our client and
her family members whole
for their losses. In its opinion,
which was 59 pages long, the
Appellate Division affirmed
the Court’s remedy, which
was the entry of a monetary
Judgment in favor of our
client and her family
members, and addressed and
rejected each of the brother’s
substantive points with
respect to the manner in
which the Court evaluated
the evidence and reached its
determination.
The calculation of interest
issue was addressed and an
amended Judgment has been
entered. The brother has
instituted further proceedings
upon Petition to the Supreme
Court.
The underlying case
was tried by James F. Keegan
and Sherri Davis Fowler in
the Chancery Division of
Hudson County. Mr. Keegan
and Ms. Fowler also defended
the appeal.
In 2010, following several
years of complex discovery,
we settled a case on the
eve of trial that involved a
student who was severely
injured in a wood shop class.
The accident occurred
when our client, a middle
school student, was operating
a rather intricate table saw
that ultimately caused severe
injuries to her left hand,
resulting in multiple amputations.
The lawsuit alleged
failure to properly supervise
students engaged in such
activities at school.
Fortunately, our client
received exceptional medical
care, including the reattachment
of her fingers.
Nonetheless, our client was
left with significant permanent
physical and psychological
injuries and damages as a
result of this accident. Our office engaged the
services of a number of
different experts in
preparation of this case.
These experts included a
mechanical engineer with a
specialty in table saws, and
medical experts who were the
actual physicians involved in the treatment and surgery of
our client. Numerous
depositions were taken of
other students who were in
the classroom at the time of
the incident. Ultimately, the
defendant board of education
agreed to participate in a
mediation before a retired
judge for the purpose of
trying to settle the case
before trial. Although the
mediation itself was
unsuccessful, as the trial
approached, we were able to
settle this case for
$1,700,000.
The case was handled by Alan Roth
We filed a lawsuit against a
municipality and several of
its employees for failure to
properly investigate an
accident. The accident
occurred on a service road off
a highway on a very cold
December morning. We
alleged that the investigating
personnel failed to conduct
an appropriate and thorough
search of the area
surrounding this accident
because they wrongly
assumed that the vehicle had
been stolen and abandoned
after the accident.
A proper investigation would
have revealed that our
clients’ son, who was
returning home from work,
was lying on the side of the
road not too far from the
vehicle. He was injured but
would have survived had the
personnel at the scene
performed a proper
investigation of the area.
Unfortunately, our clients’
son died after the passage of
some time because he had
not been discovered. The father found his son’s body
several days later after
conducting his own
investigation. This case required a number
of different experts,
including an expert who
evaluated the vehicle
damage, a police expert, an
EMT expert, an autopsy
expert and medical experts to
describe the types of injuries
and the chances for survival
had an appropriate
investigation been
conducted. This was a hotly
disputed case, which
necessitated our beginning
trial. However, after
approximately two weeks of
trial, the case was settled for
$250,000.
The case was handled by Alan Roth
We recently settled a claim
against another governmental
entity based upon an
allegation that a public
employee sexually molested
our client while that
employee was on duty. The
matter was initially referred
to the Grand Jury, but no
criminal charges were
returned. We instituted a
civil action for injuries
resulting from that sexual
assault. As with the other
claims involving
governmental entities, this
case required a number of
different experts, including a
police procedures expert, as
well as experts in the field of
psychiatry. Again, this case
was hotly disputed and ultimately resulted in a
settlement of $250,000
shortly before trial.
The case was handled by Alan Roth
We recently concluded a case
in Federal Court in Trenton,
New Jersey resulting from a
motor vehicle accident. Our
client, a New York City
firefighter, was severely
injured when his motorcycle
was struck by a truck
making a negligent turn on a
highway. Our client
sustained severe physical and
psychological injuries as a
result of that accident. Over
time, he was treated by a
number of different
specialists and underwent
several surgeries. During the pendency of this
case, we utilized the services
of a number of different
experts, including those in
the field of economic loss,
employability, orthopedic
surgery and psychiatry.
Unfortunately, our client was
alone and became severely
depressed. He was not
married and had no children.
There was a realization that
he would probably not be
able to return to his life’s
work as a firefighter. As a
result of this realization, our
client took his own life.
An administrator of his
estate continued to prosecute
the case and we were
able to settle the case for
$1.1 million.
The case was handled by Alan Roth