From the New York Post on a case we co-counseled with Fred Lichtmacher, Esq (full article at https://www.nydailynews.com/new-york/bronx/orphan-woman-killed-ex-boyfriend-1m-city-article-1.2791262):
The city has paid $1.15 million to settle a lawsuit stemming from the murder of a teen mother fatally shot in bed by her 40-year-old NYPD cop boyfriend who then killed himself, the Daily News has learned.
Shirley Fontanez was shot five times by Police Officer Frederick Maselli with his Glock service handgun in July 2007.
Fontanez, who was 18 when she died, allegedly began dating the cop when she was 16, according to court papers.
The payout will go to Fontanez’s daughter, who is now 12 when she reaches adulthood. Maselli was not the biological father of the girl.
“The settlement of this tragic case was fair and in the best interest of the city,” said Law Department spokesman Nicholas Paolucci.
Fred Lichtmacher, the lawyer for the girl’s legal guardian, declined to comment Tuesday on the settlement.
The teen’s mother, relatives, and friends had claimed Maselli’s fellow cops at the 34th Precinct in Washington Heights knew he was dating an underage girl and had ignored complaints from them that he was beating her, according to court papers.
Fontanez’s mother, Maria Espinoza, stated in a sworn affidavit that she became aware of the illicit relationship between Fontanez and Maselli in 2005 and informed the cop’s supervisor.
“(The sergeant) responded by ignoring the allegations and instead of making passes at me sexually,” the affidavit said.
Kenia Grano de Oro, the little girl’s aunt, testified that she made at least five complaints at the precinct about Maselli beating Fontanez. She claims that on one occasion the cops threatened to arrest her for disorderly conduct if she did not leave the stationhouse.
The suit, filed in Bronx Supreme Court, contended that had the NYPD investigated the allegations, the murder-suicide could have been averted.
“I lived next to the (34th Precinct) and I witnessed the fact that everyone in the precinct up to and including the commanding officer being aware of the improper relationship with Shirley and Fred but failed to take action,” Fontanez’s friend Monica Pineda said in an affidavit.
The suit was initially thrown out by a lower court, but a state appeals court reinstated it last year. The groundbreaking ruling said the city could be found responsible even though Maselli was off-duty when he committed the evil deed if a jury found that he was negligently supervised and whether the violence had been foreseeable.
Maselli’s fellow cops all denied they were aware of any complaints about him abusing Fontanez.
It was later suspected that Maselli was experiencing financial problems and may have put Fontanez up to cashing thousands of dollars in stolen checks in New Jersey.
Fontanez lost custody of her daughter before her death. The child is now being raised by relatives.
The plaintiff, 33 at the time contended that the defendant OB/GYN and her associated clinic, negligently failed to observe a second, ectopic pregnancy (“heterotopic pregnancy”) when she confirmed an intrauterine pregnancy. The plaintiff indicated that she did not choose to have a baby at this time because she was caring for her ailing grandmother. The plaintiff, who had a family history of twins, asserted that the defendant negligently failed to note a second, ectopic pregnancy on ultrasound. The intrauterine pregnancy was terminated, and 12 days later, the plaintiff suffered extensive pain and was taken by ambulance to the non-party hospital where it was determined that a fallopian tube had ruptured.
The defendant contended that the diagnosis of an intrauterine pregnancy rendered the chances of a second ectopic pregnancy to be very remote; and that the failure of the defendant to diagnose it was not a deviation. The defendant also maintained that the 6-week & 3-day old ectopic pregnancy might not be visible on ultrasound. The plaintiff denied these positions should be accepted, and contended that the heterotopic pregnancy should have been visible on ultrasound and detected by the defendant. The plaintiff claimed that had a proper diagnosis been made, the ectopic pregnancy could have been addressed medically.
The plaintiff contended that she suffered extensive pain that will continue to some extent permanently.
The plaintiff also asserted that her chances of future conception have been reduced.
The defendant denied that the plaintiff will suffer pain in the future or that her chances of conception have been reduced.
The jury found for the plaintiff and awarded $500,000, including $350,000 for past pain and suffering and $150,000 for future pain and suffering. The Court denied the defendant’s post-trial motion to dismiss the jury verdict with respect to future damages. The defendant’s remaining post-trial motions are pending.
Reported in Zarin’s Jury Verdicts (jvra.com):
In this action, the plaintiff driver of a yellow taxicab, age 40 was struck head-on by the defendant’s 2-3 ton ambulette van. The defendants conceded liability in their opening statement, and the case was tried to the jury on damages only. The plaintiff asserted that he was wearing his seatbelt and lost consciousness immediately after the motor vehicle accident, and complained of immediate pain to the right dominant hand and wrist, as well as cervical spine pain.
The plaintiff maintained that as a result of the accident he underwent surgery of his right hand. The plaintiff claimed that because of his injuries he has been unable to sit for long periods of time, and this has greatly impacted his ability to work as a taxi driver. The plaintiff further asserted that he cannot lift heavy objects, can no longer play soccer and needs assistance with activities of daily life. The plaintiff maintained that he will permanently suffer symptoms that include back pain, neck pain, numbness in his right thumb, and will require constant monitoring and possibly further surgery.
The defendant was not available to testify.
The plaintiff claimed that he will continue to suffer from low back and neck pain, along with decreased functionality of his right hand. The plaintiff testified that he has not been able to return to his normal work schedule since the accident.
The jury awarded $1,400,000. The award was allocated as follows: $300,000 for past pain and suffering, $500,000 for future pain and suffering over 30 years, $100,000 for past medical expenses, and $500,000 for future medical expenses over 30 years.
The jury verdict was 6-0. The jury deliberated for approximately 3 hours.
Demand Prior to Trial: $1 Million.
Offer Prior to Trial: $85,000.00.
Halperin & Halperin P.C. represented the Estate of a woman who presented to the emergency room with severe stomach pain. She died hours later in the emergency department having received negligible treatment at best. The cause of death was infarction (obstruction of blood supply) to the small bowel. The patient was known to the emergency department as she had appeared on multiple occasions in the past with psychological issues. The emergency department staff believed her complaints and screams of pain to be nothing more than another psychotic episode and ignored her as best they could. The Estate received $418,500.0 pursuant to the settlement for wrongful death.
Rena Berger & Russell Hart v. Katherine Joy Shen, MD and Westchester Medical Group, P.C.
The plaintiff contended that the defendant negligently used excessive force in the performance of endoscopic sinus surgery causing a trauma that resulted in an injury to the plaintiff’s cribriform plate located at the top of her sinuses. This resulted in a 1.5 cm opening in the plate causing a cerebral-spinal leak. The plaintiff further asserted that the defendant failed to advise her that the intra-operative trauma to the nasal area necessitated the placement of a dural patch or plug. Because the plaintiff was not properly advised post-operatively, she did not realize that a runny nose that continued for nine months was related to the cerebral-spinal fluid leak, and by the time the correct cause was ascertained by a subsequent non-party otolaryngologist, the plaintiff required much more complicated surgery.
Plaintiff claimed that as a result of defendant’s negligence in performing the sinus surgery and failing to give proper post-operative instructions, she suffered anosmia, or the loss of smell and the associated reduction in taste that was permanent in nature, as well as dysosmia, or distortion of her smell. The plaintiff maintained that she will permanently suffer symptoms that included intermittent headaches, and will require constant monitoring and possibly further surgery.
The plaintiff claimed that the defendant employed a negligent surgical technique and caused injury to the olfactory nerve, causing anosmia and dysosmia.
The defendant denied that the surgery was performed in a negligent fashion and further claimed that the loss of smell and taste preceded the surgery.
The jury found that the defendant did not depart in the presurgical workup, that the defendant provided adequate informed consent prior to the surgery, that the surgery was not performed in a negligent manner, but that the defendant did not tell the plaintiff about the patch, constituting a deviation, and that proper post-operative care was not provided. They then awarded $1,115,228 to the plaintiff, allocated as follows: $500,000 for past pain and suffering, $500,000 for future pain and suffering over 20 years, $26,738 for past medical expenses, $7,500 for past lost earnings, $50,000 for past loss of services and $50,000 over 20 years for future loss of services. The defendant’s post-trial motions were denied.
Improper placement of a percutaneous endoscopic gastrostomy/jejunostomy tube perforated the decedent’s stomach resulting in emergency surgery and eight months of hospitalization, and death.
The published verdict from verdictsearch.com:
On Oct. 3, 2001, the plaintiff’s decedent, a retiree who performed part-time consulting work, underwent open-heart surgery that included replacement of a tricuspid valve. The procedure was performed by Dr. Richard Moggio, at Westchester Medical Center, in Valhalla. Moggio was assisted by Dr. Howard Axelrod. The decedent’s postoperative care was rendered by Moggio, who was assisted by Dr. Ron Smith and several other doctors.
The decedent was suffering difficulty breathing and swallowing, and Moggio and Smith determined that the difficulties were preventing the decedent’s adequate intake of nutrition. Thus, on Oct. 25, 2001, the decedent underwent implantation of a percutaneous endoscopic gastrostomy/jejunostomy tube. The tube was inserted by an attending gastroenterologist, Dr. David Wolf, with the help of a gastrointestinal resident or fellow, Dr. Sylvan, who was employed by Westchester Medical Center. The next day, the decedent was cleared to receive tube feedings, and Wolf signed off of the case.
On Nov. 5, 2001, a chest X-ray revealed an abnormal condition: the presence of free air under the decedent’s diaphragm. A physician’s assistant ordered an abdominal X-ray to follow up on the finding, and the X-ray revealed another abnormal finding: a large pneumoperitoneum–essentially a body of free air in the abdomen. The floor was notified of the pneumoperitoneum, which persisted through the remainder of the decedent’s admission.
Eight days later, on Nov. 13, the nursing staff noted that the decedent’s abdomen was slightly distended. A week later, on Nov. 18, a second abdominal X-ray confirmed the prior diagnosis of a pneumoperitoneum.
On Nov. 20, 2001, the decedent was discharged to Burke Rehabilitation Center, in White Plains. Within hours of his arrival, doctors determined that he was febrile and suffering respiratory distress. He was immediately placed in an ambulance and transported to White Plains [N.Y.] Hospital Center, in critical condition. At the hospital, physicians and emergency-room personnel found him to be in respiratory distress and possibly suffering peritonitis. The emergency room’s records also noted that his abdomen was distended and that the PEG/PEJ tube was surrounded by a colostomy bag that was draining abdominal fluid, which doctors determined to be ascites–a large accumulation of fluid in the patient’s abdomen. During the early morning hours of Nov. 22, 20001, the decedent underwent an abdominal X-ray and CT scan. The tests’ results confirmed that the tube had become displaced and that the decedent had sustained a perforation of his stomach.
Later that day, emergency surgery was performed to repair the perforation. Although the decedent was not expected to survive beyond the first night, he did manage to survive. His condition waxed and waned during the ensuing months. Ultimately, he arrested and died about eight months later, on July 6, 2002.
The decedent’s widow, acting individually and as administratrix of her husband’s estate, sued Westchester Medical Center; the facility’s operator, Westchester County Health Care Corp.; Moggio; Smith; Sylvan; Wolf; and another doctor, Robert Klein. The plaintiffs alleged that Sylvan and Wolf failed to properly insert the PEG/PEJ tube, that Moggio and Smith erred by requesting the insertion of the tube, that the doctors’ actions constituted medical malpractice, and that the remaining parties were vicariously liable for the doctors’ actions.
The plaintiffs’ counsel subsequently discontinued the claims against Klein and Sylvan. The matter proceeded to a trial against the remaining defendants.
Plaintiffs’ counsel claimed that the PEG/PEJ tube was not properly inserted and that, as a result, it caused a perforation of the decedent’s stomach. He contended that the defendants never performed tests or ordered a gastrointestinal consult to rule out a possible perforation of the decedent’s stomach. He claimed that the decedent was improperly discharged, given the improper displacement of the tube and the fact that he was suffering pneumoperitoneum.
The plaintiffs’ counsel also claimed that Moggio and Smith should not have requested a PEG/PEJ tube because the decedent was suffering moderate-to-severe ascites. She further claimed that Wolf was negligent in recommending and performing the intubation because of the decedent’s ascites, by not first removing the ascites from the area in which the tube was ultimately placed, and by signing off of the case and not continuing to follow the decedent, especially in light of his the presence of ascites in the area in which the tube was placed.
The decedent’s counsel contended that, after the tube was placed, serous-sanguineous fluid began leaking from around the outside of the tube, that the bandages from around the tube were soaked, that a colostomy bag had to be placed around the outside of the tube to collect all of the fluid, and that the attending physicians and nursing staff were aware of this drainage but did not address it. She argued that the decedent’s condition on Nov. 20 should have been diagnosed and treated days–even weeks–before his discharge from Westchester Medical Center, and that it was a departure to discharge him to Burke Rehabilitation Center, given his poor condition.
Defense counsel contended that the tube was properly placed, that the postoperative care was appropriate, that the perforation was a complication of the intubation procedure, that the decedent did not suffer peritonitis, that he was extremely sick as a result of unrelated causes, that his death was not related to the tube placement or perforation, and that he somehow sustained the tear or perforation of his stomach during the few hours after he left the defendants’ care.
Plaintiffs’ counsel claimed that the decedent sustained a perforation of his stomach and that, as a result, he suffered peritonitis and a pneumoperitoneum. The decedent underwent emergency surgery, and his hospitalization lasted about eight months. He ultimately suffered cardiac arrest. He died July 6, 2002, at age 68. He was survived by his wife and a 24-year-old daughter.
The decedent’s estate sought recovery of wrongful-death damages that included $3 million for the decedent’s pain and suffering, $335,000 for its medical expenses, $15,000 for its funeral expenses, and $1,324,000 to $2,684,000 in economic damages. The decedent’s wife sought recovery of a total of $500,000 to $750,000 for her loss of companionship.
Defense counsel argued that the claim for economic damages was speculative.
The jury rendered a mixed verdict. Westchester Medical Center and Westchester County Health Care were assigned a total of 60-percent liability; Moggio was assigned 25-percent liability; Smith was assigned 15-percent liability, and Wolf was not found liable. The jury found that the plaintiffs’ damages totaled $1.71 million.
While in federal prison, our client’s repeated complaints of nasal blockage and difficulty breathing were ignored by prison physicians. If properly worked up, he would have been timely diagnosed with Stage I laryngeal cancer; but instead, the delay caused his cancer to go unrecognized until it was Stage III. His cancer further progressed to Stage IV, requiring multiple surgeries, including a permanent tracheostomy and a hemilaryngectomy – partial removal of the larynx; and nine months of chemotherapy and radiation treatment.
The published verdict from verdictsearch.com:
In June 2000, the plaintiff, an inmate incarcerated at the federal correctional institution located in Loretto, Pa., reported that he was suffering a nasal blockage and breathing difficulty. He was subsequently examined by several of the institution’s physician’s assistants.
On July 6, 2000, the plaintiff submitted an “inmate request to staff” form that requested an examination by an ear, nose and throat specialist. The request was denied. The plaintiff appealed the denial, but the jail warden denied the appeal.
During the period that spanned September 2000 and June 2001, the plaintiff repeatedly reported that he was suffering hoarseness, a sore throat, speaking difficulties, and a dry cough. He was examined more than 13 times by the prison medical staff, which ultimately determined that the plaintiff was suffering recurrent pharyngitis–an infection or irritation of the pharynx or tonsils. The plaintiff was administered several different antibiotics.
During the period that spanned June 2001 and July 2001, the plaintiff was transferred three times. He was sent to the federal penitentiary in Lewisburg, Pa., to the federal transfer center in Oklahoma and, finally, to the federal detention center in Oakdale, La. At each stop, he repeated his complaints, was examined and was administered antibiotics.
On Oct. 24, 2001, the plaintiff was examined by Dr. Leslie Warshaw Jr., an ear, nose and throat specialist who was employed by the Federal Bureau of Prisons. Warshaw recommended the performance of a CT scan and requested a follow-up examination of the plaintiff. He did not examine the plaintiff’s larynx, but such an examination was performed during the follow-up examination, which occurred Jan. 22, 2002. During that examination, Warshaw observed a lesion that was located on the plaintiff’s larynx. Warshaw recommended the performance of a biopsy.
On Feb. 6, 2002, Warshaw performed a panendoscopy – an examination of the lining of the esophagus. He also performed a laser biopsy of the larynx lesion. He removed a mass legion that occupied the anterior two-thirds of the plaintiff’s right true vocal cord. After the procedure, Warshaw determined that the plaintiff was suffering from laryngeal cancer.
The plaintiff sued the Federal Bureau of Prisons and its operator, the United States of America. He alleged that the bureau’s staff failed to timely diagnose and treat his cancer and that the failure constituted medical malpractice. The matter proceeded to a bench trial.
The plaintiff claimed that he repeatedly requested examinations by an ear, nose and throat specialist, but that his requests were denied. His counsel contended that the cancer was diagnosed during stage III, but that it could have been diagnosed in September 2000 or October 2000, when it was a stage-I condition. He also contended that the plaintiff’s treatment did not begin until after March 1, 2002, when the plaintiff was released from the federal prison system.
Defense counsel contended that the plaintiff’s cancer was timely diagnosed. They also contended that his medical history included a series of throat ailments that were unrelated to his cancer. They noted that one of the ailments necessitated the performance of a tonsillectomy.
The plaintiff claimed that he suffered stage-III laryngeal cancer that progressed to stage IV. He contended that his treatment did not begin until after March 1, 2002, when he was released from the federal prison system. His treatment comprised multiple surgeries, which included a permanent tracheostomy and a hemilaryngectomy–partial removal of the larynx. He also underwent nine months of chemotherapy and radiation treatment. Cancer recurred in 2003, but it was subsequently eradicated, and the plaintiff remains cancer-free.
The plaintiff claimed that his tracheostomy tube often causes coughing and that he cannot talk unless he covers the tube’s opening. (He uses a finger to cover the opening.) He contended that he suffers esophageal stenosis–or narrowing–and that he will require additional surgical procedures. He also contended that his cancer has produced a 10-year shortening of his life expectancy. His counsel contended that the disease could have been diagnosed before or during stage-I status and that an earlier diagnosis would have produced a more favorable result.
The plaintiff’s medical expenses totaled $18,149. They were paid by insurance, but a lien was pending. He sought recovery of the lien amount, his future medical expenses and damages for his past and future pain and suffering. His damages request totaled $6 million–the maximum allowed by the Federal Tort Claims Act.
Defense counsel noted that the plaintiff was a smoker and contended that his cancer may have fully or partially stemmed from damage caused by smoking. They also contended that his cancer-treatment choices might have fully or partially caused the residual conditions that he experiences. Specifically, they claimed that radiation therapy could have achieved a better result than the hemilaryngectomy. They contended that radiation therapy would have preserved his voice and that it would not have caused esophageal stenosis.
Defense counsel also contended that the plaintiff’s cancer was diagnosed during stage II, that it was timely diagnosed and treated, and that an earlier diagnosis would not have altered the outcome of his treatment.
Defense counsel further noted that the plaintiff’s incarceration included stays in three states and that it ended in Louisiana. They argued that Louisiana law should have been applied to this case and that, as such, the plaintiff’s damages recovery should have been limited to that state’s maximum: $500,000. In response, the plaintiff’s counsel argued that Pennsylvania law was applicable because a cancer diagnosis could have been made while the plaintiff was incarcerated in that state. Judge Charles Sifton accepted the latter argument.
Sifton rendered a plaintiff’s decision. He found that the Bureau of Prisons failed to timely diagnose and treat the plaintiff’s cancer and that the failures were a proximate cause of the plaintiff’s damages. The plaintiff was awarded $1,156,149.
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