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In an unusual if not unprecedented parsing of a medical malpractice verdict, a New Jersey state appeals court held Tuesday that a $100,000 award for pain and suffering was too low because it amounted to $8 a day for the rest of the plaintiff’s life. The Appellate Division ordered a new trial on the $100,000, finding it “grossly insufficient and a miscarriage of justice,” but left in place the liability verdict and $800,000 in economic damages. Another trial is needed because “a recalculation of damages based upon the trial transcripts without having the opportunity to observe the witnesses would be a further miscarriage of justice,” the court held in Walsh v. Disciglio, A-0185-07. Maureen Walsh saw a succession of doctors starting in 1995 for circulatory problems in her toes. By the time she met with vascular surgeon George Constantinopoulos in early 1998, she was in severe pain. He recommended an arteriogram, saying it should be done promptly but that another doctor should arrange it because he was not in her health plan. Walsh had the test 15 days later and was told she needed surgery. A subsequent bypass operation showed that amputation might be necessary. Walsh had a total of seven surgeries, three for amputation after gangrene set in. First she lost her foot, then part of her leg and finally, in 1998, most of her leg as the gangrene advanced upward and her leg began to turn colors. She was 50 at the time, and federal government estimates give a woman of that age a life expectancy of 32.5 years. The jury reached its combined $900,000 verdict in 2007, including $100,000 for pain and suffering, and finding Constantinopoulos 10 percent at fault. Walsh’s attorney, William Levinson, contended that her condition was deteriorating rapidly and that Constantinopoulos did not treat it as an emergency. Levinson moved for additur but Monmouth County Superior Court Judge Louis Locascio denied the motion. On appeal, Levinson argued the pain and suffering award was out of proportion to the nature of the injury and its consequences, warranting a new trial. Appellate Division Judges Dorothea Wefing, Lorraine Parker and Ellen Koblitz agreed in a per curiam opinion, citing three Appellate Division rulings in which compensatory damages of $50,000 were deemed insufficient. Von Borstel v. Campan, 255 N.J. Super. 24 (1992), found the verdict, for a head injury requiring lifetime medication to prevent seizures, was “shockingly low,” which it attributed to the plaintiff’s record as a felon and drug user. In Barrie v. Central R.R. Co., 71 N.J. Super. 587 (1962), where the plaintiff’s life “hung in the balance” for weeks and he required months of additional hospitalization, the court reversed the award because it believed the jury rendered a compromised verdict in the face of evidence the plaintiff might have jumped from the moving train rather than fallen. The court in Petitto v. Sands Hotel & Casino, 288 N.J. Super. 304 (1996), held the award was a miscarriage of justice for a plaintiff with a fractured skull who was left with a droopy eye after three surgeries to repair her face. All three cases were sent back for a new trial on liability and damages. In a fourth case, Tronolone v. Palmer, 224 N.J. Super. 92 (1988), a judge had granted an additur motion that increased damages from $750 to $2,750 for a plaintiff whose head went through a car windshield, causing scarring that affected his sales career. Calling even the additur too low, the appeals court remanded for a new trial on damages. The Walsh panel, in addition to remanding part of the damages, denied Constantinopoulos’ cross-appeal of liability. The court rejected the doctor’s arguments that he could not order the arteriogram because he was not in Walsh’s health plan and that there was no doctor-patient relationship because he saw Walsh as a courtesy to a colleague. The appeals judges said that when Constantinopoulos examined Walsh, he “undertook a duty to meet the standard of care with respect to the examination and any recommendations as a result thereof.” Levinson, of Eichen Levinson & Crutchlow in Edison, N.J., says he has never seen a case that reversed only a portion of a damages award. He says he calculated the $8-per-day value of the damages to convey to the court “in the starkest terms” the inadequacy of the amount. The opinion highlights the need for trial judges to use verdict forms that break up the elements of damages, says Levinson, adding that Locascio did so, but not every judge does. Most of the $800,000 in economic damages reflected a major contract lost by her printing business after the amputation impaired her ability to service it, says Levinson. He also says the denial of Constantinopoulos’ appeal “reaffirms the position that if you see a patient once and give bad advice, you can’t claim they’re not your patient.” Constantinopoulos’ counsel, Richard Grossman of Grossman & Heavey in Brick, N.J., did not return a call.

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