Creedon & Gill P.C.

What’s it worth: Valuation of Neck and Back Surgery without Specials

On Behalf of | Apr 27, 2020 | Firm News |

Neck And Back Surgeries Without Significant Special Damages

It appears that in a case without a significant future medical or lost wage claim, that awards for surgeries for neck and back complaints will top out at around $800,000.

A touchstone for this consideration is Murry v. Witherel (App. Div. 3rd Dept 2001) 287 A.D.2d 926, 731 N.Y.S.2d 571.

Murry is from an upstate department, and concerns a case involving both back and neck surgery. In this case the Appellate Division increased an inadequate award to $350,000 for past pain and suffering and $450,000 for future pain and suffering and to entry of judgment in accordance therewith.

The case is worth quoting at length since, in addition to describing Plaintiff’s injuries, it includes a review of other cases and their awards.

Plaintiff’s treating orthopedic surgeon, Charles Peralo, testified that when he first examined plaintiff approximately one month after the accident, she complained of pain in her lower back radiating to her lower extremity, as well as pain in her cervical spine. He ordered an MRI which revealed cervical disc herniations at C5–6 and C4–5 and compression of the nerve root. In addition, an MRI film of the lumbar spine demonstrated a disc herniation at L3–4, also impinging on the spinal cord. Moreover, Peralo indicated that he had contrasted preaccident and postaccident MRI films and opined that plaintiff’s herniations were directly related to the subject 1997 accident, and not an earlier 1994 accident in which plaintiff was involved. Peralo recommended a course of treatment which included physical therapy and epidural and trigger point injections. When this conservative treatment failed to alleviate plaintiff’s symptoms, Peralo recommended both cervical and lumbar surgeries. Plaintiff thereafter underwent an anterior cervical decompressive discectomy and Cloward graft fusion with iliac bone grafting, in which two cervical vertebrae were fused using bone removed from her hip in order to eliminate motion of the cervical spine at the levels where it was fused. Peralo further testified that plaintiff would need to undergo lumbar spine surgery to treat her lumbar disc herniation but that such surgery had not yet been performed as they were waiting for plaintiff to recover from the cervical spine surgery. Finally, in Peralo’s opinion, it was unlikely that plaintiff would be able to return to her job as a driver for the elderly because prolonged periods of sitting would place a great deal of pressure on her lumbar spine.

With regard to the award of $25,000 for past pain and suffering, we note that although an examination of similar cases reveals a broad range of verdicts for injuries and surgery of this nature, most appear to be significantly higher than the award in this case (see, Miranda v. New Dimension Realty Co., 278 A.D.2d 137, 718 N.Y.S.2d 54 [award of $100,000 for past pain and suffering to a plaintiff who had undergone spinal fusion surgery was inadequate and was required to be increased to $400,000 in order to avoid a new trial on damages]; Smith v. Monro Muffler Brake, 275 A.D.2d 1028, 713 N.Y.S.2d 581, lv. denied 96 N.Y.2d 710, 726 N.Y.S.2d 373, 750 N.E.2d 75 [award of $50,000 for past pain and suffering to a plaintiff who suffered a herniated disc requiring surgery was inadequate and was required to be increased to $400,000 to avoid a new trial on damages]; Rountree v. Manhattan & Bronx Surface Tr. Operating Auth., 261 A.D.2d 324, 692 N.Y.S.2d 13, lv. denied 94 N.Y.2d 754, 701 N.Y.S.2d 340, 723 N.E.2d 89 [award of $450,000 for past pain and suffering to a plaintiff who sustained a herniated disc at C5–6 requiring surgery]; Osiecki v. Olympic Regional Dev. Auth., supra [awards of damages for past pain and suffering in the amounts of $120,000 and $75,000, respectively, for one plaintiff who sustained two herniated discs and another who was diagnosed with cervical and lumbar strains]; Barrowman v. Niagara Mohawk Power Corp., 252 A.D.2d 946, 675 N.Y.S.2d 734, lv. denied 92 N.Y.2d 817, 684 N.Y.S.2d 488, 707 N.E.2d 443 [award of $3,000,000 for past and future pain and suffering for a plaintiff who suffered herniated discs and a ruptured disc requiring two surgeries]; Niles v. Shue Roofing Co., supra [award of $100,000 for past pain and suffering to a plaintiff suffering from a degenerative disc bulge at L4–5]; Manchester v. Bankhead Corp., 125 A.D.2d 740, 509 N.Y.S.2d 434 [total damages of $375,000 for injuries requiring spinal fusion and bone graft after removal of herniated disc] ).

Ramos v. New York City Transit Authority is also a frequently cited case on this issue. (App. Div. 1st Dept. 2011) 190 AD 3d 429.

Awards of $270,000 for past pain and suffering and $325,000 for future pain and suffering over nine years for injuries plaintiff sustained when bus struck his open car door was not excessive; as result of accident, plaintiff, who was 59 years old, sustained multiple disc herniations in his lumbar spine, and four years after accident underwent combined discectomy, laminectomy and spinal fusion of his lumbar spine, with insertion of metal plates and screws, which did not provide relief, and plaintiff’s medical expert testified with respect to permanency of plaintiff’s pain, his loss of function, and nerve damage.

Another frequently cited case is Valentin v. City of New York 292 AD 2d 313 (App. Div. 1st Dept 2002) where again the Appellate Division raised damages to %350,00 and $450,000 respectively.

The unrefuted trial evidence established that, as a result of slipping and falling down a flight of stairs while delivering a load of produce to P.S. 35 in September **717 1992, plaintiff suffered spondylolisthesis of the L–5 vertebra, i.e., the bone separated from the back of the lower spine and shifted forward. Plaintiff’s treating orthopedic surgeon initially prescribed a body brace *314 “to try to hold the spine together.” This condition severely compressed the L–5 nerve root, causing plaintiff sharp pain down his right leg, in addition to the low back pain he was experiencing. In an eight-hour surgery in June 1993, plaintiff underwent a fusion of the L–5 and S–1 spinal bones, which included the insertion of two steel rods with screws against the spinal column and a bone-growth stimulator to aid bone healing, and a laminectomy to remove the pressure on the nerve root. The bone-growth stimulator was removed during a second surgery in April 1995. Plaintiff continued to have low back pain for which he was prescribed painkillers, muscle relaxants and physical therapy and, in 1997, he was referred to a pain management specialist, who injected novocaine directly into the nerve roots, with only temporary success. The orthopedic surgeon testified that plaintiff would likely need further surgery extending the spinal fusion to the next higher vertebra. This surgery would include removing the existing metallic implants and inserting new ones. The surgeon testified that plaintiff would likely have pain for the rest of his life and would be unable to perform any kind of manual labor, work that requires prolonged sitting, or work that requires a clear mind, because the continuous pain medication impaired his ability to concentrate.

From its awards for past and future lost earnings it is clear that the jury credited plaintiff’s claim that after the accident he was unable to work, whereas before he had worked full time as a truck driver delivering heavy crates of produce.

However, its awards for past and future pain and suffering are inconsistent with that finding and deviate materially from what is reasonable compensation under the circumstances (see, CPLR 5501[c]; see, e.g., Donlon v. The City of New York, 284 A.D.2d 13, 727 N.Y.S.2d 94 [$400,000 each for past and future pain and suffering of firefighter who fell 25 feet, fractured two vertebrae, recovered and returned to work with no restrictions]; Rountree v. Manhattan & Bronx Surface Tr. Operating Auth., 261 A.D.2d 324, 692 N.Y.S.2d 13, lv. denied 94 N.Y.2d 754, 701 N.Y.S.2d 340, 723 N.E.2d 89 [$450,000 for past pain and suffering of man with herniated disk and permanent pain and loss of mobility who was unable to return to former work]; Adams v. Romero, 227 A.D.2d 292, 642 N.Y.S.2d 673 [$450,000 for past and future pain and suffering of man with two herniated discs with pain and permanent loss of mobility in neck] ). An increase in those awards to the extent indicated is therefore