How to Determine the Reasonable Settlement Value of Traumatic Trimalleolar Ankle Fractures

By Pete DeFilippis, Esq.

Comparable cases are often reviewed and utilized for settlement purposes by plaintiffs, defendants, judges, and insurance carriers in an attempt to accurately and reasonably evaluate the injury claim at hand. An insurance carrier that refuses to settle an injury claim for a reasonable sum of money within its policy coverage limit may be in breach of the law by evidencing “bad faith.” This occurs when the insurance carrier chooses to squander an opportunity to amicably end the matter, thereby, placing their insureds at preventable risk of a verdict in excess of the policy’s monetary coverage limits.

This article includes some recent pain and suffering verdicts and settlements dealing primarily with plaintiffs suffering from trimalleolar ankle fractures requiring at least two surgeries. Keep in mind that after a damages verdict, an appeal may be taken by either party, and the Appellate Division may sustain, raise or lower a judge’s or jury’s verdict. Accordingly, it is prudent to look at some recent decisions, included below, regarding similar injuries as they may very well ultimately decide the value of the injury.

A trimalleolar fracture is a three-part break of the ankle. The trauma is sometimes accompanied by ligament damage and dislocation. This type of fracture commonly mandates open reduction surgery often requiring the insertion of plates, screws, and K-wires. It is almost always a devastating, debilitating, and life-altering injury. After courses of physical therapy, patients often require a second surgery for removal of the hardware due to worsening pain and irritation. Many times there is evidence of deteriorating changes of the tibiotalar joint (the region where the foot and leg meet) and degenerative spurring in the anterior tibiotalar joint area (located in the ankle) found on x-rays.

The injured may be subsequently diagnosed and treated for pain outside of the ankle such as pain in the ligament that connects the heel bone to the toes. Complaints may include daily pain, swelling, stiffness, instability, ankle dysfunction, tingling, and burning sensations. One may not be able to engage in exercise activities or play sports or play with their children. Injured often have difficulty navigating terrain, they cannot run, and they experience daily pain with severely limited range of motion. In such cases, damages are sought for both past and future pain and suffering claims, the latter based on life expectancy tables.

Additional complications may include unhealed fractures, ligament injuries, plantar fasciitis and arthritis. Many receive treatment including orthotics, anti-inflammatories, and corticosteroid injections. Management for the above and any ensuing tendinitis or degenerative arthritis may include a recommendation for a third surgery sometimes necessitating basically a complete reconstruction and/or fusion of the ankle including tendon grafts. After that surgery, additional physical therapy may be needed. However, most doctors will agree, even if the reconstructive surgery is medically successful, the patient will never again have a “normal ankle.”

Spouses affected by the life changes brought on by this harsh injury often bring on their own loss of services claim in court and testify in detail about how this injury has impacted their spouse, the marital relationship and entire family dynamic. The below-cited cases do not include damage amounts for loss of consortium claims and again relate only to compensation for the harms and losses arising from pain and suffering, loss of enjoyment of life.

In Boulukos v. 213 P.A.S., L.L.P. (2nd Dept. 2004)¹ , venue was placed in New York County: A case involving a 38-year-old man who sustained fractures in the lower part of each ankle with bone fragments was awarded $2,000,000 for 35 years of future pain and suffering. The trial judge reduced that to $960,000. The Appellate Court modified it upwards to $1,500,000.

In Telsaint v. City of New York (2nd Dept. 2014)², venue was placed in Kings County: A case involving a 21-year-old woman who sustained trimalleolar fracture with one surgery was awarded $2,250,000 ($750,000 past pain and suffering and $1,500,000 future pain and suffering). This was modified downward on appeal to $1,250,000 ($350,000 past pain and suffering, $900,000 future pain and suffering).

In Gonzalez v. City of New York (2nd Dept. 2013)³, venue was placed in Kings County: The plaintiff, a 54-year-old social worker, fell and sued the city, the board of education and the school claiming negligence caused her injuries including a bimalleolar fracture requiring open reduction and internal fixation of a plate and several screws. A second surgery was required to remove her hardware. She subsequently underwent about five months of physical therapy that was rendered two to three times a week. Some 18 months after the accident, she underwent the removal of her fixation hardware. The jury found that the defendants were negligent in failing to keep the vestibule in a reasonably safe condition and awarded the plaintiff pain and suffering damages in the sum of $950,000 ($500,000 past pain and suffering and $450,000 future pain and suffering). On appeal, the damages award was affirmed, i.e. it remained intact.

In Figueroa v. HLM Electric Ltd.(2nd Dept. 2014)⁴, venue was placed in Queens County: A wall collapsed during the course of the men’s work. Stone fell into the trench and struck the plaintiff, a 30-year-old laborer. He sustained a nondisplaced fracture of his left ankle. He also sustained tears of ligaments of the same ankle. Figueroa’s fracture was addressed via open reduction and the internal fixation of two screws. On March 13, 2009, he underwent surgical removal of the screws. On Aug. 14, 2009, he underwent surgical repair of one of his left ankle’s ligaments. The latter procedure included the release of an entrapped nerve. Figueroa also underwent physical therapy and the administration of three painkilling sympathetic block injections. An award of $2,280,000 was rendered by the jury ($1,000,000 past pain and suffering and $1,280,000 future pain and suffering). The Appellate Court affirmed the $2,280,000 verdict for pain and suffering.

In Gazzolla v. John P. Genn, III⁵, venue was placed in Westchester County: The plaintiff, a 29-year-old insurance broker, was driving through the intersection when her car collided with another car. Gazzolla was trapped in her car for more than an hour. When she was extracted, her right foot was found to be facing backward. Doctors diagnosed open fractures of the fibula and tibia of the right ankle and leg. They repaired the fractures via open reduction and internal fixation. Her medical experts agreed that she will have to undergo at least one surgery, including a hardware removal procedure that will cause an eight-week-long disability. An award of $1,500,000 was rendered by the jury ($500,000 past pain and suffering and $1,000,000 future pain and suffering).

In Clark v. N-H Farms, Inc.⁶, venue was placed in Orange County: The plaintiff, a 43-year-old woman, was injured while exiting the defendant’s carnival grounds. She fell into an unguarded hole and suffered a fractured fibula and a trimalleolar fracture of her right ankle. She also claimed to have suffered an injury to her syndesmotic ligaments (a ligament that connects two bones of the leg). Clark spent 16 days at Westchester County Medical Center, where she underwent ankle-reconstruction surgery, which included open reduction, internal fixation, and the insertion of a plate and 10 screws. She also developed post-traumatic progressive osteoarthritis in the ankle joint. The jury awarded her $1,200,000 ($500,000 past pain and suffering and $700,000 future pain and suffering).

In Ruiz v. Hart Elm Corp.⁷,(2nd Dept. 2007), damages of $500,000 for past pain and suffering and $400,000 for future pain and suffering, totaling $900,000, was awarded by a Kings County jury. The higher Court held that this award did not materially deviate from what would be considered reasonable compensation for injuries to the plaintiff, a 22-year-old woman, who tripped and fell downstairs when her foot was caught in a hole in the carpet, causing injuries including a severe bimalleolar ankle fracture which required the plaintiff to undergo three surgeries.

In Gonzalez v. Karwowski ⁸, venue was placed in Kings County: The plaintiff, Janeen Gonzalez, in her mid-50s, sustained a bimalleolar fracture requiring surgery with ORIF (Open Reduction Internal Fixation). Hardware was removed via two surgeries. She developed plantar fasciitis (pain in the heel and bottom of foot) and underwent a fourth surgery for a fasciotomy. A mediated settlement of $950,000 was reached in 2014.

In Guzman v. NYCTA ⁹, venue was placed in Kings County: The plaintiff, a 34-year-old house cleaner, exited a bus while it was stopped between the intersections and fell onto the roadway. She sustained a trimalleolar fracture and was addressed via open reduction and the internal fixation of plates and screws. She underwent removal of a screw that had been inserted during her prior surgery and underwent removal of the remainder of her fixation hardware. An award of $1,250,000 was rendered by the jury ($700,000 past pain and suffering and $550,000 future pain and suffering).

In Rieger v. 303 East Owners Corp.¹⁰, venue was placed in New York County: The plaintiff, a 47-year-old elevator contractor, fell off a ladder and sustained a severe, comminuted fracture (a fracture in which a bone is broken, splintered or crushed) and dislocation of his left ankle. The injury included fractures in his left leg. The procedure included open reduction and the internal fixation of plates and screws. Rieger’s expert orthopedist opined the early onset of traumatic osteoarthritis. An award of $1,200,000 was rendered by the jury ($200,000 past pain and suffering, $1,000,000 future pain and suffering).

In Belo v. Jackson Terrace Associates a Limited Partnership & Alvin Benhamin¹¹, venue was placed in Nassau County: The plaintiff, a 63-year-old retiree, fell and sustained a comminuted fracture of her left ankle. The injury was treated via open reduction and internal fixation and she underwent total replacement of the ankle. The parties agreed to a $1,000,000 mediated settlement.

In Wallace v. Stonehenge Group, Ltd.¹², venue was placed in Westchester County: The plaintiff, a 58-year-old roofer, was installing roof tiles when he slipped and fell approximately 15 feet. He sustained a fracture of his left ankle and sustained a comminuted Pilon fracture of his left ankle, which required four surgical procedures. An award of $2,050,000 was rendered by the jury ($800,000 past pain and suffering and $1,250,000 future pain and suffering).

In Tolpa v. One Astoria Square, LLC and Criterion Development Group, LLC¹³, venue was placed in Kings County: The plaintiff, a 47-year-old plumber’s assistant, tripped while he was performing an inspection of a building’s basement. Tolpa sustained a Pilon fracture of his right ankle and his fracture was addressed via open reduction and internal fixation. He underwent surgical removal of the fixation hardware. Plaintiff claimed that his right ankle developed residual arthritis and his pain prevents his resumption of anything more than occasional labor. He also claimed that he must undergo fusion of his right ankle and that his back pain will require physical therapy and the administration of epidural injections of steroid-based painkillers. The settlement totaled $2,100,000 [paid by Utica First Insurance Co.]

In D’Amore v. MetLife, Inc.¹⁴, venue was placed in New York County: The plaintiff, a 52-year-old man, slipped on a stairway in the lobby of a building and sustained a trimalleolar fracture. Her fracture was initially addressed via open reduction and the internal fixation of a rod and screws, but the surgery was not entirely successful. As a result, she had to undergo follow-up surgery. In 2007, doctors removed some of her fixation hardware. In January 2009, she underwent fusion of the injured ankle. An award of $1,400,000 was rendered by the jury ($1,000,000 past pain and suffering and $400,000 future pain and suffering).

In Castelan v. New York City Transit Authority¹⁵, venue was placed in Kings County: The plaintiff, a 45-year-old handyman, fell while he was ascending a stairway of the subway station. Castelan sustained a bimalleolar fracture. His fracture was addressed via open reduction and internal fixation. The treating surgeon opined that Castelan requires lifelong physical therapy and pain management. An award of $1,000,000 was rendered by the jury ($500,000 past pain and suffering and $500,000 future pain and suffering).

In Mondone, Jr. v. Christopher P. Lane¹⁶, venue was placed in Nassau County: A temporary stairway collapsed while the plaintiff, a 52-year-old electrician, was descending it, and he fell a distance of about 8 feet. Mondone sustained a bimalleolar fracture, ankle fracture, talus, internal fixation; open reduction and screws. He also sustained a fracture of the associated foot’s talus, which is a small bone that lies between the bones of the heel and leg. Mondone underwent surgical adjustment of the injured ankle’s tendons. An award of $2,500.000 was rendered by the jury ($1,500,000 past pain and suffering $1,000,000 future pain and suffering).

In Rivera v. New York City Transit Authority¹⁷, venue was placed in New York County: The plaintiff, a 35-year-old office worker, tripped while exiting a public bus that was stopped alongside an intersection. Rivera claimed that she tripped in a pothole and sustained a trimalleolar fracture. Her fracture was addressed via open reduction and internal fixation. She subsequently underwent surgical removal of two of the fixation screws, surgical removal of her remaining fixation hardware, and additional physical therapy. An award of $1,710,000 was rendered by the jury ($710,000 past pain and suffering and $1,000,000 future pain and suffering).

As discussed, representative cases like these are often used by plaintiffs, defendants, courts and insurance carriers as “case precedent” to try and accurately place a value on the injuries at issue for potential settlement purposes. Under the law, an insurance company refusing to settle a matter within the amount of the policy limits is obligated to advise its insureds that if the plaintiff secures a judgment in excess of the policy limits, he or she may pursue any personal and/or corporate assets for any unpaid judgment amount in excess of the verdict. See, Pavia v. State Farm Insurance Co.¹⁸.

The Court found in Henegan v. Merchants Mut. Ins. Co.¹⁹ that the mere existence of an excess final judgment causes harm to the judgment debtor, whether he has the means to pay it or not. The judgment increases his debts, damages his credit and subjects his property to liens. Insurance companies are well-advised to avoid “bad faith” and alert the defendant of the risk that they are taking on their behalf by rejecting reasonable settlement offers and advise them of their right to seek private counsel to consult with on this issue. Unfortunately, many times defendants’ counsels are hired and paid for by the insurance company to represent the defendant, and therefore may be lax at placing the best interest of the defendant above the insurance company. An insurer acts in good faith when, in considering a plaintiff’s demand to settle, it gives as much consideration to its insured’s interest in avoiding liability in excess of the policy limits as it does its own interest in saving money on the policy.

In addition to pursuing the corporation and personal assets of the insureds, the plaintiff may seek to hold the insurance company liable for the full amount of any excess judgment, pursuant to the ruling of the Court of Appeals of the State of New York in the case of Knobloch v. Royal Globe Insurance Company²⁰ in connection with “bad faith” practices by insurance carriers. If an insurance company refuses to reasonably settle a dispute within its policy limits (which thereby places the insured at risk of an excess judgment after trial), the plaintiff may partner with the defendant seeking to recoup its losses from the insurance company responsible for any verdict/judgment obtained in excess of the insured’s policy limits. The argument is that the defendant became personally liable as a result of the insurance company’s imprudent rebuff to settle the claim at an opportune time.

Accordingly, it is incumbent upon the insurance companies to protect the interests of their insureds, review comparable case values, and try to reach good faith settlements rather than place their insureds at risk of excess judgments above the policy amounts.

References

¹ 7 A.D.3d 346, 776 N.Y.S.2d 567 NY, 2004 WL 1066766, 2004 N.Y. Slip Op. 03903
² 120 A.D.3d 794 (2014), 992 N.Y.2d 80, 2014 N.Y. Slip Op. 05974
³ 109 A.D.3d 510 (2013), 970 N.Y.S.2d 286, 295 Ed.Law Rep. 734, 2013 N.Y. Slip Op. 05614
⁴ 121 A.D.3d 1038, 996 N.Y.S.2d 61, 2014 N.Y. Slip Op 07325
⁵ 2008 WL 1959953 (N.Y.Sup.) (Verdict and Settlement Summary) VerdictSearch New York Reporter Vol. XXV, Issue 45
⁶ 15 A.D.3d605, 791 N.Y.S.2d122, 2005 N.Y. Slip Op. 01486
⁷ 44 A.D.3d842, 844 N.Y.S.2d80 2007 N.Y. Slip Op 07833
⁸ 2014 N.Y. VerdictSearch New York Reporter Vol. XXXII, Issue 24
⁹ 2015 N.Y. VerdictSearch New York Reporter Vol. XXXII, Issue 41
¹⁰ 49 A.D.3d347, 852 N.Y.S.2d768, 2008 N.Y. Slip Op. 02201
¹¹ 2004 N.Y. VerdictSearch New York Reporter Vol. XXII, Issue 24
¹² 33 A.D.3d 789, 822 N.Y.S.2d 770, 2006 N.Y. Slip Op. 07470
¹³ 2013 N.Y. VerdictSearch New York Reporter Vol. XXXI, Issue 34
¹⁴ 2009 N.Y. VerdictSearch New York Reporter Vol. XXVI, Issue 45
¹⁵ 2013 N.Y. VerdictSearch New York Reporter Vol. XXXI, Issue 16
¹⁶ 106 A.D.3d 1062, 966 N.Y.S.2d 164, 2013 N.Y. Slip Op. 03823
¹⁷ 92 A.D.3d 516 (2012), 938 N. Y. S. 2d 535
¹⁸ 82 N.Y.2d 445 (1993), 626 N.E.2d 24, 605 N.Y.S.2d 208
¹⁹ 31 A.D.2d 12, 13, 294 N.Y.S.2d 547
²⁰ 38 N.Y.2d 471, 344 N.E.2d 364, 381 N.Y.S.2d 433