Posted on Apr 01, 2006
Jury awards woman $1.2M for lost kidney
Friday, March 31, 2006
By JOHN PETRICK
A Clifton woman who went in for surgery to remove a urinary tract blockage and lost a kidney when the doctor erred was awarded $1.2 million in damages Thursday by a state jury.
Jurors sitting in Paterson before state Superior Court Judge Anthony A. Graziano found that Dr. Daniel Rice of Clifton deviated from accepted standards of medical care and that his actions caused Doris Falcon's injuries during the June 3, 2002, surgery.
In what Falcon's defense lawyer said should have been a one-day procedure at General Hospital Center at Passaic, Rice accidentally cut through a major artery that supplies blood to one of the kidneys. That not only necessitated removing the kidney, but caused Falcon to lose about half her blood and left severe scarring, according to trial testimony. She was hospitalized for about 10 days.
The jury, which deliberated a little more than an hour following the three-day civil trial, awarded $1.2 million for Falcon's pain and suffering, disability and impairment and loss of enjoyment of life. They awarded an additional $25,000 to her husband for loss of his wife's services because of her injuries.
Falcon, a bookkeeper for a real estate company, wept as the verdict was read.
This is the second go-round for the case, with drastically differing results. In 2005, a jury found that Rice was in no way at fault for what happened and awarded Falcon nothing. Graziano – who presided over that trial as well – set aside the verdict, an unusual occurrence but within his authority.
Graziano felt jurors might have been misled by a diagram the defense lawyer used during closing arguments that was not completely representative of the facts, according to lawyers. An appeals court allowed the judge's setting aside of the verdict to stand and the case was remanded for a retrial. The latest jury was not allowed to know about the first trial -- or its outcome -- as that knowledge might have prejudiced their deliberations.
Defense lawyer Joseph Manning said he will appeal the latest verdict and that another pending appeal seeks to have Graziano recuse himself from the latest trial. If it succeeds, the results of the trial would be negated and there would have to be yet another trial, Manning said.
Falcon deferred to her lawyer, Roy Konray, who said they were satisfied with the amount of damages the jury arrived at.
"We got the right result this time," he said. "The jury had been misled," he said, adding that diagrams the defense used were not drawn to scale.
During the trial, Falcon testified that she lives in fear that an accident or illness will threaten the only kidney she now has left. She also said scarring from the operation is a constant reminder of the pain she went through, and makes her so self-conscious about her body that it has sometimes made marital relations difficult.
Rice testified that in Falcon's case, the cut artery feeding the kidney was much smaller than normal. He acknowledged he was using a new piece of surgical equipment for the first time during the procedure, and that he did not follow manufacturer's instructions to the letter.
They advised that specialized CAT scans and ultrasounds be performed before the surgery. Rice said he did not perform them because the equipment necessary was not readily available in the area of his Clifton practice.
He added, however, that those pre-operative procedures would not have necessarily prevented what happened. He added that Falcon's kidney was found to already have severe scarring, likely the result of a medical condition she had had since she was about 18.