New York Injury Cases Blog : New York Personal Injury Lawyer & Attorney : John Hochfelder Law Firm : Traumatic Injury, Wrongful Death

New York's appellate courts issued decisions in 10 cases in 2011 that approved pain and suffering damages in the sum of $3,500,000 or more.

The largest was $12,000,000 for a 24 year old woman who was paralyzed when a weight-lifting machine fell on top of her.

The courts affirmed the jury verdict in five of the cases, ordered a conditional reduction in four others and in one case ordered an increase.

Here are summaries of each of the 10 cases.

Barnhard v. Cybex Intl., Inc. (4th Dept. 2011) - $12,000,000 (reduced from $21,000,000) for a 24 year old physical therapy assistant from Buffalo rendered a C-5 quadriplegic when a 600 pound leg extension weight-lifting machine tipped over and crushed her neck. We discussed this case in detail, here.

Aguilar v. New York City Transit Authority (1st Dept. 2011) - $10,000,000 (reduced from $16,000,000) for a 45 year old Manhattan woman who sustained an above the knee amputation of her leg after she was run over by a bus. We discussed this case in detail, here.

Oakes v. Patel (4th Dept. 2011) [discussed by us here for the first time] - $9,600,000 (affirmed) in a medical malpractice case for a 42 year old excavation contractor who sustained a debilitating stroke and was left permanently paralyzed after a brain aneurysm was not properly diagnosed or treated and thereupon ruptured in a massive bleed.

Mr. Oakes was left with catastrophic neurological injuries and permanently in need of around the clock care. He is wheelchair bound, incontinent, wholly dependent in all activities of daily living and has severe cognitive deficits including findings of dementia and mental retardation.

Oakes v. Patel first went to trial in 2008 and resulted in a $2,000,000 pain and suffering verdict that plaintiff challenged as inadequate. The trial judge agreed and issued a decision ordering a new trial on damages unless the defendants stipulated to a $10,000,000 pain and suffering award. They declined and a second trial was held resulting in the $9,600,000 pain and suffering verdict that the appellate court affirmed.

The appellate court split 3-2 and defendants have been granted leave to appeal to the state's highest court - the Court of Appeals. As discussed by one of the dissenting judges, the defendants claim that the appellate court should  have addressed the propriety of the trial judge's five-fold increase in the pain and suffering damages award before addressing any issues raised regarding the second trial.

This is important because of the differences between ruling on excessiveness and inadequacy of damages. An appellate court ruling on excessiveness will reduce an award to the maximum figure it determines to be in the range of reasonableness. The same judges, on the same facts, might well arrive at a different figure when ruling on inadequacy because in that situation their job is to increase  the award to the minimum figure they determine to be in the range of reasonableness.

Sanders v. New York City Transit Authority (2d Dept. 2011) - $8,550,000 (affirmed) for a 41 year old man from Brooklyn who sustained a below-the-knee amputation of one leg, lost much of the big toe on his other leg, was rendered blind in one eye, and sustained a severed ear, head injuries and facial fractures, all as a result of being run over by a subway train. Plaintiff was found to be 30% at fault and his award reduced accordingly. We discussed this case in detail, here.

Mohamed v. New York City Transit Authority (2d Dept. 2011) - $5,000,000 (reduced from $11,500,000) for an 18 year old college student in Brooklyn who sustained a massive degloving injury of her leg when she was struck by a bus while crossing the street. Plaintiff was found to be 20% at fault and her award was reduced accordingly. We discussed this case in detail, here.

Angamarca v. New York City Partnership Hous. Dev. Fund, Inc. (1st Dept. 2011)- $5,000,000 (increased from $1,100,000) for a 32 year old carpenter who fell from a roof in Brooklyn and sustained skull fractures, a traumatic brain injury and fractures of his spine, wrist and leg. We discussed this case in detail, here.

Belt v. Girgis (2d Dept. 2011) - $5,000,000 (reduced from $15,000,000) for a 22 year old college student in Queens who was on a sidewalk when she was struck by a drunk driver. She sustained traumatic brain injuries and fractures of her temporal bone, femur, pelvis, ankle and clavicle. We discussed this case in detail, here.

Stewart v. New York City Transit Authority (1st Dept. 2011) - $4,700,000 (affirmed) for a 47 year old man who slipped and fell walking down subway stairs. He sustained several spinal fractures and herniated discs requiring laminectomies and fusion surgery. We discussed this case in detail, here.

Rivera v. City of New York (2d Dept. 2011) - $3,500,000 (affirmed) for the estate of a 10 year old girl who died in a Brooklyn hospital as a result of malpractice 4 1/2 hours after presenting with a severe asthmatic episode. We discussed this case in detail, here.

Hammond v. Diaz (2d Dept. 2011) - $3,500,000 (reduced from $4,000,000) for a 42 year old pedestrian struck by a car while he was crossing the street in Queens. He sustained spinal cord contusions near C-4 that left him with permanent hemiplegia. We discussed this case in detail, here.

There are many important verdicts involving pain and suffering damages that are now being appealed and that will be ruled upon by the appellate courts in 2012. As and when each of those cases is decided, we will, as always, analyze them here.

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Theresa Capwell was 33 years old and in good health when she started experiencing abdominal pain. She was diagnosed with pancreatitis (an inflammation of the pancreas) and admitted to Westchester Medical Center on September 18, 2000.

Within five days of her hospital admission, Theresa suffered acute respiratory distress and she was placed on a ventilator. On October 4th, she suffered a heart attack and brain damage from lack of oxygen (anoxic brain damage).

As a result of the anoxia, she was in a persistent vegetative state from which she never recovered and Theresa Capwell died 11 months later on September 10, 2001.

A medical malpractice lawsuit followed - Capwell v. Guneratne (Supreme Court, Westchester County, Index #14832/02) - in which plaintiffs (Theresa's husband and their three young daughters) claimed that her brain damage and death were caused by mistreatment of her pancreatitis and mismanagement of her respiratory condition.

Essentially, plaintiffs argued that the doctors at Westchester Medical Center failed to recognize that Theresa's problems stemmed from pancreatitis. Instead, they erroneously suspected and treated her for ovarian cancer. That misdiagnosis led to a cascade of ever worsening medical problems: Theresa got sicker and sicker and ultimately suffered from life threatening respiratory distress that led to a ventilator placement, a tension pneumothorax, a heart attack and anoxic brain damage. Then, death.

The jury returned a verdict in plaintiff's favor on December 12, 2008 finding that the hospital's malpractice had caused Theresa's injuries and they awarded $7,000,000 in damages as follows:

• pre-death pain and suffering - $3,000,000 (11 months)
• loss of consortium - $4,000,000 (11 months)

The defense made a post-trial motion challenging the verdict amounts as excessive. The plaintiffs countered that they were reasonable and asserted their own challenge for the jury's failure to award any wrongful death damages (i.e., economic losses sustained by the family members due to Theresa's death, such as the value of her household services and parental guidance). In a post-trial decision, the judge rejected the defense claim that the pain and suffering award was excessive but agreed that the loss of consortium award was excessive and should be reduced - to $1,000,000.

Also, the trial judge agreed with plaintiffs that there should be a new trial on the issue of wrongful death damages - that is, whether, in addition to causing Ms. Capwell's pre-death injuries, the malpractice also caused her death. If so, her family may be entitled to substantial additional economic damages, most significantly loss of parental guidance for the 7, 9 and 11 year old girls.

The defendant appealed. This week, in Capwell v. Muslim (the name of the case after some defendants were dismissed) (2d Dept. 2011), the appellate court affirmed the trial judge's decision.

Plaintiffs argued, successfully, that $3,000,000 is a reasonable sum for pain and suffering in this case because, as a result of the brain damage until her death 11 months later, Theresa Capwell was:

• confined to her bed
• lived out her days cared for by others in every aspect of her existence
• could not communicate with the outside world beyond facial expressions, hand squeezing, eye movements and following simple commands (like moving her feet)

The affirmance of a $3,000,000 pre-death pain and suffering for a period of 11 months is quite significant. Generally, pain and suffering awards in brain damage cases that are sustained in excess of $1,000,000 involve much longer periods of time, such as:

• Reed v. City of New York (1st Dept. 2003) - $5,000,000 ($2,500,000 past - 6 years, $2,500,000 future - 30 years); 43 year old; brain damage with progressive tissue loss in lobes
• Paek v. City of New York (1st Dept. 2006) - $4,300,000 ($1,300,000 past - 6 years, $3,000,000 future - 40 years); 36 year old; traumatic brain injury with severe cognitive dysfunction
• Weldon v. Beal (2d Dept. 2000) - $5,000,000 ($2,000,000 past - 12 years, $3,000,000 future - 15 years); 26 year old; anoxic brain damage
• Evans v. St. Mary's Hospital (2d Dept. 2003) - $1,800,000 ($800,000 past - 13 years, $1,000,000 future - 31 years); 28 year old; anoxic brain damage

Plaintiffs argued that while Theresa's period of suffering was much less than those in most cases involving multi-million dollar pain and suffering awards for brain damage, the distinctive factor in this case is that the 11 month period represented the remainder of plaintiff's life. Thus, they cited Cepeda v. New York City Health and Hospitals Corp. (1st Dept. 2003) in which $750,000 was held reasonable for an infant who died 12 days after suffering severe brain damage at birth due to medical malpractice. In that case, the court found that the fact that decedent experienced pain and suffering for most of her life was a factor in assessing the pain and suffering award.

Interestingly, neither party discussed the relevance of a recent case - Schaffer v. Batheja (2d Dept. 2010), about which we wrote in detail, here. In that case, the court approved a pre-death pain and suffering award of $2,500,000 for a woman in a coma who was only sporadically aware of her condition (she'd lapsed into a coma due to medical malpractice) for the 4 1/2 years until she died.The distinction between these two cases appears to be that the court determined that Ms. Capwell's level of awareness was much more significant than Mrs. Schaffer's.

The $1,000,000 loss of consortium award was based upon the fact that Scott and Theresa Capwell had enjoyed an idyllic 11 year marriage described by him as "the perfect life." They raised three young girls (Theresa was the homemaker, Scott the bread winner), enjoyed a very intimate relationship and were in "bliss." After the malpractice, for 11 months, their entire relationship consisted of his visiting her in the hospital, touching her face and kissing her in an effort to relax her, playing her favorite television shows and watching her deteriorate and die. The testimony in this regard was quite poignant and the appellate judges declined to disturb the trial judge's reduction of the jury award for loss of consortium from $4,000,000 to $1,000,000.

Inside Information:

• As to pain and suffering, the defense argued not only that $3,000,000 is excessive but also that Theresa was already suffering from numerous underlying health problems when she entered the hospital and that plaintiffs failed to prove she sustained new, different or exacerbated pain and suffering.
• Plaintiffs' law firm, Kramer, Dillof, Livingston & Moore, is widely recognized as one of the top medical malpractice firms in the state.
• The loss of parental guidance claims belonging to Theresa Capwell's three young daughters could add several million dollars more to the plaintiffs' recovery in this case. As much as $1,500,000 has been held reasonable by an appellate court for loss of a young child's parental guidance (Paccione v. Greenberg - 2d Dept. 1998). If the new jury in Capwell v. Muslim finds a causal connection between the malpractice and the death and determines to award parental guidance damages, the size of the awards in this case may break new ground.

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Tragedy struck on January 28, 2004 when four year old Nico Rivera died. He'd fallen ill on December 22nd with what appeared to be flu-like symptoms and over the next 4 1/2 weeks, his parents took him several times both to and from his pediatrician's office and the hospital. After his second seizure, Nico stopped breathing, his father resuscitated him and an ambulance returned him to the hospital but he died that day.

Autopsies indicated that the cause of death was acute myocarditis (an inflammation of the muscular wall of the heart).

Nico's parents sued (Rivera v. Greenstein, Supreme Court, Bronx County, Index # 26799/04) claiming that the pediatrician was negligent in her failure to have ordered heart-related tests that would have discovered the cardiac involvement and that had these tests been done Nico would have received the medical care he needed to survive.

On December 9, 2008, the Bronx County jury found that:

• the pediatrician was negligent in failing to order a cardiac evaluation and  certain tests (a CK-MB test, an EKG and a serum troponin test) and that these failures were substantial factors in causing Nico's death
• $3,000,000 was fair and just compensation for Nico's  4 1/2 weeks of pain and suffering

Here is a copy of the actual verdict sheet completed by the jurors.

The defense asked the judge to dismiss the complaint notwithstanding the verdict or, alternatively, to reduce the damages award because it was excessive. In his post-trial decision, the judge determined that the liability verdict was proper; however, he opined that the $3,000,000 pain and suffering award was "a classic case of a runaway jury" and that it should be reduced to $300,000. The judge cited no cases in support of the reduction.

On appeal this week in Rivera v. Greenstein (1st Dept. 2010), the entire case against the pediatrician has been dismissed on liability grounds. The appellate judges, in an unusually detailed opinion discussing complicated medical facts, ruled that there was no evidence that the doctor departed from accepted medical standards in failing to order the cardiac tests because:

1. the tests she did perform and Nico's symptoms could also indicate problems with other areas of his body and
2. all of the tests she did perform indicated a normal heart

Additionally, as a separate basis for dismissing the case, the appellate judges found that plaintiff had failed to establish proximate cause. In medial malpractice cases, this is often referred to as the "so what" defense - meaning that even if there was mistreatment the plaintiff must link up that negligence with the claimed injury in order to win at trial.

Here, plaintiff did not present evidence as to what care Nico should have received for his presumed heart condition that would have made a difference. The failure to show what the doctor could have done to save Nico had she discovered myocarditis meant that proximate cause was lacking and the verdict could not stand.

Here is PJI 2:70, the pattern jury instruction language New York judges use regarding the meaning of proximate cause.

Had the liability verdict been upheld, there is little doubt but that the $3,000,000 pain and suffering verdict would have been reduced and some figure closer to the $300,000 ordered by the trial judge would have been assessed by the appellate judges. 

Without in any way suggesting that the death of this young boy was not tragic or that he did not suffer a great deal, prior case law indicates clearly that $3,000,000 was excessive under the facts in this case in which during all or some of 4 1/2 weeks before his death, Nico's pain and suffering included:

• unable to sit, walk or stand on his own
• had to be fed by his parents
• did not talk
• cried often
• sustained two seizures

There is little case law as to pain and suffering damages analogous to this case; however, there have been a few cases (most of which we discussed here, here, here and here) that would give some guidance as to a sustainable figure for Nico Rivera's pre-death pain and suffering:

• Frenchman v. Westchester Medical Center (2d Dept. 2010) - $1,000,000 in medical malpractice case; 7 1/2 months of constant pain, morphine use and fear of death
• Dowd v. New York City Transit Authority (2d Dept. 2010) - $1,200,000 in a bus-pedestrian accident case; 18 minutes from impact to death; legs partially amputated, crush injuries, fear of impact and death
• Perez v. St. Vincents Hospital (2d Dept. 2009) - $800,000 in medical malpractice case; 30 minutes of choking on food
• Ramos v. Shah (2d Dept. 2002) - $450,000 in medical malpractice case; 10 days of pain from dehydration
• Johnson v. Queens Long Island Med. Grp. (2d Dept. 2000) - $1,200,000 in medical malpractice case; 12 weeks of stomach pain and vomiting, need for colostomy and seizures
• Hoehmann v. Siebkin (2d Dept. 2007) - $525,000 in medical malpractice case; 10 days of pain from massive inflammation of colon and multiple organ failure

In Nico Rivera's case, there was no evidence that he was aware of or feared his impending death, significant factors present in each of the foregoing cases.

Inside Information:

• Plaintiffs settled before trial for $150,000 their claims against a neurologist who'd treated Nico years earlier for a suspected neurogenic disorder and who examined Nico and ordered a brain MRI a few days before Nico died.
• There were two autopsy reports, both of which stated that on gross inspection the heart appeared normal.  One report (from the hospital) found microscopic evidence of focal myocyte necrosis (muscle cell death) on 2 of 34 slides and stated therefore that myocarditis was the cause of death. The other report (from the city's medical examiner) did not find myocyte damage but stated the cause of death was myocarditis based on the hospital slides.
• There was only one mention in any medical records as to pain Nico suffered from before he died - the day after the pediatrician first saw him, she noted that he appeared "uncomfortable when legs touched."
• Plaintiffs' attorney was Elsa Rodriguez Preston; the pediatrician was represented by Schiavetti, Corgan, DiEdwards, Weinberg & Nicholson (Carl Weinberg at trial and Samantha E. Quinn on appeal).

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On June 2, 2006 at 6:20 a.m., Helen Skillman was struck and killed by a New York City Transit Authority (NYCTA) bus backing up onto a sidewalk at the 165th Street terminal on Merrick Boulevard in the Jamaica section of Queens.

Here is the bus terminal where the accident took place:

Ms. Skillman, a healthy 79 year old, was on her daily trip from her home in Bayside to Merrick Boulevard where she fed and bathed her disabled aunt. After she got out at the terminal, Helen was struck as the bus backed up onto the sidewalk (a maneuver required when there was another bus parked next to it).

The driver never saw her before he struck twice - once in reverse and again when he moved forward and rolled over her. He stopped when passersby screamed.

Medics arrived within a few minutes and rushed their conscious but dying patient to the local hospital where she went into cardiac arrest. CPR was then performed but it was ineffective and she was pronounced dead.

In the ensuing lawsuit, Dowd v. New York City Transit Authority (Supreme Court, Queens County, Index # 20305/06), there were competing arguments as to fault for the accident:

1. Plaintiff (Skillman's surviving daughter, Deborah Dowd) claimed that the bus driver negligently reversed the bus despite a blind spot that prevented him from seeing any pedestrian who may have been behind the vehicle.
2. Defense counsel claimed that Skillman was at least partially at fault for walking into the path of a slowly backing bus that was visible and making a loud warning noise.

The jury found that the bus driver was 100% at fault and awarded $1,750,000 for pre-death conscious pain and suffering.

The defendants appealed claiming that:

• some comparative fault should have been assessed on the decedent's part and
• the pain and suffering award was excessive

Last week, in Dowd v. New York City Transit Authority (2d Dept. 2010), the liability verdict fully against the defendants was upheld; however, the pain and suffering award was conditionally reduced by $550,000 and now stands at $1,200,000.

In affirming the liability verdict against the bus driver, the court merely cited basic traffic laws (such as VTL Section 1211, which provides that a driver shall not back up unless he can do so with safety) and they stated that the jury's finding of fault was not contrary to the weight of the evidence.

As to the pain and suffering verdict, the court noted that the decedent was conscious and complaining of pain for 18 minutes - from the time the medics arrived until she went into cardiac arrest at the hospital.

In reducing the award by $550,000, the judges cited three relevant cases but before discussing them, let's take a look at the details of Ms. Skillman's injuries available to the judges but not mentioned in the decision, including:

• pre-injury terror (independent testimony established that she was aware of the bus bearing down on her and tried to get away and thus counsel asked the jury to include this as an element of the decedent's pain and suffering)
• she sustained partial amputations and crush injuries of both lower extremities, multiple fractures of both legs, her pelvis, back and ribs
• she also sustained an evisceration of her abdomen and massive bleeding
• she opened her eyes at the scene and said "help me" after which she remained awake during the entire ambulance ride while complaining of pain

Here are the three three cases cited in the decision as to the propriety of substantial awards for short periods of pre-death pain and suffering:

1. Perez v. St. Vincents Hosp. & Med. Ctr. of N.Y. (2d Dept. 2009) - $800,000 (reduced from a $1,500,000 jury verdict) for death following about 30 minutes of choking on food [discussed by us last year, here, in an article on substantial awards for short periods of pre-death pain and suffering]
2. Twersky v. Busche (2d Dept. 2007) - $1,000,000 (reinstating a jury verdict in that amount after a trial judge had reduced it to $650,000) for the death of a 47 year old pedestrian struck by a van who sustained massive injuries including a fractured femur, collapsed lungs and internal bleeding and who was conscious and in pain for 2 1/2 hours until anesthetized for surgery
3. Ramos v. LaMontana Moving & Storage, Inc. (1st Dept. 1998) - $900,000 (increased from the trial judge's reduction of a $3,000,000 verdict to $250,000) for 15-30 minutes of pain following a motor vehicle accident in which the decedent sustained excruciating crush injuries

Two other relevant cases that were not mentioned by the court are:

• Fa-Shun Ou v. New York City Transit Authority (2d Dept. 2003) - $365,000 for a woman struck by bus who for 15-30 minutes held her friend's hand and moved her lips before death from skull fractures and cerebral contusions
• McAndrews v. City of New York (2d Dept. 2002) - $1,000,000 for a 47 year old in car accident with multiple pelvic, rib and humerus fractures and several lacerated internal organs who was conscious and awake at the scene for about 40 minutes but died on the operating table 1 1/2 hours after the accident [decision reversed on other grounds by Court of Appeals]

Inside Information:

• The jury also awarded $250,000 in pecuniary, or economic, damages, an amount that was not challenged on appeal (there was some testimony as to the decedent's economic contributions to her daughter and grandchildren but it was minimal given that decedent was retired with a small pension).
• The defendants argued that evidence relating to the NYCTA's internal policies as to when to use spotters (employees who stood behind buses to help drivers back up) should not have been allowed but the appellate judges found that it did not result in an unwarranted verdict.
• The defense presented no witnesses in the damages portion of the trial while plaintiff called three (the EMT, a forensic pathologist and the decedent's daughter).
• Plaintiff's closing argument included a statement that if the jury were to assign even 1% of the fault to the plaintiff then "we can all go home tonight, open our windows, and we are going to hear people laughing at the New York City Transit Authority." The defense argued on appeal that this and other remarks were so inflammatory that they tainted the jury and required a new trial; however, this is one of those "remaining contentions" that the appellate judges stated at the end of their opinion are "without merit."

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On June 11, 2001, Gerald Frenchman, who’d been asymptomatic and in generally good health, underwent routine cardiac testing which revealed coronary artery blockage and valve disease. A triple coronary bypass surgery was successfully done right away but a few months later, he was diagnosed with right sided heart failure. On October 4th, Mr. Frenchman underwent a tricuspid valve replacement. Again, the heart surgery was successful.

Here is what the heart looks like before and after a typical bypass surgery:

Three weeks after the second heart surgery, Mr. Frenchman required a feeding tube because he was having difficulty breathing and swallowing and needed adequate nutrition.

A percutaneous endoscopic gastrotomy/jejunostomy (PEG/PEJ ) tube, like this, was inserted:

The doctors expected that Mr. Frenchman would recover from his heart surgery, regain nutritional health and live a long and natural life. Unfortunately, he did not and Mr. Frenchman died on July 6, 2002 after 7 ½ months at another hospital.

Mr. Frenchman’s widow, Cynthia, sued the hospital where he underwent his heart surgeries, Westchester Medical Center ("WMC"), as well as her husband’s heart doctors. She claimed that they caused his death by using a type of feeding tube that was contraindicated in view of the fact that Mr. Frenchman was suffering from ascites - excess fluid in the space between the tissues lining the abdomen and abdominal organs (the peritoneal cavity).

Plaintiff alleged that the tube failed resulting in a stomach perforation, leakage and a whole host of ever-growing difficulties (such as the placement of a colostomy bag) and diseases (such as peritonitis and pneumoperitoneum) from which her husband suffered greatly and never recovered.

Mrs. Frenchman also claimed that after the feeding tube caused problems her husband’s care was further mismanaged in that several maladies over the ensuing weeks went undiagnosed and he was prematurely discharged from WMC.

Defendants claimed that Mr. Frenchman’s deterioration was due to chronic heart and respiratory problems not attributable to the feeding tube and that he somehow sustained the stomach perforation after he left their care.

On January 3, 2008 the case of Frenchman v. Westchester Medical Center (Supreme Court, Westchester County, Index # 02300/03) came to trial and the jury found that WMC and two of its cardiac surgeons had been negligent in their treatment of Mr. Frenchman from October 3 through November 20, 2001 (when they discharged him from WMC to a rehabilitation center where he was found to be in critical respiratory distress and immediately sent to White Plains Hospital).

The jurors awarded pre-death pain and suffering damages in the sum of $1,000,000 (7 ½ months).

Now, the jury’s findings as to liability and damages have been upheld in Frenchman v. Westchester Medical Center (2nd Dept. 2010).

Unfortunately, the appellate court decision did not discuss any of the pain and suffering details in this case. As to the $1,000,000 pain and suffering award, the decision merely states that it does not deviate materially from what would be reasonable compensation and no prior cases are mentioned.

Here are the details as to Mr. Frenchman's pain and suffering during his 7 1/2 months at White Plains Hospital:

• constant pain requiring morphine drip
• need for colostomy bag
• long term placement of nasogastric tube
• multiple surgical procedures including ulcer debridements
• emergency surgery the day after discharge from WMC to repair stomach perforation
• multiple respiratory issues requiring intubation
• fear of impeding death

The decision in Frenchman v. Westchester Medical Center also failed to discuss any of the prior decisions that dealt with pre-death pain and suffering damages in similar situations. We have previously discussed in some detail the important appellate cases that have ruled on such damages when the decedent was comatose or when very short periods of time transpired before death.

Mr. Frenchman, though, was neither in a coma nor did his death come very shortly after the malpractice; instead, his pain and suffering lasted 7 1/2 months. Here are two of the cases that the attorneys cited which the judges could and should have discussed in explaining why they sustained the jury's $1,000,000 verdict for pre-death pain and suffering:

• Alston v. Sunharbor Manor, LLC (2nd Dept. 2008) [cited by plaintiff] - $1,000,000 trial judge's reduction from $3,000,000 sustained; 62 year old wheelchair bound man in nursing home left unattended for hours outside in 95 degree heat and intense sunlight burned over 10% of his body, rushed to hospital and died 30 days later after great pain, multiple skin debridements and overall deterioration
• Hoehman v. Siebkin (2nd Dept. 2007) [cited by defendant] - $525,000 (reduced from $750,000 jury verdict); 69 year old man admitted to hospital with pneumonia, developed inflammation of his colon which led to systemic toxicity, multiple organ failure and death nine days later

Inside Information:

• Plaintiff initially sued not only the hospital and the cardiac doctors but also three other doctors - two of whom she dropped from the suit and the third of whom, the attending gastroenterologist (who inserted the feeding tube), was exonerated at trial. The jury apparently upheld his claim that his role was limited and did not involve monitoring. Even if the tube was contraindicated, he asserted he should have been (but was not) called back by the attending doctors if her were needed.
• As set forth on the verdict sheet, the jurors also awarded damages for Mrs. Frenchman’s loss of services ($150,000), medical expenses ($335,000), economic losses ($220,000) and funeral expenses ($15,000). All of these damage awards were upheld by the appellate court.
   

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It was a beautiful summer day on July 20, 2001, still light out around 7 p.m., when 15 year old Geremy McConnell was riding his bicycle on Hyland Boulevard, just north of Donley Avenue, in Staten Island. He was headed towards his cousin’s house but was killed instantly when the right rear wheel of a 40 foot long New York City Transit Authority bus ran over his head.

Tragedy ensued when there was a collision between a bicyclist and a bus:

In the ensuing wrongful death lawsuit, Geremy’s widowed 48 year old mother, Geraldine McConnell, claimed, through the testimony of an expert accident reconstructionist, that the bus driver should and could have seen Geremy if he had looked in his right side mirror. The expert also concluded that the bus driver failed to leave enough space between his bus and a car in the parking lane that he was trying to maneuver around when the collision occurred.

Bicyclists often ride to the right of big buses, like this:

The evidence established that Geremy was riding his bike five inches from the right side of the moving bus attempting to ride between the bus and a parked car. Therefore, the defense contended, Geremy lost control of his bike in his own attempt to maneuver around the parked car and that he alone was responsible for the tragic accident.

After nine days of trial, on January 22, 2008, a Richmond County jury determined that the bus driver was 100% at fault for the accident. The jurors also determined that Geremy was negligent but that his negligence was not a proximate cause of the accident. They then awarded Geremy’s mother $520,000 for her economic loss resulting from his death.

Last week, in McConnell v. Santana (2nd Dept. 2010), the appellate court ruled that it was logically impossible for the jury to find that Geremy was negligent without also finding that his negligence was a proximate cause of the accident. Therefore, the judges ruled that there must be a new trial solely on the issue of whether Geremy was at fault in the happening of the accident and whether such fault was a proximate cause of the accident.

There are many situations in which a finding that a plaintiff was negligent will not require the additional finding that his fault was a significant factor in causing an accident (for example, when a plaintiff driver is found negligent for failing to see a defendant driver but plaintiff’s negligence is not a proximate cause of the accident because of defendant’s excessive speed). In this case, though, the appellate judges found otherwise because the issues of negligence and proximate cause were so inextricably interwoven.

The new jury will not address the issues of whether the bus driver was negligent or the damage award was a proper amount. Those findings stand; however, if the new jury finds that Geremy’s negligence was a substantial factor in causing the accident, then they will be required to apportion the fault between the bus driver and Geremy, thus reducing the award to Geremy’s mother.

The damages award was based solely on the economic loss sustained by Mrs. McConnell. Under New York’s wrongful death laws (unlike many other states), there are no provisions for the recovery of money damages for loss of love or affection.

Under EPTL 5-4.3, damages in wrongful death cases are limited to “pecuniary” losses – essentially, the economic losses, such as loss of economic support, inheritance and/or household services, sustained by a decedent’s family members.

Plaintiff’s expert economist testified that as a high school graduate Geremy would have earned a total gross income of $1,850,000 by the time he was 49 years old when his mother would have reached her life expectancy of 82 years. And Mrs. McConnell testified that Geremy had helped around the house with chores and contributed financially to her ($15 to $30 per paycheck) from his part-time jobs at a church and a museum. She needed his support as she'd lost both her husband and her job at White Castle making $6.50 an hour.

Geremy was clearly a loving and devoted son who helped his mother with chores and whatever money he could.

The defense argued on appeal that $520,000 was unreasonably excessive because:

1. there was insufficient evidence that the 48 year old Mrs. McConnell would, absent the accident, have inherited anything from Geremy
2. the economist projected only $26,000 for the loss of Geremy's household services, and
3. while it was reasonable to expect Geremy would have contributed some money to his mother over her lifetime, there was no basis to assume he’d have given her $520,000 over the next 34 years as that represented an excessively unrealistic portion, 28%, of his projected gross earnings.

The appellate court implicitly rejected the defense arguments in ruling, without explanation, that the $520,000 jury award did not deviate from what would be reasonable compensation and therefore that finding will apply to the retrial.

Inside Information:

• The parties stipulated that the right rear wheel of the bus went over Geremy’s head, resulting in his death. The jury made no award for pre-death pain and suffering and no award for pre-impact terror, findings that clearly had no evidentiary basis and which were not appealed by the plaintiff.
• A passenger in the bus testified for the defense that just before hearing a thud he’d seen a bicyclist moving “very fast” and at “a crazy angle toward the bus.” On cross-examination, though, the witness admitted that at the time and for years he’d been on a powerful prescription medication (Haldol) to control “hearing voices” and that the drug caused memory loss. He also admitted he suffered from extropia and had limited vision.

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On October 3, 1996, Edith Schaffer, then 67 years old, voluntarily admitted herself to a small psychiatric hospital in Ossining, New York, for an episode of depression and anxiety. The next day, she suffered the first of a series of seizures and was sent to a nearby community hospital for a neurological consult and tests.

Mrs. Schaffer's tragic odyssey began here:

Two days later, due to an undiagnosed critically low serum sodium level (hyponatremia), Mrs. Schaffer lapsed into a coma where she remained until her death on June 6, 2001.

Her husband sued the hospitals and various doctors and on November 6, 2008 a Westchester County jury found that a by-then deceased doctor at the community hospital was fully liable for Mrs. Schaffer’s injuries and death in that he failed to appreciate the significance of her condition which was easily reversible.

We discussed this case, Schaffer v. Stony Lodge Hospital, here, back in January 2009. The trial judge denied the defendant’s motion to set aside the verdict. Now, a decision has been issued on the appeal and the judges drastically reduced the pain and suffering award from $5,000,000 to $2,500,000.

The appellate court decision in Schaffer v. Batheja (the name of case after some defendants were dismissed) does not mention any of the facts upon which the judges relied in reducing the pain and suffering award except for stating that “Mrs. Schaffer was only sporadically aware of her condition” during the 4 ½ years she lay in a coma.

In cases where a plaintiff is comatose or in a vegetative state, her level of consciousness, if any, will be the key to whether and the extent to which a pain and suffering award will be upheld.

Under the leading case of McDougald v. Garber (Court of Appeals,1989), to support a pain and suffering award plaintiff had to prove that Mrs. Schaffer had “some level of awareness.”

We have dug up the underlying facts and arguments as to consciousness that were brought out at trial. Each side relied upon different aspects of the following evidence:

• the testimony of doctors and nurses who treated Mrs. Schaffer over the years
• the testimony of family members who came to visit
• the opinions of medical experts
• notations in the voluminous medical records

Plaintiff argued that Mrs. Schaffer was well aware of her condition and experienced pain in view of evidence that she:

• abducted her shoulder and flexed her upper extremities in response to nail bed pressure
• opened her eyes on occasion and followed people moving in her room with her eyes
• cried and tears came to her eyes often when her family came to visit
• sometimes moved her head on command

The defense argued that there was insufficient proof that Mrs. Schaffer had any level of awareness from the time she lapsed into a coma until her death, based on evidence that she:

• was comatose at all times
• had no ability to communicate or consciously sense any pain
• reacted to painful stimuli only reflexively
• was in a persistent vegetative state in which eye openings can occur when one is not at all awake

As to the amount of the pain and suffering verdict, the defense argued, successfully, that $5,000,000 was unreasonably excessive and that there should be a drastic reduction. Both sides cited numerous cases to support either a reduction of the award or its affirmance; however, the appellate judges cited none.

Here are the main relevant cases, all except one involving pre-death pain and suffering:

• Ramos v. Shah (2nd Dept. 2002) - $450,000 for several days in coma before death from cardiac arrest due to medical malpractice
• Maracle v. Curcio (4th Dept. 2005) - $125,000 affirmed for 40 months of pain and suffering after fall left woman in vegetative state (she never communicated any indication of pain before death)
• Weldon v. Beal (2nd Dept. 2000) - $5,000,000 for 26 year old woman with severe brain damage from medical malpractice in semi-comatose state for 12 years [not a death case - $2,000,000 past - 12 years, $3,000,000 future - 15 years]
• Jump v. Facelle (2nd Dept. 2002) - $1,300,000 upheld for eight months of pre-death pain and suffering, including persistent abdominal infection, several surgeries and permanent colostomy and bed sores.
• Walsh v. Staten Island Obstetrics & Gynecology Associates, P.C. (2nd Dept. 1993) - $650,000 affirmed for infant in vegetative state for eight years before death due to medical malpractice

Mrs. Schaffer’s husband, Paul Schaffer, was awarded $3,000,000 by the jury for his loss of services claim meant to compensate him for his economic loss (i.e., the monetary value of his wife's services as a homemaker) and his loss of companionship or consortium.

The roles of women in the home and the workforce have changed in many ways over the years.

The law recognizes that physically uninjured spouses may suffer losses when their injured husbands or wives) can no longer assist with tasks in the home or provide the love and comfort previously enjoyed. When these factors are present, judges instruct jurors (PJI 2-315 and PJI 2-316) that they should render monetary verdicts in favor of the uninjured spouse.

The appellate court reduced Mr. Schaffer's $3,000,000 jury award to $500,000 simply stating that there was “limited proof as to the value of the services rendered" by Mrs. Schaffer to her husband.

Our review of the underlying facts indicates that the appellate judges were influenced by the fact that plaintiff offered no evidence as to the value of his late wife’s homemaker services loss and simply argued that his $3,000,000 award should be upheld in full in light of a 40 year marriage and his dutiful daily visits until his wife’s death. The defense argued persuasively that Mr. Schaffer’s award should be reduced significantly in view of evidence that the marriage had long been strained with no sexual relations for the 10 year period before the coma.

Inside Information:

• Nurain Batheja, M.D. the internist at Phelps Hospital against whom the jury assessed all of the liability, died in 1997, less than a year after Mrs. Schaffer lapsed into a coma. He was never deposed in the ensuing lawsuit.
• Before trial, a $1,750,000 settlement was reached with defendants Phelps Hospital and one of its doctors and plaintiff dropped his claims against Stony Lodge and all other defendants except Dr. Batheja. Under New York’s General Obligations Law Section 15-108, therefore, the $3,000,000 appellate award will be reduced by the $1,750,000 pre-trial settlement to $1,250,000.
• The appeals court also upheld $557,485 in medical expenses but there are Medicare and Medicaid liens related thereto

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On March 1, 2000 at about 6:30 p.m., New York City Police Officer Luis Rivera was patrolling a high crime area in the Bronx. He was with members of his special narcotics unit and he was acting undercover, in plainclothes. Noticing four men acting suspiciously at the entrance to a four story building on Boynton Avenue, Rivera approached the building and pushed open the door.

Here is 1045 Boynton Avenue, Bronx, New York, where events unfolded that fateful night:

As he entered and after identifying himself as a police officer, the four suspects ran away but Rivera caught Malcolm Ferguson by the arm. Continuing to run away, Ferguson dragged Rivera but when they reached a stair landing and tumbled to the ground Ferguson made it no further and died right then and there.

The 23 year old unarmed Malcolm Ferguson had been shot in the head point blank by Police Officer Rivera while the two of them struggled on the ground.

Rivera said he pulled his gun because he feared for his safety given that it was pitch black in the stairwell and he didn’t know where the other three men were. The officer claimed he hadn’t intended to shoot Ferguson, that the gun went off by accident when he had to grab Ferguson with his gun hand that he hadn’t been able to re-holster due to the struggle.

The Bronx County District Attorney conducted a full investigation and concluded that the evidence supported Officer Rivera's statement that the shooting was accidental. Nonetheless, Mr. Ferguson’s mother, Juanita Young, brought a wrongful death lawsuit against the officer and the city. After hearing from the officer and his colleagues, the Bronx jury ruled that excessive force had been used and therefore Ferguson’s estate was entitled to damages in the sum of $3,000,000 for pain and suffering and fear of impending death.

Additionally, the jury awarded $7,000,000 in punitive damages finding that the police officer’s actions were wanton and reckless.

In a post-trial decision, the trial judge vacated the pain and suffering award and ordered a new trial as to the punitive damages award.

This week in Ferguson v. City of New York, the appellate court ruled as follows:

1. the $3,000,000 pain and suffering award dismissal by the trial judge was affirmed and
2. the punitive damages award was reduced from $7,000,000 to $2,700,000.

As we’ve discussed before, here and here, to support an award for pre-death pain and suffering, there must be proof that the decedent was conscious for some period of time after the underlying incident. Without pre-death cognitive awareness of pain, the courts have consistently held that there can be no sustainable damages for pain and suffering. In other words, there has to be proof that the decedent actually suffered pain and there is no such proof possible when death is instantaneous.

In Malcolm Ferguson’s case, the defense prevailed on their claim that there should be no pre-death pain and suffering award because the decedent died within 60 seconds (according to the coroner) and there were no facts indicating he was conscious for even a moment after the shooting or that he groaned or in any way was aware of his impending death.

The appeals court rejected plaintiff’s claim that the award should be sustained because Malcolm feared his impending death from the moment the chase and struggle began. The evidence indicated that Rivera pulled his gun only a moment before the shooting and Ferguson never even knew the gun had been pulled, was inches from the back of his head and he was about to be shot. He never saw it coming and thus there were no facts to support a claim of fear if impending death.

The court did not discuss but implicitly distinguished and rejected a case relied upon by the plaintiff – Lubecki v. City of New York (1st. Dept. 2003) in which a $3,000,000 pre-death pain and suffering award was affirmed in another type of excessive force by police officers case. There, the officers shot a bank robbery hostage after a standoff. There was evidence that the decedent turned her head and tried to speak to her sister as she lay mortally wounded but before she was pronounced dead an hour later. Additionally and perhaps most critically, before the three gunshots (first to her thigh, then her ankle and finally her chest), the appellate court noted that the decedent experienced pre-impact terror which, along with the significant injuries sustained before her death, supported the pain and suffering award in Lubecki v. City of New York.

As to punitive damages in Ferguson v. City of New York, the appellate court found that there was sufficient evidence for the jury to conclude – as they did – that the officer’s actions were wanton, reckless or malicious. It was therefore within the jury’s power to render an award of punitive damages; however, the court held that $7,000,000 was excessive and it ordered a reduction of the punitive damages to $2,700,000.

Inside Information:

• The jury in Ferguson v. City of New York also awarded about $317,000 in economic damages to the decedent’s mother with whom he had resided. There was credible evidence that Malcolm had contributed $50 per week to help support his mother and that he helped her with household chores and that he’d have continued to do both for 25 more years.
• Ferguson’s death was just a month after the acquittal of police officers in the notorious Amadou Diallo case (the civil suit with respect to which later settled for $3,000,000). Five days before his death, Malcolm had been among demonstrators protesting the acquittal and spent the night in jail for disorderly conduct and resisting arrest.
• In a separate matter, Malcolm Ferguson's mother, Juanita Young, won $450,000 in pain and suffering damages for wrist injuries caused by the city police. As we discussed, here, Ms. Young was injured when she fell down stairs in 2003 while being arrested in connection with her eviction from her apartment.
   

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It was a hot summer day – a great one to be off the city streets and in a cool swimming pool. So, on July 21, 1995, Jeremy Williams, an 18 year old high school senior, went to Betsy Head Pool in Brooklyn. Part of the New York City Parks department system, the pool is huge – 300 feet long and 165 feet wide, holding up to 1,000 swimmers.

Here is the Betsy Head Pool:

At about 6 p.m., lifeguards were alerted to an emergency, a swimmer in trouble. They immediately jumped in and in less than 30 seconds found Jeremy submerged at the bottom 4 ½ feet below the surface. He appeared to be unconscious and not breathing. After frantic mouth-to-mouth resuscitation, Jeremy was rushed by ambulance to the hospital. He was unconscious but had a heartbeat. He was placed on life support but died there from respiratory failure 11 days later.

It was later determined that Jeremy drowned because while in the pool he had an epileptic seizure. He’d begun to have seizures two years earlier in which he’d stare, shake and fall to the floor with his whole body shaking violently. These grand mal seizures would usually last a minute or so. Jeremy was prescribed anti-convulsant drugs but hospital tests showed clearly that he hadn’t taken his medication on that fateful day before going swimming.

Jeremy’s mother sued the city claiming that lifeguards were negligent and should have observed her son in distress in time to rescue him. At trial in 2006, there was expert medical testimony that Jeremy would have been afloat for at least a minute in the throes of a convulsive episode consisting of violent shaking of his arms and legs before he finally sank to the bottom of the pool.

A grand mal seizure often begins with a cry and loss of consciousness, then stiffening and jerking of limbs, before stopping, like this:

The city contended that its lifeguards acted properly, if not heroically, and that in any event, it was Jeremy’s failure to take his medication that should be deemed the sole cause of his drowning.

The jury found that the city was 25% at fault with Jeremy himself bearing the lion’s share of responsibility, 75%, due to his failure to take his anti-seizure medicine.

Mrs. Williams was awarded $23,000 for her economic damages (the amount Jeremy would have contributed to household expenses but for his death) but when it came to Jeremy’s pain and suffering the jury declined to award anything at all. Zero.

Both sides appealed. The city claimed that (a) its 25% share of liability was too high and it should be deemed completely free of any fault and (b) an award of zero for pain and suffering was proper  because Jeremy was comatose and unaware of his condition. Plaintiff claimed that (a) the failure to award damages for pain and suffering was against the weight of the evidence and (b) the jury should not have assessed Jeremy with any portion of fault.

In Williams v. City of New York (2nd Dept. 2010), the appellate court judges agreed with the plaintiff’s contention that the jury was wrong to award no pain and suffering damages . The judges concluded that Jeremy Williams had some awareness during the 11 days before he died based on proof that Jeremy:

• squeezed a nurses’ hand upon request,
• mouthed words,
• opened his eyes spontaneously, and
• responded to tactile and painful stimuli.

These specific findings of cognition, the court held, meet the test set forth in the leading case of McDougald v. Garber (1989), where New York’s highest court ruled that pain and suffering damages may be awarded only when it’s been demonstrated that an injured person has “some level of awareness” regarding his condition or pain. Therefore, the court in Williams v. City of New York directed that pre-death pain and suffering damages should have been awarded and a new trial must now held to determine the amount.

I expect that the city will vigorously contest the amount of damages and seek to convince the new jury that only a minimal amount should be awarded whereas plaintiff will seek millions. Whatever sum the new jury awards will be reduced by 75% because the first jury’s apportionment of liability 75% to Jeremy and 25% to the city has been affirmed on appeal.

We will follow this case closely and should the new verdict be challenged by either party as too little or too much, the following decisions will likely be relied upon by the trial judge or a new appellate bench:

• Johnson v. Jacobowitz (2nd Dept. 2009) – No damages for a 70 year old’s pre-death pain and suffering in a medical malpractice case where death occurred five days after surgery from which the decedent never woke up.
• Maracle v. Curcio (4th Dept. 2005) - $125,000 for pain and suffering where a woman fell down stairs and thereafter did not communicate any indication of pain. Death resulted 40 days later during which time the decedent was in a persistent vegetative state but had some level of awareness.
• Ramos v. Shah (2nd Dept. 2002) - $450,000 (reduced from $900,000) for the estate of a two year old in a medical malpractice case where the infant’s dehydration was untreated by a doctor, he went into hypovolemic shock the next day, suffered a heart attack and lapsed into a coma before dying 10 days later. An expert testified as to the boy’s pain from dehydration and his father testified as to his son’s complaints of pain.
• Weldon v. Beal (2nd Dept. 2000) - $2,000,000 for a 25 year old woman’s 12 years of pain and suffering after medical malpractice caused severe brain damage and left her in a near-comatose state. This was not a death case.

Undoubtedly, the pain and suffering award in Williams v. City of New York will also be affected by the outcome of the pending appeal in Schaffer v. Stony Lodge Hospital, a medical malpractice case we discussed, here. A Westchester County jury awarded the estate of Edith Schaffer $5,000,000 for her pain and suffering while in a coma for 4 ½ years before she died. The defendant has appealed arguing that the verdict is utterly excessive and if not set aside it should be drastically reduced.

We will, of course, report on the outcome of Schaffer v. Stony Lodge Hospital just as soon as it is decided by the appellate court. And we will see how a new jury assesses damages in the new trial in Williams v. City of New York.
 

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We wrote about this tragic case last August, here, and can now report that the estate of Michael Colombini has settled all of the claims arising out of his death in 2001. Bearing full responsibility, Westchester County Health Care Corp. (the formal name of Westchester Medical Center in Valhalla, New York) has agreed to pay $2,900,000.

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A significant element of damages in New York wrongful death personal injury lawsuits is pre-death pain and suffering. This can be very difficult to prove (as opposed to other elements such as the decedent’s future lost earnings).

Here’s Pattern Jury Instruction 2:320 which is what New York judges tell juries about pain and suffering in death cases:

• “As to the claim for damages sustained by [the decedent] before he died, plaintiff is entitled to recover such sum as you find will fairly and justly compensate for the pain and suffering actually endured by the decedent during such time as he was conscious from the moment of injury to the moment of death.”

In the case of someone who clearly suffers a great deal over a long period of time before he dies (for example a burn victim who undergoes many painful procedures over many months before dying, or a malpractice victim who has medical complications, pain and extensive suffering for years before death), the pre-death conscious pain and suffering claim is apparent and may be quite substantial (in the millions of dollars).

The difficult cases are those like the two that were ruled on recently. One involved a hospital patient who choked to death on his lunch; the other a woman walking down the street who was struck by a falling tree.

In each case, death resulted in a very brief time after the negligence. In one, it was only seconds later; in the other, it was a half-hour or so.  In both, substantial jury awards were made for pain and suffering -  in one case the appellate court affirmed $350,000 for a few seconds of pain and suffering; in the other it approved $800,000 for a half hour of pain and suffering.

Perez v. St. Vincent’s Hospital dealt with the death of a man who presented to the emergency room with urinary difficulties. Anastacio Perez was diagnosed with alcohol withdrawal and consequent dehydration and admitted for treatment. Since he had previously suffered throat cancer and could not eat sold food, his doctors issued orders that he was to receive no food or drink by mouth.

Several days later, though, on the day of his scheduled discharge home, when his condition had improved, Mr. Perez was given solid foods for lunch (chicken and cucumber) which he started to eat. He choked on the food as one of his sons came to visit him.

A sign like this on his hospital door (NPO means nothing by mouth) may have saved Mr. Perez:

What followed was a frantic scene in which Mr. Perez clutched his throat, flailed his arms and had a look of terror in his eyes. Attempts to save him failed and he was pronounced dead an hour or so later. The jury returned a verdict for pre-death pain and suffering in the sum of $1,500,000 and on appeal the court reduced that to $800,000.

The defense argued that certain hospital records indicated the choking incident began 35 minutes before death was pronounced while plaintiff argued that the period was as much as an hour and a half (based on when a family member said the incident began). Medical experts testified trying to calculate the period of suffering based on known facts, the autopsy report and certain assumptions.

In any event, it was clear that whether Mr. Perez choked to death over a 15 minute period, 35 minutes or 90 minutes, it was a gruesome scene and a horrific way to die. And the appellate judges agreed in determining that $800,000 was reasonable for pre-death pain and suffering.

In Segal v. City of New York, 52 year old Hinda Segal’s skull was crushed and she was killed by falling tree limbs. Walking with her daughter on a Brooklyn street one fine summer morning in July 2003, a storm broke out and overhead tree branches broke off and hit Mrs. Segal in the head knocking her to the ground. Her daughter, Shifra Berger, had been walking with her hand in hand. They saw the tree falling and Shifra saw her mother try to get the branches out of her face, heard her mother call out, saw her mother get hit and felt her mother squeeze her hand as she lay dying on the sidewalk.

Mrs. Segal never had a chance; a warning like this might have saved her life:

An ambulance came quickly but Mrs. Berger was pronounced dead 45 minutes later. Cause of death: skull fracture with avulsion to her head and massive blood loss.

At trial, negligence against the city was proven (and affirmed on appeal) because it failed to discover that the tree was rotted and could fall and it failed to take any steps to prevent this type of foreseeable incident.

Shifra Berger (decedent’s daughter) suffered a huge emotional loss, succumbed to severe post-traumatic stress disorder and the jury returned a verdict of $1,750,000 for her emotional distress (modified downward by the appeals court to $1,250,000)

In an attempt to establish pre-death pain and suffering, plaintiff called upon Lone Thanning, M.D. , a forensic pathologist, who testified that Mrs. Berger survived for a mere 8-10 seconds (half being pre-impact terror and half being post-impact consciousness). The city’s expert, Adhi Sharma, M.D., an emergency medicine specialist, testified that there was no evidence of any pre-impact terror or any conscious pain and suffering at all after Mrs. Berger was struck. He concluded that Mrs. Berger’s squeezing of her daughter’s hand was not willful but merely reflexive.

The jury rejected the city’s expert and found that Mrs. Berger had indeed suffered great pain and suffering and pre-impact terror, if only for a few seconds. For conscious pre-death pain and suffering the jury awarded $350,000 and that sum was upheld as reasonable by the appellate judges. They ruled that the evidence was sufficient for the jury to award damages and that the jurors were free to accept one expert’s opinion and reject the other’s.

The $350,000 verdict for pain and suffering in Segal v. City of New York, for less than 10 seconds of pre-death consciousness, appears to break new legal ground.

Here are the other important appellate court New York injury cases ruling on brief periods of pre-death pain and suffering (none of which dealt with less than a couple of minutes of pain and suffering):

• Glaser v. County of Orange (2008) - $350,000 for 2-3 minutes after a truck’s axle struck decedent in a car accident
• Givens v. Rochester City School District (2002) - $300,000 for five minutes of pain after decedent was stabbed and he then lost consciousness and was pronounced dead within the hour
• Gersten v. Boos (2008) - $350,000 for 5-10 minutes of pain after a car accident and some indications of responsiveness while in a coma over the next 11 days before death
• Ramos v. Shah (2002) - $450,000 for a day of pain from dehydration and some level of consciousness in a coma for several days before death
• Bennett v. Henry (2007) - $400,000 for about 20 minutes of pain from a pedestrian knockdown car accident before death was pronounced 10 hours later

No prior reported appellate decision has sustained an award for mere seconds of pre-death pain and suffering. Our review of the record and conversations with attorneys in the Segal case indicates that it was superlative trial and appellate advocacy that’s responsible for this stunning result. Trial counsel Alan M. Greenberg and appellate counsel Jay Breakstone presented this case to the jury and the judges in such a fashion as to convince them that Mrs. Berger had in fact been aware of what was happening to her and felt pain as she died.

The key was to present sufficient factual evidence to give the jury a legal basis to award the damages and that’s just what the appeals court stated was done. Once there was a legal basis for the jury to award damages, then, the lawyers urged and the jurors judges agreed, $350,000 was not an unreasonable sum and the amount should not be (and was not) disturbed.

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Unfortunately, drunk drivers often collide with innocent victims with resulting deaths and grievous serious injuries. Lawsuits follow, especially when the drunk driver has insufficient liability insurance coverage and the facts show that the Dram Shop Act was violated (i.e., the drunk was served when he was visibly intoxicated). We will continue to follow these cases and report on interesting decisions and verdicts. 

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New York firefighter Kevin Deane was skiing in lovely Vail, Colorado on April 1, 2007 when he fell and suffered a spinal cord injury requiring cervical discectomy and fusion surgery that was performed there without complication. When he flew back to New York City to undergo rehabilitation at Mount Sinai Hospital on April 6th, tragedy ensued. Kevin was admitted to the hospital that afternoon (a Friday) and he died about 60 hours later at 2:30 a.m. on April 9th (a Monday). He was 39 years old.

The cause of death was hemorrhage and aspiration of blood caused by the erosion of the surgically implanted hardware into the esophagus.

Here is what the hardware in the neck looks like after fusion surgery:

Claiming that this was a preventable death, a wrongful death lawsuit was filed against the hospital seeking not only damages for negligence but also punitive damages. It's extremely rare that a punitive damages claim (in which plaintiffs must prove reckless indifference) is even allowed to be considered by a jury in a medical malpractice case. And that's what the hospital argued here in making a motion to dismiss that part of the suit; however, the judge disagreed - strongly - and issued a decision released this week in Deane v. Mount Sinai Hospital. The punitive damages claim was allowed to proceed and be considered by the jury.

The judge stated that the hospital appeared to have made the following tragic mistakes:

• after his admission, no attending physician ever saw Mr. Deane during the 2 1/2 days at the hospital
• the weekend on call attending physician never showed up because he didn't get a hospital email advising him he was on call and no one followed up to tell him
• the other on call attending was unaware that her colleague had failed to show up for work and unaware that half of the 100 rehab patients (including Kevin Deane) were not under the care of an attending

It angered the judge that Mr. Deane was, as she described it, effectively abandoned for over two days prior to his death and that no one ever even tried to tell hospital administration that the on call attending was missing. This appeared to constitute gross negligence, recklessness and gross indifference to patient care as did the hospital's lack of a system in place that would alert an administrator when an on call attending failed to arrive. Although this was merely a pre-trial decision on a motion to have the punitive damage claim dismissed, the judge's strong language all but held as a matter of law that the hospital was reckless.

The decision was rendered two weeks before the trial date. Not surprisingly, the case settled (for an undisclosed amount) before the jury was picked.

Inside Information:

• Mr. Deane was unmarried and without children and therefore the damages that could have been awarded in this case were pretty much limited to those for his pre-death conscious pain and suffering during his 2 1/2 days at the hospital [the length of time a decedent suffers before death will greatly affect this element of damages, as we discussed, here and here]
• punitive damages against an employer (here, the hospital) for acts of its employees (here, the medical staff) are imposed only where management has authorized or participated in the reckless conduct - in this case plaintiff would have claimed that management's inaction regarding the faulty email notification system warranted a punitive sanction

Even though the judge felt there was recklessness in this case, it would have been up to the jury to make that finding, or not. And because punitive damages are so rarely awarded in New York medical malpractice cases, and the standard of proof is so high and strict, there may have been a successful defense appeal of such an award had it been made.

One thing is perfectly clear, though: this was a tragic death and no amount of money can ever rectify the loss to the family of this young man.

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Dolores Johnson was 70 years old when she suffered a stroke and had to undergo surgery for a clot on a pre-existing mitral valve. There was a danger that the clot would break off and block a blood vessel. After the surgery, Ms. Johnson never woke up and five days later she died. Cause of death: severe anoxic injury to her brain.

In her husband's ensuing medical malpractice lawsuit, the jury found that the cardiothoracic surgeon deviated from accepted medical practice in performing the surgery and in utilizing a relatively new technology called "heartport" (sometimes used as an alternative for the traditional aortic clamp).

Here is the traditional aortic clamp:

So, defendant's malpractice was established in Johnson v. Jacobowitz and plaintiff won the case but then came the issue of damages. To recover pain and suffering damages in a wrongful death case, as we've noted before, here and here, plaintiff must show that the decedent experienced conscious pain and suffering before her death. That's where the case fell apart for Johnson.

This week, the appeals court in Johnson v. Jacobowitz upheld the trial judge's finding that there was insufficient evidence of awareness on the part of Ms. Johnson to make out a case with respect to conscious pain and suffering. Therefore, the the trial judge was correct in refusing to allow the jury even to consider the pain and suffering issue.

Proving conscious pain and suffering is difficult in cases involving comas or so-called vegetative states. It can be done, though, through medical testimony such as a neurologist testifying about the testing he did and the observations he made. Family members and nurses can show that the decedent cried out in pain, winced and so forth.

Walsh v. Staten Island Obstetrics & Gynecology Associates, P.C. is an oft-cited case in this area. There, an appeals court upheld a verdict of $650,000 in the case of an infant in a vegetative state for his entire eight year life. The court found that his level of awareness was established by testimony that he cried when he received painful stimuli and smiled and laughed at pleasurable stimuli.

Colombini v. Westchester County Health Care Corp. is a tragic case involving the death of a six year old boy. Michael Colombini was at the hospital undergoing magnetic resonance imaging when he was struck by an oxygen tank as he lay inside the MRI machine. He died from his injuries 53 hours later.

This is an MRI machine similar to the one in the Colombini case:

A medical malpractice case was brought by Michael's parents against the hospital and several others including the machine manufacturer, nurses, technicians and doctors. Damages were sought for Michael's pain and suffering. Additionally, plaintiffs claimed punitive damages (recoverable when a defendant engages in willful or wanton conduct evidencing an utter indifference for the safety of others). Much of the still pending litigation from this 2001 accident relates to the punitive damages claim (trial judge's July 2009 decision here) and the claims against defendants other than the hospital (which acknowledged its responsibility early on and offered $1,000,000 to settle).

The issue of pain and suffering in the Colombini case made its way to the appellate court. Both sides submitted medial affidavits.

• Defendants' neurologist claimed that because Michael had been sedated before the MRI procedure, he was already unconscious at impact and that after impact the brain damage from the impact made him unable to feel pain.
• Plaintiffs, however, submitted an affidavit from an anesthesiologist who stated that the sedatives merely put Michael into a tranquil state and that he was awake and experienced significant pain and suffering.

The appellate court in the Colombini case found that the competing medical affidavits resulted in issues of fact to be determined by a jury as to whether Michael did indeed experience conscious pain and suffering.

Whether plaintiffs prevail in the Colombini case as to pain and suffering or not, they will still face the fact that it was only two days after the accident that death occurred. Courts have necessarily addressed the issue of the amount of time a decedent suffered before death and have adjusted pain and suffering awards accordingly, as we discussed here.

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Again and again, people fall onto subway tracks in New York City and get maimed or killed. And often they do so after getting drunk. And just as often they or their estates sue the New York City Transit Authority claiming that the train conductor should have been able to prevent the accident.

We've written about these types of cases before, here and here. And our friend Walter Olson at Overlawyered has been following and discussing these cases with insight, intellect and intrigue, for example, here.

This week, an appeals court ruled on the latest case to come down the pike (er, the tracks) - Bacic v. New York City Transit Authority. On July 9, 2003, Maria Bacic was found dead under a subway car in Queens that had been pulling out of the station on its way to Manhattan. She died from blunt trauma and in the lawsuit that followed her estate claimed the motorman should have seen her attempting to board between two subway cars.

Why would anyone try to jump or climb aboard between subway cars? It's deadly dangerous!

The case went to trial in Queens County in October 2007 and at the close of evidence the judge granted the defendant's motion to have the case dismissed (without presenting it to the jury for deliberations). The problem for the plaintiff was a lack of any eyewitnesses and a totally circumstantial evidence case.

All plaintiff had to go on was an expert engineer's opinion that because one of Ms. Bacic's shoes was found on the subway platform the train's conductor should have seen the decedent, or at least her shoe that was later found on the platform. But, there was evidence that Ms. Bacic:

• had consumed 10-13 drinks before being dropped off at the subway station
• had a blood alcohol level of .21 (above .20 is considered gross intoxication) and
  
• was so drunk she was just shy of the coma level

How many drinks are too many?

In affirming the trial judge's dismissal of the Bacic case, the appeals court emphasized that the expert's testimony was "entirely speculative" and "did not constitute proof from which negligence could reasonably be inferred."

The judges completely rejected the plaintiff's argument that that the key issue was only whether the jury should have been permitted to determine whether the subway conductor had negligently failed to observe plaintiff or her slipper before signaling the motorman to proceed.

In addition to the entirely speculative nature of plaintiff's argument (it was based on plaintiff's expert's analysis of what he thought had happened), there remains the utter stupidity of trying to board a subway train between cars while nearly comatose from drinking alcohol! 

This case will cause many to consider anew the issue of whether there should be a "loser pays" system in the United States. That's one of the measures urged by the so-called tort reformers who contend that there are too many frivolous lawsuits and that they are a huge burden, especially for small businesses forced to pay lawyers fees win or lose.

In Britain, France, Germany and Canada there are "loser pays" rules that require the losing party in a lawsuit, whether plaintiff or defendant, to pay the winner's reasonable attorney's fees.

The loser pays rule has been studied by Marie Gryphon of The Manhattan Institute. She and others argue that the loser pays system would benefit all because it would:

• reduce litigation costs
• better compensate prevailing litigants and
• better align tort law with its goal of deterring socially harmful conduct

Some states have considered its implementation (e.g., Georgia and Minnesota). Without doubt, though, most lawyers representing plaintiffs in tort suits will oppose any loser pay rules (Boston's Robert Feinberg and Atlanta's Ken Shigley have already weighed in as staunch opponents).

Whether one agrees or not that the loser pays rule would be beneficial to all, it is surely worth discussing and will be discussed and considered more and more as litigation costs continue to spiral upwards. The public clamor in favor of loser pays may swell such that some form of it may become the law soon.

As new measures are introduced and the loser pays issue moves more to the forefront, we will revisit this topic.

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Burn injuries are without doubt among the most painful injuries a person can experience. They come from a wide variety of accidents such as fires in the home or a car, electrical shocks on the job and even operating room lights during surgery. Recent court decisions in New York have upheld verdicts for pain and suffering damages in burn injury cases from $300,000 to $3,600,000.

In Hawthorne v. Vehicle Asset Universal Trust (Index # 16721/04; Supreme Court, Queens County; 12/11/08), a 40 year old construction worker, James Stanton, was literally burned alive in his car when he could not escape after a motor vehicle accident.

He sustained deep burns of his entire body and endured 10 minutes of conscious pain and suffering before death. A Queens County jury awarded Mr. Stanton's estate $10,000,000 for his pain and suffering but the trial judge found that the jury had been over-emotional and rendered an excessive award. The judge ordered a reduction to $2,500,000.

In another recent big damage burn injury case, a Columbia County jury awarded a 24 year old electrician $3,600,000 for his pain and suffering ($300,000 past, $3,000,000 future). Jordan Neissel was attempting to repair a college's circuit breaker when he was shocked and severely burned. Although only about 7% of his external skin was damaged, the jury's award was upheld in full by the appeals court in Neissel v. Rensselear Polytechnic Institute. The appeals court took into account the fact that plaintiff sustained significant and permanent muscle and nerve loss, lacks feeling in his arms and suffers from post-traumatic stress including flashbacks, nightmares, social isolation and panic attacks.

Two less gruesome recent cases show that even without massive injuries, burn cases result in significant pain and suffering verdicts that will be upheld by the courts.

In Paruolo v. Yormak, a 50 year old school guidance counselor suffered from elbow pain that was ultimately diagnosed as a chondral injury requiring surgery to remove loose bone fragments. During the surgery, an operating room light was negligently maintained and caused third degree burns on Mr. Paruolo's elbow and arm. He didn't even know he had burn injuries until there days after surgery when his bandages were removed and there was visible blistering. He had infections, underwent six days of hospitalization to administer antibiotics and he needed a debridement and skin graft from his thigh.

Mr. Paruolo sued and liability was conceded but the amount of damages could not be agreed upon and trial ensued in Westchester County. The jury returned a verdict of $300,000 for pain and suffering ($275,000 past, $25,000 future). Plaintiff appealed claiming the future damages award was too low and the appeals court agreed finding that the future pain and suffering sum should be increased to $150,000 with the result that the final award was $425,000 ($275,000 past, $150,000 future).

The court was moved by the facts that plaintiff had two permanent and embarrassing scars on his elbow and thigh, the scars could not be exposed to sunlight and posed a heightened risk of skin cancer, he had to wear long sleeve shirts in warm weather and would suffer from all of these for 25 years.

Burns are classified according to degrees:

In Stefanescu v. City of New York, a 30 year old transit authority track worker was working in the subway when contact with a metal plate energized the third rail and caused a flash fire. Mr. Stefanescu was set on fire and suffered second degree burns to his entire face. While he claimed residual symptoms such as tightness, heightened sensitivity to temperature and sunlight and post-traumatic stress, plaintiff required minimal hospitalization, standard care and no skin grafts or surgery. At the time of trial, his scars were no longer visible. The Kings County jury awarded plaintiff $750,000 ($650,000 past, $100,000 future) for his pain and suffering but the trial judge reduced the verdict to $200,00 ($150,000 past, $50,000 future).

The appeals court finally set the verdict at $300,000 ($250,000 past, $50,000 future) finding that $250,000 for Mr. Stefanescu's past pain and suffering was reasonable because of the great deal of pain  he suffered in the four year period from the accident to the trial. As to future damages, though, the court found $50,000 reasonable in view of plaintiff's minor treatment and lack of residual damages or permanent injury.

Pain and suffering verdicts in burn injury cases are evaluated buy the appellate courts in most respects similar to the way they evaluate damages in other pain and suffering scenarios - what's reasonable depends on the severity of the injury, the type and length of treatment (especially surgery), the activities the plaintiff can no longer do or can do only with limitations or pain and the expected period of future pain and suffering (when permanent, the period is the number of years plaintiff is expected to live).

In burn cases, there are several unique additional factors that the courts (and juries) consider:

• post-traumatic stress - with credible psychological testimony and a gruesome mechanism of injury (e.g., fire causing facial burns)
• scars - burns leave some of the ugliest permanent scars and when in the face they can be shocking
• skin graft procedures - which can be excruciatingly painful and leave scars on other parts of the body

Here's what the skin graft procedure looks like:

As the cases demonstrate, verdicts for pain and suffering damages in burn injury cases vary widely, just as the types of burn injuries vary (i.e., based on the degree - 1st, 2nd or 3rd, based on the number of skin grafts required and whether there is permanent scarring). We will continue to report on burn injury cases as they come to trial and are ruled on by juries and judges.

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A Westchester County jury recently returned a verdict of $5,000,000 in favor of the estate of a woman who died because of medical malpractice. It will not stand up on appeal.

In Schaffer v. Stony Lodge Hospital (Supreme Court, Westchester County; Index # 4155/99; 11/6/08), a 68 year old woman with long standing depression went to a small psychiatric  hospital (Stony Lodge) for a change of her anti-depressant medication. While there, she suffered a seizure and so was transferred to a community hospital (Phelps Memorial Hospital). There,  she had another seizure, a heart attack and then became comatose and never regained consciousness. She died 4 1/2 years later.

Liability for the medical malpractice in failing to timely treat the hyponatremia was clear enough so Phelps Hospital and one of its doctors settled early on for $1,750,000. The main doctor who committed the malpractice, though, Narain Batheja, refused to settle and the case came to trial and the jury found that  Mrs. Schaffer's suffering, albeit while comatose, had a value of $5,000,000.

No doubt this case will be appealed and there are several issues:

• Was there enough evidence that Mrs. Schaffer actually experienced conscious pain and suffering while comatose? Plaintiff points to statements from family members and nurses that Mrs. Schaffer followed her caregivers with her eyes and cried at times. The defense will no doubt point out that there was no medical examination pre-death as to level of consciousness.
• The other issue that will be heavily contested on appeal is the reasonableness of $5,000,000 as pain and suffering damages for 4 1/2 years while comatose

Here are some cases that indicate that the $5,000,000 may not withstand an appeal:

• Jump v. Facelle (2d Dept., 2002) - In this case the court held that $1,300,000 was reasonable for eight months of pre-death pain and suffering, including persistent abdominal infection, several surgeries, and a permanent colostomy and bed sore.
• Ramos v. Shah (2d Dept., 2002) - The court ruled that $900,000 pre-death pain and suffering was too high and that $450,000 was proper and reasonable in a case in which a decedent died due to medical malpractice resulting in a cardiac arrest and his lapse into a coma for several days before death. There was some testimony that the decedent had some level of consciousness for several days.
• Weldon v. Beal (2d Dept., 2000) - In this medical malpractice case, the Kings county jury awarded a brain damaged plaintiff $13,500,000 for pain and suffering ($3,000,000 past; $10,500,000 future) despite the fact that she was in a vegetative state. There was evidence that she had some level of awareness (and that she'd need almost $2,000,000 of medical expenses for the rest of her life). The appellate court held that the pain and suffering verdict was too high and reduced it to $5,000,000 ($2,000,000 past; $3,000,000 future).

Insider Information:

• Plaintiff's attorney in Schaffer v. Stony Lodge Hospital would have accepted a total of $3,000,000 to settle all claims - meaning that defendant Batheja could have settled for $1,250,000 (and I hear that plaintiff's counsel at trial would have reduced that figure to $750,000).
• In this case, the non-settling doctor's insurance carrier, Frontier Insurance Company, was stubborn and would not concede liability in a case in which those involved on all sides now tell me was indefensible.
• The plaintiff's husband was also awarded $3,000,000 in addition for loss of consortium. That's the claim of the non-injured spouse for loss of services and it usually involves the disruption to the marriage, the many hours spent caring for the injured person, the lack of intimacy and the like. It's usually around 10% of the injured spouse's pain and suffering verdict and the appellate courts can and will determine that loss of services verdicts should be reduced in appropriate cases. This will be one of those cases if not settled before an appeal is concluded. In my experience, this loss of services claim will end up nowhere near $3,000,000.

UPDATE: As we predicted, on September 14, 2010, in Schaffer v. Batheja (2d Dept. 2010), the appellate court drastically reduced the pre-death pain and suffering award to $2,500,000. Additionally, the court reduced Mr. Schaffer's jury award to $500,000. The decision is discussed by us here.

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A six year old California boy died during a family trip when the rear tire on the rental car his father was driving blew out and the car rolled over.

  According to the family attorney, William Berman of San Diego, after years in court, forensic experts and deposition testimony revealed that the rental car firm allowed the failed tire to run for a prolonged time in a severely under-inflated state. The defendant finally admitted liability and a $2,450,000 wrongful death settlement was reached.

Had this case been brought in New York or governed by New York's wrongful death laws, the result would have been drastically different.

Under New York's wrongful death statute - EPTL Section 5-4.3 - there are two categories of damages in death cases:

1. special damages - such as funeral, medical and nursing expenses
2. general damages - the pecuniary (i.e., monetary) loss to the decedent's survivors

There are no damages allowed in New York wrongful death cases for the parents' grief or emotional loss (unless the parents were at the scene and either physically injured in the same accident or within the zone of danger).

Here is what the judges read to the juries, right from New York's Pattern Jury Instructions, before submitting these types of claims for their consideration:

• You may not consider or make any award for sorrow, mental anguish, injury to feelings or loss of companionship.
• You must determine the economic value of the decedent to his distributees (his heirs)

This is in distinction to most other states, such as California, and something the plaintiff's bar in New York has for many years, unsuccessfully, tried to have changed legislatively.

The only other significant category of recovery in wrongful death cases involving minors in New York is pre-death conscious pain and suffering. That's often not relevant (e.g., instant death from an accident, death from medical malpractice while under anesthesia). We've discussed in a recent post important  cases dealing with the pre-death pain and suffering aspect in wrongful death cases.

So the main claim the families of minors in New York are often left with is that the decedent would have contributed his or her net income to, or otherwise would have financially helped, the survivors.

How do you prove that a two year old would have become a significant income earner and would have given over to his parents significant amounts during their lifetime? Plaintiffs' attorneys are relegated to issues such as the infant's intelligence, likely education, statements that were made regarding future support, the parents' own economic situation, how much the kid helped around the house and the like. Very difficult and sometimes impossible to prove.

Here are some cases in which there were verdicts awarding damages for the loss of an infant's future financial support:

• Cepeda v. New York City Health and Hospitals Corp (1st Dept. 2003) -  $83,000 jury award for future pecuniary loss for the death of a 12 day old infant went unchallenged on appeal
• Kruger v. Wilde (4th Dept. 1994) - $100,000 for pecuniary loss for the death of a 14 year old girl who was a good student and worked part-time
• Alcalay v. Town of North Hempstead [unreported case] - $200,000 for pecuniary loss for death of 12 year old

Insider's tip: Even in the absence of any verifiable proof, attorneys in New York representing the heirs of a deceased infant will usually make a wrongful death claim. At a minimum, they have the parents testify as to the help they expected the deceased infant to contribute to the family (i.e., household chores) and, if there was a part-time job or any scintilla of evidence (school report cards, the child's stated aspirations), then proof is adduced as to career goals too. If the jury has any basis at all to award pecuniary damages then its award may stand or at worst be reduced somewhat on appeal.

To end on a positive note of sorts, I leave you with references to some recent lawsuit victories in wrongful death cases of minors brought in states other than New York:

• Chicago Injury Attorney Blog reports on a $9,000,000 appellate court win in a medical malpractice a case involving the death of a 12 year old boy
• Alabama Personal Injury Blog reports on a $3,000,000 settlement for the wrongful death of a 12 year old boy in an ATV accident
• Chicago Accident Lawyer Blog reports on a $10,000,000 trial judge decision for the wrongful death of a 15 year old boy in a car accident

We will follow the cases and trends in this emerging area of wrongful death litigation and encourage readers from all areas to report new developments as they break.

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A 27 year old man, Starsky Garcia, was shot to death in the parking lot of a North Miami Beach parking lot two years ago. The Miami Herald reports that the shooter has never been found but the family hired The Haggard Law Firm in Coral Gables who sued the apartment owners for their negligence.

Now, a Florida jury verdict has held the apartment complex managers and owners were liable for inadequate security and awarded  the decedent's family $8,000,000 in wrongful death damages -

even though the shooter was never caught like the perp was in the photo here!

Florida personal injury attorneys Paige Tropp & Ameen note that the defendants should have implemented proper safety measures to prevent this crime, especially in view of many other recent crimes at Florida apartment complexes.

Unlike in New York, Florida law permits a jury to award survivors loss of companionship damages.  About 30 states allow damages for loss of consortium or loss of companionship in their wrongful death laws. In New York, though, this element of damages is forbidden and juries here are not permitted to award damages suffered by the survivors for their emotional loss. Every year since 1995, there have been failed legislative efforts in New York to get the law changed.

So how come there are still many large wrongful death verdicts and settlements in New York? That's because the permitted damages here include loss of earnings (imagine the tragic death of a young person earning six figures and multiply that out for his expected work life years and the verdict can get into the millions very quickly).

And then there's pre-death pain and suffering. This too can be a huge number but the claim is rife with difficulties for the heirs. First, there's the requirement that the decedent was conscious and actually suffered before he died. Second, there's the difficulty of evaluating the proper amount for this claim.

In Glaser v. County of Orange (2d Dept. 2008), the estate of a 50 year old man was awarded $350,000 for pain and suffering after a car accident that resulted in his death at the scene. The jury returned a verdict in the sum of $1,000,000 an amount the appellate court found was too high because the plaintiff's medical expert testified that the decedent was conscious for no more than two to three minutes after his windshield was struck by a rear axle that came loose from the defendant's dump truck and struck the decedent's windshield and he was pronounced dead 15 minutes after the crash.

The Glaser family was faced with long-standing law in New York that to recover for pre-death pain and suffering the estate bears the burden of proving that a decedent suffered conscious pain and suffering - some level of awareness -  following the accident. In the Glaser case, the appellate court was clearly swayed by testimony of witnesses on the scene that the decedent was not moving and exhibited no outward signs of pain.

The court was also influenced by its own 2007 decision in Bennett v. Henry (2d Dept. 2007) in which it determined that it would not disturb a jury award of $400,000 for pre-death pain and suffering of a 74 year old woman killed in a car accident. There, witnesses testified that they observed the decedent to be breathing at the scene, in pain and making sounds. She was not pronounced dead until 10 hours later at the hospital.

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