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.