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:
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.
- 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