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.