Anna Gloria Rivera was born in 1988 and within three months she was diagnosed with asthma (a chronic inflammatory disease of the airways). Growing up, she used a nebulizer with Albuterol to alleviate her symptoms but from time to time suffered from asthma attacks that would sometimes end up with emergency room treatment before she’d be released back to her home, school and an otherwise normal life of a young kid.
In the early morning hours of December 21, 1998, though, Anna suffered a severe asthmatic episode and was rushed by ambulance to a city hospital, Woodhull Medical and Mental Health Center.
After four hours and forty-five minutes of frantic treatment, during which she was restrained to a hospital bed, Anna’s lung collapsed and she died due to tension pneumothorax.
In the ensuing lawsuit , Rivera v. City of New York (Supreme Court, Kings County; Index # 6288/00), the hospital and its doctors and technicians were found to have committed malpractice because they:
- administered oxygen at an excessive rate
- failed to manage intubation properly resulting in extubation and re-intubation
- failed to administer sedatives and paralytics
The jury awarded pre-death pain and suffering damages in the sum of $3,500,000 based on evidence that during the 4 3/4 hours that Anna was being worked on at the hospital she endured excruciating pain and panic, especially as she fought, her arms and legs restrained in bed, against the treatment and her breathing difficulties.
Here is an endotracheal tube, like the one doctors inserted into Anna’s airway to try to save her:
The $3,500,000 verdict has now been upheld on appeal in Rivera v. City of New York (2d Dept. 2011).
The appellate court decision failed to mention any of the underlying facts as to Anna’s pain and suffering. Nor did the court compare this award with similar cases.
During the terrible final few hours of Anna Rivera’s life, she suffered enormous physical pain and terror from:
- unrelenting pain while gasping for air and struggling to survive;
- extreme fright, anxiety and confusion at not being allowed the presence of and comfort from her parents
- panic and fear from being physically restrained to the bed without the paralytic and sedatives
- choking and gagging from the endotracheal tube while having to endure the invasive intubation procedures three times without anesthetics, sedatives and muscle relaxants
- severe agitation from fighting and bucking against the endotracheal tube
Here are the cases relied upon by the plaintiff in arguing, successfully, that the $3,500,000 pain and suffering verdict is reasonable and should not be modified downward:
- Lubecki v. City of New York (1st Dept. 2003) – $3,000,000 for pre-impact terror and other injuries in shooting of a hostage who died one hour later
- Twersky v. Busch (2d Dept. 2007) – $1,000,000 for pain during 2 1/2 hours of consciousness after car accident
- McAndrews v. City of New York (2d Dept. 2002) – $1,000,000 for 40 minutes of conscious pain from multiple fractures and internal injuries in car accident before death on the operating table 35 minutes later
- The appellate court also ruled that plaintiff’s claim for pecuniary damages should not have been dismissed by the trial judge. Even though Anna died at the age of 10 years, her mother should have been permitted to present to the jury her claim for lost future potential economic support. The court cited Parilis v. Feinstein (Court of Appeals 1980) in which $50,000 in pecuniary damages was affirmed in the case of a 12 year old boy’s death. In Rivera v. City of New York, there was evidence that Anna was quite accomplished academically and helped out around the house with chores and the like. While an appellate court would not likely sustain much more than a low six figure verdict in this instance, plaintiff may proceed to a new trial for additional damages on this claim alone if the parties do not now settle the pecuniary damage claim.