Hermine Browne, a 58 year old nurse’s aide, was experiencing excruciating stomach pain when she went to see her internist on February 17, 2001. The doctor diagnosed her with irritable bowel syndrome and prescribed medication. Unfortunately, the pain continued (and the same diagnosis was made) through March of 2002 when a sonogram and then a CT scan showed a large cancerous tumor, so extensive that only part could be surgically removed.
After several years of treatment for the cancer, the tumor led to Ms. Browne’s death in September 2007.
After a four week trial in 2011, a Bronx County jury found that the doctor departed from accepted medical practice by failing to timely order a CT scan in February 2001, thereby resulting in growth of the tumor to the point where it was unresectable and only palliative debulking of the tumor could be performed in May 2002.
The jury awarded damages in the sum of $880,000 as follows:
- pre-death pain and suffering – $325,000
- economic loss to children – $555,000
The defendant’s post-trial motion to vacate the jury verdict was granted. The trial judge found that the liability finding was against the weight of the evidence, in particular that the testimony of plaintiff’s expert oncologist was prejudicial and unfair and that plaintiff’s presentation of certain evidence resulted in undue surprise and unfairly prejudiced the defendant.
On appeal, in Rose v. Conte, (1st Dept. 2013), the jury verdict has been reinstated in plaintiff’s favor, both as to liability and as to damages.
The pre-death pain and suffering verdict was based upon the decedent’s six years of pain, fear and emotional stress prior to her passing. During that time, Ms. Browne – a previously independent, hard-working woman who was the matriarch of a large family – could no longer work, was constantly going to doctors, on extensive medication and in unremitting pain. The defense did not challenge the amount of this award.
As to economic damages, Ms. Browne was survived by five adult children ranging in ages from 34 to 42 years. They claimed that their mother’s death resulted in economic damages to them from the loss of her nurture, care and guidance.
So-called loss of guidance damages are typically awarded to young children; however, New York law (see Gonzalez v. New York City Housing Authority – Court of Appeals, 1991) provides that there is no prohibition to the award of loss of guidance wrongful death damages to adult children (even when they are financially independent) so long as there is adequate proof that the decedent provided more than occasional services to the children such as shelter, meals, advice and guidance.
In this case, one of the surviving children, Richard Donalds (46 years old at the time of trial), was handicapped, having been, as plaintiff’s counsel put it, “grossly deformed [hands, feet and torso] as a result of Thalidomide taken by his mother during her pregnancy.” Richard had lived with his mother who provided extensive services to him including helping him get up when he fell due to his deformed feet, helping him to dress himself (he could not use his hands), cooking, shopping, driving and cleaning his clothes. The jury awarded – and the appellate court affirmed – $500,000 for Richard’s economic loss.
- Before she died, Ms. Browne had started the lawsuit and trial was underway. She died in the middle of that trial in 2007. A mistrial was declared and a new trial ensued four years later.
- In closing arguments, plaintiff’s counsel asked the jury to award $1,500,000 for pre-death pain and suffering.
- The economic loss awards to the adult children included the $500,000 for Richard discussed above plus $25,000 to the son who took over caring for Richard and $10,000 each to the other three siblings in consideration of the spiritual guidance provided to each of them by the decedent.