On Wednesday June 18, 2008, Nam Yoon Lee woke up with stabbing pain on the right side of his stomach. He went with his wife to the emergency room at a hospital in Queens where morphine was administered, tests led to a diagnosis of gallbladder disease and a plan was made to surgically remove his gallbladder (a cholecystectomy).
Mr. Lee, 60 years old, was admitted to the hospital’s surgery service and, in advance of the surgery, he was NPO (no food, intravenous fluids and antibiotics only). For unknown reasons, and with horrible consequences, Mr. Lee’s surgery never took place. Over the next several days, his NPO status was maintained and Mr. Lee’s hunger and thirst progressed into great pain and then breathing itself became difficult. He feared he was dying. His fears were justified.
On Sunday June 22nd, Mr. Lee developed sepsis (because of the negligent failure to remove his infected gallbladder), went into full cardiac arrest and died at about 4 p.m. that day after attempts to revive him failed. He is survived by his then 56 year old wife, Young Sook Lee and his then 29 year old daughter, Jae Yon Lee.
Laparoscopic surgery to remove a gallbladder is relatively simple and should have been performed on Mr. Lee:
A lawsuit was filed on behalf of Mr. Lee’s estate against the hospital and three physicians. Defendants conceded liability and on December 23, 2011, after 18 days of trial, a Queens County jury heard the case and rendered a verdict for $7,579,560:
- $5,000,000 for pre-death pain and suffering (from 6/18/08 through 6/22/08)
- $336,000 for past economic loss to decedent’s wife and daughter (from 6/22/08 to the date of the verdict)
- $2,243,560 for future economic loss to decedent’s wife and daughter
The trial judge ordered a reduction of the pain and suffering award to $3,750,000.
Now, in Lee v. New York Hospital Queens (2d Dept. 2014), the appellate court has affirmed the $3,750,000 pain and suffering award as well as the $2,243,560 future economic loss award while reducing the past economic loss award to $250,000. The total affirmed award stands at $6,243,560.
As set forth in the court’s opinion, the substantial pain and suffering award was based upon evidence that from the time of Mr. Lee’s admission to the hospital until his death four days later he complained of pain, discomfort, hunger, difficulty breathing and feeling that he was dying. Here are additional injury details:
- continuing inflammation of gallstones causing fevers, chills, sharp pain and sickness
- extreme anxiety due to daily delays of gallbladder surgery
- shivering, wheezing, shortness of breath and whole body shakes (rigors) starting about 12 hours before death (as systemic sepsis developed)
- screaming, saying “I feel like I’m dying” and I am in “so much pain” (about two hours or so before death)
- critical oxygen deprived state requiring a rapid response team which found Mr. Lee violent and in need of physical restraint
- intubation an hour before death with medication that left him paralyzed for about four minutes, aware of the tube down his throat which made him gag, unable to speak and produced conscious suffering and terror
- when the paralytic medication wore off, Mr. Lee became able to move and he reacted by thrashing and pulling out the tube; his brain then succumbed to oxygen deprivation and he was aware he was asphyxiating for four more minutes until he was unconscious and went into cardiac arrest
The $2,243,560 affirmed award for future economic loss was based upon the claim that a licensed practical nurse was needed to care for Mr. Lee’s daughter, Jae, over the course of the 19 years of Mr. Lee’s life expectancy before he died. Jae was 32 years old at the time of trial but was unable to live on her own due to mental disabilities that, among other things such as epilepsy induced seizures and schizophrenia, left her with an IQ of an eight year old child. Mr. Lee had been her primary caregiver. At the time of trial, Jae was living at Hope House, which is for people who are mentally retarded and disabled, but her mother wanted her to return home and expert psychiatric testimony indicated that home-care with a nurse would be best.
- Mr. Lee had worked part-time as a salesman earning about $12,000 a year but apparently failed to pay income taxes after 2007. In his closing argument, defense counsel accused plaintiff of lying under oath based upon the amount alleged for lost earnings in the bill of particulars and suggested that Mr. and Mrs. Lee “committed fraud” and that the lawsuit was an opportunity to “get rich” provided plaintiff can “get the jury to go along with this.”
- Defendants’ concession of liability was the subject of an intense dispute (as to which of the three doctors were conceding and what facts as to liability, if any, could be brought out at trial) and caused the trial judge to say to defense counsel “I will not allow this farce to continue…. I have never in my life experienced such a farce ….”
- Mr. Lee was also survived by an adult son who was the administrator of his estate but no individual claim was made on his behalf.