Wilbur Rodriguez, a 44 year old postal worker, went to a hospital emergency room in Manhattan at 11:45 a.m. on Saturday, January 24, 2009. He complained of shortness of breath that started the day before, fever and chills. He was diagnosed with pneumonia and, after 12 hours in the ER, admitted and assigned a room.

Rodriguez was seen in his room every hour or so continuing to complain of shortness of breath and being treated with oxygen via nasal canula or mask. He was last seen by a nurse at about 4 a.m. who noted he had no signs of shortness of breath at that time.

A patient (not Rodriguez) receiving oxygen therapy:

Forty minutes later he was found unresponsive, could not be resuscitated and was pronounced dead an hour after that.

An autopsy report concluded that the cause of death was “bronchopneumonia complicating diabetes mellitus.”

His mother, Evelyn Rivera, a Bronx resident, was his sole survivor and she commenced a lawsuit against the hospital claiming that doctors should have more closely monitored her son by (a) transferring him from the ER to the intensive care unit and, later, (b) transferring him from his room (on a general medical floor) to an appropriate area in the hospital with continuous monitoring.

On April 18, 2012, the Bronx jury rendered a verdict finding that the hospital had indeed negligently caused the death of Mr. Rodriguez as alleged and they awarded economic damages for his mother’s loss of household services in the sum of $720,000 ($40,000 past – three years, $680,000 future – 17 years). The jury declined to award any sum at all for pre-death conscious pain and suffering.

Both parties asked the trial judge to set aside the verdict.

• Plaintiff argued that there was no basis for the jury to conclude Rodriguez had not suffered in the five minutes or so before he died in view of (a) the many references in the hospital record that Rodriguez had difficulty breathing and was hypoxic, (b) the autopsy report concluding that pneumonia was the cause of death and (c) the testimony of his medical expert Mark Schiffer, M.D. , that the cause of death was respiratory failure due to bronchopneumonia which would necessarily cause suffering as Rodriguez fought, and lost, his battle to breathe.
• Defendant argued that the future household services loss award was excessive.

The judge granted the defendant’s motion to the extent of ordering a reduction of the future household services award to $340,000 but she denied the plaintiff’s application to set aside the award of $0 for pain and suffering and/or for a new trial on that issue.

In Rivera v. Montefiore Medical Center (1st Dept. 2014), the judge’s post-trial decision has been affirmed. Plaintiff’s award now stands at $380,000 (all for her household services loss).

As indicated in the decision, it appears that the jury awarded nothing for pain and suffering because of testimony from defendant’s emergency medicine expert Mark Silberman, M.D.  that Rodriguez “most likely” died from a sudden, unexpected cardiac arrhythmia (an irregular heartbeat), died instantly and he did not suffer at all. The expert based his conclusion, in part, upon the fact that the autopsy report documented left ventricular hypertrophy (an enlargement of the left side of the heart – the pumping mechanism – which increases risks for cardiac problems).

Ms. Rivera testified that her son had never married, had no children, lived alone and that every day after work he would visit her apartment for two or three hours and help her with household chores (such as  cleaning and shopping). Calculation of her loss of household services claim was based upon the testimony of expert economist Alvin Mickens, Ph.D., who used statistical averages of 15.5 hours a week and an hourly rate of $13.66 to arrive at a 17 year total of $286,202. Therefore, both the trial judge and the appellate court determined that the jury’s award of $720,000 for household services was excessive. They did, though  allow $380,000 (still an amount that was more than the economist calculated) since “pecuniary damages need not match the expert’s assessment exactly.”

Ms. Rivera also testified that her son gave her at least $600 every month to help support her. She, therefore, claimed loss of support or inheritance damages in the sum of $600 per month from the date of her son’s death up through her own life expectancy of about 17 more years. That would have added at least $125,000 in damages; however, there was no documentary proof such as bank records or checks to evidence these payments so the trial judge ruled that plaintiff was precluded at trial from pursuing this claim.

Inside Information:

• During trial, there was a $300,000 settlement offer and an indication that the defendant would offer more. Ms. Rivera rejected the offer and stated on the record (outside the presence of the jury) that no amount of money would resolve the case and she wanted the jury to render a verdict.
• In his closing argument, plaintiff’s counsel suggested an award of $600,000 for pain and suffering plus $290,000 for loss of household services.
• The loss of support or inheritance claim might be the subject of a new, separate appeal because it was not raised or discussed in the context of the post-trial motion and the appellate court stated it was “not properly before us on appeal.”