After five years in a nursing home for treatment for several medical issues including chronic urinary tract infections and a stroke, and a month at New York Presbyterian Hospital (“New York Pres.”) in October 2013 where she was treated for respiratory distress and pneumonia, Charlotte Much was transferred to a New York City nursing home on October 29, 2013. She remained in city health care facilities until her death on May 4, 2014, from cardiac arrest due to severe septic shock. She was 69 years old when she died.
Ms. Much’s estate sued New York Pres., the city hospitals and the nursing home, claiming that they negligently allowed her to develop pressure ulcers and failed to prevent the progression of those ulcers. Defendants denied they were negligent and alternatively argued for dismissal of plaintiff’s pre-death pain and suffering claims on the ground that Ms. Much was in a vegetative state and had no level of awareness and did not experience any level of conscious pain and suffering during her hospital admissions.
The defendants’ motion for summary judgment dismissing the pre-death conscious pain and suffering claims was granted but on appeal reinstated in Estreich v. Jewish Home Lifecare (1st Dept. 2019).
The appellate court concluded that there are issues of fact as to whether plaintiff’s decedent experienced “some level of cognitive awareness” during her admission to defendants’ facilities. Here are the factors that the court found support plaintiff’s claim:
- decedent was generally responsive to pain
- she sometimes followed commands or responded to verbal stimuli
- her doctors prescribed and administered medication, apparently believing she was in pain
- she made expressions of pain or emotion such as moaning, crying, or smiling and she communicated by blinking
Defense experts noted that Ms. Much had a very extensive past medical history including diabetes, congestive heart failure, multiple strokes, vascular dementia, urosepsis and pneumonia and that (a) by April 2010 she required total care for all activities of daily living and (b) she had a history of pressure ulcers dating back to November 2006. Furthermore, during her New York Pres. admission (and thereafter), she was continually documented as being in a “chronic vegetative state”, as unresponsive, and/or without mental status.
Plaintiff’s expert opined, based upon medical records as well as testimony from her family members, that Ms. Much’s neurological deficits were not an impairment for her to perceive at least some level of conscious pain arising from her injuries even though she was non-verbal.