On April 2, 2014, Nathan Wasserberg was admitted to Menorah Center for Rehabilitation & Nursing Care in Brooklyn after a two month hospital stay due to diabetes that led to a toe amputation, sepsis and other conditions. He was unable to walk or use his arms, mumbled to communicate and could not consume any food or drink orally.
On April 10th, staff found Mr. Wasserberg unresponsive and in cardiac arrest. CPR was started and 911 was called. He was revived by EMS who took him from the nursing home to a hospital where he died on April 30th at the age of 73 years old.
Mr. Wasserberg’s son sued Menorah claiming that its staff was negligent because they failed to check his father’s airway when they found him unresponsive (EMS personnel, who arrived about 12 minutes later, found his airway was obstructed by a piece of meat which they dislodged at the scene).
The Kings County jury determined that defendant’s staff failed to check Mr. Wasserberg’s airway and that their failure was a substantial cause of his resulting injury and death. The jury then awarded pre-death conscious pain and suffering damages in the sum of $300,000.
In Wasserberg v. Menorah Center for Rehabilitation & Nursing Care (2d Dept. 2021) both the liability and damages verdicts have been upheld.
Here are the injury details:
- asphyxiation for about 12 minutes (before EMS dislodged the airway obstruction)
- 11 days of conscious pain and suffering in the hospital
As to damages, the defense contended that (a) the decedent was in such a debilitated state during his time at Menorah that he was in a partial vegetative state, not fully responsive and had a significantly diminished ability to experience any pain from his airway obstruction and (b) he was unconscious during his entire time at the hospital. Plaintiff, while not claiming that defendant was liable for the airway obstruction itself, contended that (a) Mr. Wasserberg was conscious when he asphyxiated with his airway obstructed and (b) for his first 11 days at the hospital, he was responsive to verbal, tactile and panful stimuli.
- Both parties presented expert testimony regarding decedent’s conscious awareness.
- In his summation, plaintiff’s counsel asked the jury to award pain and suffering damages in the sum of $5,000,000.