Robert O’Connor, then 77 years old, was admitted to Kingston Hospital  on December 26, 2008 from the office of his physician when he was noted to be dehydrated and hypotensive subsequent to a several week history of loss of appetite and generalized weakness with nausea and vomiting. Within two days, he was diagnosed with multiple cancerous liver and bone metastases. During his two weeks at the hospital, Mr. O’Connor developed significant bed sores from which he suffered until he succumbed from cancer and died at another hospital on February 27, 2009.

In his estate’s ensuing medical malpractice lawsuit, an Ulster County jury determined that Kingston Hospital committed malpractice by departing from accepted standards of nursing practice in its treatment of Mr. O’Connor between 12/26/08 and 1/9/09 and, after he was discharged to his home for nine days, between 1/18/09 and 1/23/09. Plaintiff’s expert identified three specific deviations that caused the pressure ulcers to develop and worsen: (1) failing to turn the patient every two hours, (2) failing to supply an air mattress, and, (3) failing to to recognize the high risk for pressure ulcers and have a plan in place designed to minimize pressure on the skin.

The jury awarded pain and suffering damages in the sum of $500,000 (past – two months), an amount that was affirmed in O’Connor v. Kingston Hospital (3d Dept. 2019).

Here are the injury details:

  • development of Stage II pressure ulcer by 1/1/09 (and two more by 1/3/09) which grew to 10 centimeters and was designated unstageable by 1/19/09 and which by 1/23/09 was diagnosed as a Stage IV sacral decubitis pressure ulcer which had the appearance of rotting flesh and had purulent serosanguineous discharge and odor
  • constant pain, as is typical with pressure ulcers, in and about his buttocks and legs, leaving him unable to walk
  • two surgical irrigation and debridement procedures to remove the eschar (dead tissue) and drain inside the ulcer

Plaintiff argued that defendant’s negligence caused a large grotesque foul-smelling wound in which flesh literally rotted as the decedent, a stoic Korean War veteran, died an ignominious and painful death. Defendant argued that it was far from clear that the decedent developed any pressure ulcers while under its care and that its records indicated he was discharged “without skin breakdown.”

As to damages, the defense contended that the pain and suffering award was excessive and that:

  1. whatever pain the decedent had it was well controlled while under the defendant’s care,
  2. whatever pain he had related almost solely to his abdominal region likely due to his metastatic cancer, and ,
  3. the jury speculated impermissibly with regard to which, if any, pain and suffering was the result of any alleged departures or was “simply an unfortunate result of his suffering from terminal metastatic cancer with associated treatments.”

Inside Information:

  • Joycie O’Connor, the decedent’s wife who was with him every day in the hospital, died while this case was on appeal.
  • Between the two admissions to Kingston Hospital, the decedent was cared for at home by his wife and Willcare, Inc., a home health agency. It was sued along with the hospital. After its motion for summary judgment was denied, plaintiff settled with Willcare for $200,000.

On August 31, 2006,  after his usual morning coffee at home in Staten Island, Robert Messina got up and went outside to drive to work. He never made it past the outside of his car where his wife found him – without his keys, shirtless and confused.

An ambulance was called and the 58 year old Messina was taken to the local hospital where he presented with an acutely altered mental status and fever. He was intubated and sedated to facilitate a full work-up, including a lumbar puncture to rule out encephalopathy (brain disease).

After four days in the hospital, doctors noted the presence of a Stage IV pressure ulcer (a bed sore) on Mr. Messina’s right hip.

In a Stage IV pressure ulcer, the skin breakdown extends into the muscle and can extend as far down as the bone. Usually lots of dead tissue and drainage are present:

Messina developed many other bed sores, infections and significant debilitating complications over two months of treatment until he was discharged to a nursing home on October 27, 2006 where he remained (except for three readmissions to the hospital) until October 24, 2007 when he was discharged to home and cared for thereafter with visiting nurse services.

In his ensuing lawsuit, Messina claimed the hospital was negligent because the nurses failed to render appropriate care which led to (a) the development of bed sores and (b) the development of infected bed sores.

The defendant contended that Messina came into the hospital with a life threatening condition, “on death’s doorstep,” and that neither the doctors nor the nurses who treated him did anything wrong.  Defense counsel told the jury that Mr. Messina’s “biggest problem was his lifestyle” – he was morbidly obese (375 pounds) , diabetic, had hypertension and had been a heavy smoker for 40 years – and that as a result Messina developed respiratory problems as well as a kidney problem requiring temporary dialysis in the hospital. Thus, counsel argued, the hospital staff “saved his life” and did not cause plaintiff’s pain and suffering.

Plaintiff’s counsel countered that the injuries sustained in this case were foreseeable and preventable and that Mr. Messina was literally abandoned for days at several critical times by the nurse in charge of wound care treatment.  Furthermore, the fact that Mr. Messina had serious medical conditions that landed him in the hospital, counsel argued, was not at all a reason to exculpate the hospital from negligence; rather, it required “greater vigilance” and a departure from the “cookie-cutter care” that was rendered and not changed during plaintiff’s initial admission.

Plaintiff’s emergency medicine and wound care expert, Kelly Johnson-Arbor, M.D., made three findings:

  1. treatment of the pressure ulcers was not adequate and kept them from getting better,
  2. plaintiff was not provided with appropriate pressure relief surfaces (such as a bed specifically designed for patients as overweight as plaintiff was), and
  3. the nursing staff did not look for the presence of osteomyelitis which was very likely present during his first admission.

The type of bed (which is used with a six inch thick mattress), from Big Boyz Industries, that plaintiff’s expert testified should have been used to give plaintiff more pressure relief and reduce the likelihood of osteomyelitis:

On June 3, 2011, the Richmond County jury found that the hospital was negligent in its care and treatment of plaintiff during his initial two month admission and they awarded damages in the sum of $5,402,748 as follows:

  • pain and suffering damages in the sum of $2,992,000 ($1,000,000 past – five years, $1,992,000 future – 16.6 years)
  • future medical costs in the sum of $2,193,748
  • future lost earnings (Messina had been a kitchen designer) in the sum of $162,000 (3.6 years) and
  • loss of services and economic damages to plaintiff’s spouse in the sum of $55,000

In Messina v. Staten Island University Hospital (2d Dept. 2014), both the liability finding and the damages awards have been affirmed.

The court’s decision mentions that plaintiff sustained skin ulcers but otherwise contains no mention at all of the extensive injuries in this case which include:

  • development and progression of right hip sacral decubitus ulcers, Stage IV
  • infection of right hip ulcer with osteomyelitis leading to a dislocated hip that needs replacement surgery but doctors have declined to operate because the bone is chronically infected
  • bilateral buttocks decubitus ulcers, Stage IV
  • right heel and bilateral feet decubitus ulcers, Stage IV
  • scrotum and penis ulcers
  • severe infections of ulcers
  • more than a dozen surgical debridements
  • inability to take care of bodily and toilet functions
  • constant pain requiring Morphine and Percocet
  • massive scarring
  • permanent confinement to wheelchair (except for being able to take a few steps with a walker)

Inside Information:

  • There was confusion in the courtroom when the jury announced its verdict. After awarding $1,000,000 for five years of past pain and suffering they awarded only “$120,000 for 11.6 years” for future pain and suffering. Plaintiff’s counsel, Mitchel Ashley, asked the judge to bring the jury back and question them because it appeared that the jurors intended the $120,000 to be multiplied, and by 16.6 (not 11.6) years, in order to come up with the actual amount for total future pain and suffering.  Also, the jury initially awarded “$132,153.50 for 16.6 years” for future living expenses. After questioning the jurors and sending them back to deliberate twice more, it became perfectly clear that their intention was to award $1,992,000 for future pain and suffering and $2,193,748.10 for future medical expenses (in each case, for 16.6 years).
  • Defense counsel highlighted the fact there was no diagnosis of osteomyelitis in the initial admission records of the hospital and argued that the wound infection did not occur until plaintiff was at the nursing home. Plaintiff’s wound care expert, though, testified that either an MRI or a bone scan is the definitive test to evaluate osteomyelitis, neither was performed and this failure prevented early diagnosis of and treatment for chronic osteomyelitis (without which wounds were kept from healing and further debilitating infections developed).
  • The jury found that the nursing home had also been negligent in the manner in which it cared for plaintiff  and that its conduct contributed to causing plaintiff’s ulcers or osteomyelitis. The jury apportioned liability 75% to the hospital and 25% to the nursing home. Before trial, though, plaintiff had voluntarily discontinued his lawsuit as against the nursing home. Accordingly, the hospital remained the sole defendant liable to pay the damages awarded.
  • Charles Kincaid, Ph.D., testified as a life care planner expert for plaintiff (the defense did not call its own expert) and the jury essentially accepted his figures as to plaintiff’s future medical expenses.