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.

Between 1966 and 1972, Ralph North  was exposed to asbestos at the Long Island Lighting Company (“LILCO”) power station in Northport where he worked as a welder during construction of a power station.

The LILCO power plant

Asbestos is a mineral whose fibers are invisible and, when cut, they float around in the air and can without notice be breathed into one’s lungs and cause mesothelioma (a malignant cancer that develops on the linings of the lungs).

Asbestos-2_l

Often, this terrible disease’s symptoms may not appear for 20-50 years. That’s what happened to Mr. North who was diagnosed with mesothelioma in January 2013 when he was 78 years old.

He promptly sued claiming that LILCO failed to post warnings or provide protective materials to prevent the amount of asbestos dust he was exposed to by activities such as applying asbestos to insulate boilers, insulating pipes with asbestos-containing materials and cutting asbestos block. The defendant argued that it did not exercise supervision or control over the work of its various contractors. There was evidence, though, that LILCO specified the use of asbestos of insulating pipes and boilers and even specified how the product should be mixed and applied.

On September 29, 2014, a Manhattan jury returned a verdict finding that National Grid Generation LLC (LILCO’s successor) was liable for pain and suffering damages resulting from asbestos exposure that caused plaintiff’s mesothelioma. The jurors then awarded pain and suffering damages in the sum of $7,000,000 ($3,500,000 past – two years, $3,500,000 future).

In North v. National Grid Generation LLC (1st Dept. 2016), both the liability and damages verdicts have been affirmed.

Here are the injury details:

  • In mid-2012, Mr. North began to suffer from shortness of breath, difficulty breathing and chest pain; he presented to a hospital in January 2013 where he was diagnosed with a left pleural effusion and a left lung collapse and underwent a video assisted thoracoscopy (surgical insertion of an endoscope to visually examine the pleura and lungs and, in this case, to remove six liters of fluid that had filled up his entire chest cavity)
  • second thoracoscopy within a few weeks, this time at Memorial Sloan Kettering Hospital at which time it was clear that there was no area of the lung that could be considered free of mesothelioma which was so extensive that no surgery could remove it
  • vaccinia virus experimental treatment using a benign virus to elicit a response from the body that would limit the mesothelioma
  • thoracotomy (opening the chest wall with a large incision) and pleurectomy (surgical removal of diseased pleura – part of the lining of the lung)
  • radiation  – 20 sessions to try to limit (not cure) the spread of the cancer; the radfiation itself caused difficulty swallowing, esophageal pain, appetite and weight loss, near constant hacking cough and sleep loss
  • limitation of all significant physical activities because of difficulty breathing with greatly diminished lung capacity
  • grim fatal prognosis (as set forth in the testimony of plaintiff’s expert pulmonologist Albert Miller, M.D.) as the disease progresses into adjacent and distant tissues causing increasing symptoms of pain, shortness of breath, difficulty breathing,  need for larger and larger doses of narcotic pain medication, loss of appetite, weight and strength

Inside Information:

  • plaintiff’s exposure to asbestos at LILCO was for about two and a half years total
  • defendants did not challenge the excessiveness of the award for past pain and suffering
  • the parties did not request a jury charge concerning life expectancy and the verdict sheet did not include a period of years for the future pain and suffering element of damages
  • in his summation as to damages, plaintiff’s attorney suggested $5,000,000 for past pain and suffering plus $10,000,000 for the future

TWO OTHER MESOTHELIOMA CASES:

  1. Konstantin v. 630 Third Avenue Associates (Court of Appeals 2016) – $8,000,000 ($4,500,000 past – 33 months, $3,500,000 future – 18 months) reduced from $19,000,000 by the trial judge for a 55 year old man whose exposure to asbestos resulted from working with  joint sealing compounds at construction sites in 1976 and 1977.  In January 2010, he was diagnosed with mesothelioma of the tunica vaginalis, an asbestos-related cancer of the tissue lining the testicles. He endured five surgeries, including the removal of one testicle and his scrotum; two rounds of chemotherapy; and one round of broad-ranged radiation.  Six months after his diagnosis, the mesothelioma had spread to his pleura, the membrane lining his lungs. He suffered three years of extreme pain and swelling and died on June 6, 2012. The trial judge’s reduction was affirmed by the Appellate Division but the defendant appealed to the state’s highest court claiming it was prejudiced when it was compelled to try the case jointly with another mesothelioma case involving different parties. The Court of Appeals, though, affirmed the Appellate Division’s order.
  2. Dummitt v. A.W. Chesterton (1st Dept. 2014) – $8,000,000 ($5,500,000 past – 27 months, $2,500,000 future – six months) reduced from $32,000,000 by the trial judge for a 67 year old man whose exposure to asbestos came from maintaining valves in boiler rooms aboard U.S. Navy ships between 1960 and 1977. He began to experience symptoms of pleural effusion in 2009 and was diagnosed with pleural mesothelioma in April 2010. He endured four very painful thoracenesis procedures to relieve crushing pressure in his lungs, thoracic surgery, a complete lung collapse and three rounds of chemotherapy. This case was tried jointly with the Konstantin case discussed above and the trial judge’s reduction was affirmed in the same decision that affirmed the reduction in the Konstantin case. The defendant in this case, though, did not appeal further.