Conscious Pain and Suffering

On June 29, 2005, Concetta Russo-Carriero, a 56 year old paralegal, was abducted, stabbed twice with a knife and murdered in the parking garage of a White Plains shopping mall.

The murder took place on the 7th floor of this parking lot at the Galleria Mall.

The perpetrator, 43 year old Phillip Grant, was a convicted rapist who’d already spent 25 years in prison. He specifically selected the garage to commit his crime because of its lax security and spent two hours there lurking around and looking for someone whose car he could hijack and drive to Connecticut.

In 2007, Ms. Russo-Carriero’s executors commenced a wrongful death lawsuit against the City of White Plains (the owner and operator of the garage).

Following the trial in 2014, the Westchester County jurors determined that the city was at fault finding that (a) the incident was foreseeable, (b) the city failed to provide minimal precautionary measures to secure the garage, and, (c) the city’s negligence was a substantial factor in causing the death.

The jury also found that the criminal conduct of the murderer (who was caught quickly, confessed, convicted and sent to jail for 25 years to life) was not a substantial factor in causing Ms. Russo-Carriero’s death. Here is the jury charge in which the trial judge explained to the jurors the foreseeability of criminal conduct, lack of security and apportionment of fault issues.

Pain and suffering damages, as set forth in the verdict sheet, were assessed as follows:

  • from the moment Ms. Russo-Carriero realized she was going to be gravely injured or die and the moment she sustained a physical injury – $1,000,000
  • from the moment of physical injury to the moment of death – $500,000

The defendant appealed arguing that the case should have been dismissed on the basis of governmental immunity because its implementation of security measures at the garage involved the discretionary allocation of police resources. Furthermore, the city argued that it did not breach its duty to provide adequate security. Finally, the city argued that the jury was wrong in failing to assign any portion of the fault to the perpetrator of the attack (who was not named as a defendant in the civil suit) and that there was no evidentiary basis for the award of $500,000 for conscious pain and suffering (for the period after the stabbing).

In Granata v. City of White Plains (2d Dept. 2018), the appellate court rejected all of defendant’s arguments except the one regarding apportionment of fault (which it modified – assigning 35% to the murderer, reducing defendant’s share to 65%).

In affirming the $500,000 award for the pain and suffering Ms. Russo-Carriero sustained after she was stabbed, the court stated that there was enough circumstantial evidence that she experienced some level of cognitive awareness after the stabbing. Here are the physical injury details:

  • a witness heard terrified screams
  • decedent’s belongings were strewn about indicating a struggle after she was stabbed
  • there was blood on the ground far enough away from the location of the stabbing indicating that she was stabbed in one place in the garage and then engaged in a struggle before ultimately dying in a different location in the garage
  • a passerby found Ms. Russo-Carriero on the ground bleeding and he saw her eyes moving
  • a police officer testified that Ms. Carriero had a pulse and was breathing as she lay dying on the garage floor and that her lips moved in response to his attempt to question her about what happened

The pre-injury pain and suffering award of $1,000,000 was not challenged as there was evidence (from the perpetrator’s confession) that Ms. Russo-Carreiro was slowly walked at knife-point for about 260 feet in the garage and that she initially knocked the knife away prior to being stabbed.

Inside Information:

  • The jury also awarded wrongful death damages to decedent’s husband ($155,000) and her two children ($310,000).
  • The murderer confessed to police that he planned that day to kill a white person and he was the first person to be tried and convicted for murder as a hate crime in Westchester County.
  • In 2007, New York enacted the Sex Offender Management and Treatment Act.

On August 11, 2008, Elvia Collado was 22 years old and working  as a counselor for developmentally disabled kids while attending college at night. That was the day she died when Waldo Vargas, her boyfriend of three years, crashed his car while driving intoxicated on the Belt Parkway at Springfield Boulevard in Queens. He lost control, hit a tree and killed Elvia who was a front seat passenger wearing a seat belt.

The Crash Scene:

Ambulance personnel responded quickly. Elvia was extricated from the car and rushed to Jamaica Hospital where doctors intubated her and prepared her for surgery to explore what appeared to be massive internal injuries. Tragically, she could not be saved and Elvia was pronounced dead about three hours later.

As administrator of her daughter’s estate, Elvia’s mother brought a lawsuit against Vargas seeking damages for her daughter’s pre-death conscious pain and suffering.The defendant answered the lawsuit denying liability and asserting nine affirmative defenses.

Liability was not a serious issue as Vargas pled guilty to vehicular homicide and eyewitnesses estimated he was traveling at as much as 100 miles per hour. The trial judge therefore directed a verdict in plaintiff’s favor.

At trial, the Queens County jury awarded $549,000 as follows:

  1. $250,000 for pain and suffering
  2. $275,000 for punitive damages and
  3. $24,000 for economic loss

The entire award has been affirmed in Espinal v. Vargas (2d Dept. 2012).

Plaintiff was able to prove that there was pre-death conscious pain and suffering based upon the following testimony of an expert pathologist, William Manion, M.D.:

  • EMS personnel at the scene within minutes recorded a Glasgow Coma Score (“GCS”) of 4 and observed that Ms. Collado moaned and groaned in response to questions about pain
  • upon arrival at the hospital, it was noted that Ms. Collado was “in acute distress,” her GCS was 5 and she had a low level of consciousness
  • the car accident caused various painful injuries including rib fractures, disarticulation of the clavicle, lacerations and hemorrhages to the lungs and abdominal bleeding, all of which, he said, resulted in sharp, terrible pain
  • Ms. Collado was conscious for about 39 minutes until she was placed under general anesthesia before surgery

 Inside Information:

  • The defendant did not testify, nor did he offer any witnesses.
  • In closing arguments, plaintiff’s attorney suggested a pain and suffering damages award of between $500,000 and $1,000,000; defense counsel argued that Ms. Collado was unconscious and unresponsive to pain and therefore he suggested an award of zero.

 

Cheryl Thurston lived in a group home facility operated by New York State’s Office for People with Developmental Disabilities. The residents at 8 Hilltop Drive in Pittsford all had developmental disabilities and each was subject to varying degrees of supervision with regard to things like mobility and safety.

Ms. Thurston was mentally and physically handicapped and she had a seizure disorder. There was a written plan in effect prepared by the state that specified, among other things, that she required one on one supervision in the bathtub.

Unfortunately, on August 30, 2008, Ms. Thurston was left completely unattended for several minutes sitting on the toilet while water was running for her bath. When her attendant returned to the room, she found Ms. Thurston unresponsive in the bathtub.

Cheryl had suffered a seizure and then drowned. She was rushed to the hospital but never regained consciousness and was pronounced dead 14 hours later.

Under New York law – Estates, Powers and Trusts Law Section 5-4.3 –  these are the two claims that may be brought to recover damages for a person’s death:

  1. the survivorship claim, which belongs to the estate for the decedent’s pain and suffering prior to death and
  2. the wrongful death claim, which belongs to the distributees (i.e., the heirs) who have suffered a pecuniary loss by reason of the death

In Thurston v. State of New York (Court of Claims 2013), both claims were  dismissed by the judge before trial because (a) there was no proof that Ms. Thurston suffered after she sustained the seizure which rendered her unconscious and (b) she had not been employed and there was no one who incurred an economic loss due to her death.

The judge, Renee Forgensi Minarik, was clearly troubled by her decision finding it “repugnant” that she had to enforce New York’s wrongful death law that “places no intrinsic value on human life.” She called upon the legislature “to address this fundamental injustice” in the statute.

Inside Information:

  • Claimant’s counsel appears to have been aware of the likely dismissal of the case when he argued on the motion that “the facts in this case cry out for an expansionist interpretation” of the statute. Any such expansion now awaits a successful appeal (unlikely) or action by the state legislature (sought repeatedly by advocates such as the New York State Trial Lawyers Association).
  • Cheryl’s sister, Laurie, submitted an emotional affidavit attempting to convince the judge that there was an economic loss flowing from Cheryl’s death.

 

 

On June 2, 2006 at 6:20 a.m., Helen Skillman was struck and killed by a New York City Transit Authority (NYCTA) bus backing up onto a sidewalk at the 165th Street terminal on Merrick Boulevard in the Jamaica section of Queens.

Here is the bus terminal where the accident took place:

Ms. Skillman, a healthy 79 year old, was on her daily trip from her home in Bayside to Merrick Boulevard where she fed and bathed her disabled aunt. After she got out at the terminal, Helen was struck as the bus backed up onto the sidewalk (a maneuver required when there was another bus parked next to it).

The driver never saw her before he struck twice – once in reverse and again when he moved forward and rolled over her. He stopped when passersby screamed.

Medics arrived within a few minutes and rushed their conscious but dying patient to the local hospital where she went into cardiac arrest. CPR was then performed but it was ineffective and she was pronounced dead.

In the ensuing lawsuit, Dowd v. New York City Transit Authority (Supreme Court, Queens County, Index # 20305/06), there were competing arguments as to fault for the accident:

  1. Plaintiff (Skillman’s surviving daughter, Deborah Dowd) claimed that the bus driver negligently reversed the bus despite a blind spot that prevented him from seeing any pedestrian who may have been behind the vehicle.
  2. Defense counsel claimed that Skillman was at least partially at fault for walking into the path of a slowly backing bus that was visible and making a loud warning noise.

The jury found that the bus driver was 100% at fault and awarded $1,750,000 for pre-death conscious pain and suffering.

The defendants appealed claiming that:

  • some comparative fault should have been assessed on the decedent’s part and
  • the pain and suffering award was excessive

Last week, in Dowd v. New York City Transit Authority (2d Dept. 2010), the liability verdict fully against the defendants was upheld; however, the pain and suffering award was conditionally reduced by $550,000 and now stands at $1,200,000.

In affirming the liability verdict against the bus driver, the court merely cited basic traffic laws (such as VTL Section 1211, which provides that a driver shall not back up unless he can do so with safety) and they stated that the jury’s finding of fault was not contrary to the weight of the evidence.

As to the pain and suffering verdict, the court noted that the decedent was conscious and complaining of pain for 18 minutes – from the time the medics arrived until she went into cardiac arrest at the hospital.

In reducing the award by $550,000, the judges cited three relevant cases but before discussing them, let’s take a look at the details of Ms. Skillman’s injuries available to the judges but not mentioned in the decision, including:

  • pre-injury terror (independent testimony established that she was aware of the bus bearing down on her and tried to get away and thus counsel asked the jury to include this as an element of the decedent’s pain and suffering)
  • she sustained partial amputations and crush injuries of both lower extremities, multiple fractures of both legs, her pelvis, back and ribs
  • she also sustained an evisceration of her abdomen and massive bleeding
  • she opened her eyes at the scene and said "help me" after which she remained awake during the entire ambulance ride while complaining of pain

Here are the three three cases cited in the decision as to the propriety of substantial awards for short periods of pre-death pain and suffering:

  1. Perez v. St. Vincents Hosp. & Med. Ctr. of N.Y. (2d Dept. 2009) – $800,000 (reduced from a $1,500,000 jury verdict) for death following about 30 minutes of choking on food [discussed by us last year, here, in an article on substantial awards for short periods of pre-death pain and suffering]
  2. Twersky v. Busche (2d Dept. 2007) – $1,000,000 (reinstating a jury verdict in that amount after a trial judge had reduced it to $650,000) for the death of a 47 year old pedestrian struck by a van who sustained massive injuries including a fractured femur, collapsed lungs and internal bleeding and who was conscious and in pain for 2 1/2 hours until anesthetized for surgery
  3. Ramos v. LaMontana Moving & Storage, Inc. (1st Dept. 1998) – $900,000 (increased from the trial judge’s reduction of a $3,000,000 verdict to $250,000) for 15-30 minutes of pain following a motor vehicle accident in which the decedent sustained excruciating crush injuries

Two other relevant cases that were not mentioned by the court are:

  • Fa-Shun Ou v. New York City Transit Authority (2d Dept. 2003) – $365,000 for a woman struck by bus who for 15-30 minutes held her friend’s hand and moved her lips before death from skull fractures and cerebral contusions
  • McAndrews v. City of New York (2d Dept. 2002) – $1,000,000 for a 47 year old in car accident with multiple pelvic, rib and humerus fractures and several lacerated internal organs who was conscious and awake at the scene for about 40 minutes but died on the operating table 1 1/2 hours after the accident [decision reversed on other grounds by Court of Appeals]

Inside Information:

  • The jury also awarded $250,000 in pecuniary, or economic, damages, an amount that was not challenged on appeal (there was some testimony as to the decedent’s economic contributions to her daughter and grandchildren but it was minimal given that decedent was retired with a small pension).
  • The defendants argued that evidence relating to the NYCTA’s internal policies as to when to use spotters (employees who stood behind buses to help drivers back up) should not have been allowed but the appellate judges found that it did not result in an unwarranted verdict.
  • The defense presented no witnesses in the damages portion of the trial while plaintiff called three (the EMT, a forensic pathologist and the decedent’s daughter).
  • Plaintiff’s closing argument included a statement that if the jury were to assign even 1% of the fault to the plaintiff then "we can all go home tonight, open our windows, and we are going to hear people laughing at the New York City Transit Authority." The defense argued on appeal that this and other remarks were so inflammatory that they tainted the jury and required a new trial; however, this is one of those "remaining contentions" that the appellate judges stated at the end of their opinion are "without merit."

 

On October 3, 1996, Edith Schaffer, then 67 years old, voluntarily admitted herself to a small psychiatric hospital in Ossining, New York, for an episode of depression and anxiety. The next day, she suffered the first of a series of seizures and was sent to a nearby community hospital for a neurological consult and tests.

Mrs. Schaffer’s tragic odyssey began here:

Two days later, due to an undiagnosed critically low serum sodium level (hyponatremia), Mrs. Schaffer lapsed into a coma where she remained until her death on June 6, 2001.

Her husband sued the hospitals and various doctors and on November 6, 2008 a Westchester County jury found that a by-then deceased doctor at the community hospital was fully liable for Mrs. Schaffer’s injuries and death in that he failed to appreciate the significance of her condition which was easily reversible.

We discussed this case, Schaffer v. Stony Lodge Hospital, here, back in January 2009. The trial judge denied the defendant’s motion to set aside the verdict. Now, a decision has been issued on the appeal and the judges drastically reduced the pain and suffering award from $5,000,000 to $2,500,000.

The appellate court decision in Schaffer v. Batheja (the name of case after some defendants were dismissed) does not mention any of the facts upon which the judges relied in reducing the pain and suffering award except for stating that “Mrs. Schaffer was only sporadically aware of her condition” during the 4 ½ years she lay in a coma.

In cases where a plaintiff is comatose or in a vegetative state, her level of consciousness, if any, will be the key to whether and the extent to which a pain and suffering award will be upheld.

Under the leading case of McDougald v. Garber (Court of Appeals,1989), to support a pain and suffering award plaintiff had to prove that Mrs. Schaffer had “some level of awareness.”

We have dug up the underlying facts and arguments as to consciousness that were brought out at trial. Each side relied upon different aspects of the following evidence:

  • the testimony of doctors and nurses who treated Mrs. Schaffer over the years
  • the testimony of family members who came to visit
  • the opinions of medical experts
  • notations in the voluminous medical records

Plaintiff argued that Mrs. Schaffer was well aware of her condition and experienced pain in view of evidence that she:

  • abducted her shoulder and flexed her upper extremities in response to nail bed pressure
  • opened her eyes on occasion and followed people moving in her room with her eyes
  • cried and tears came to her eyes often when her family came to visit
  • sometimes moved her head on command

The defense argued that there was insufficient proof that Mrs. Schaffer had any level of awareness from the time she lapsed into a coma until her death, based on evidence that she:

  • was comatose at all times
  • had no ability to communicate or consciously sense any pain
  • reacted to painful stimuli only reflexively
  • was in a persistent vegetative state in which eye openings can occur when one is not at all awake

As to the amount of the pain and suffering verdict, the defense argued, successfully, that $5,000,000 was unreasonably excessive and that there should be a drastic reduction. Both sides cited numerous cases to support either a reduction of the award or its affirmance; however, the appellate judges cited none.

Here are the main relevant cases, all except one involving pre-death pain and suffering:

  • Ramos v. Shah (2nd Dept. 2002) – $450,000 for several days in coma before death from cardiac arrest due to medical malpractice
  • Maracle v. Curcio (4th Dept. 2005) – $125,000 affirmed for 40 months of pain and suffering after fall left woman in vegetative state (she never communicated any indication of pain before death)
  • Weldon v. Beal (2nd Dept. 2000) – $5,000,000 for 26 year old woman with severe brain damage from medical malpractice in semi-comatose state for 12 years [not a death case – $2,000,000 past – 12 years, $3,000,000 future – 15 years]
  • Jump v. Facelle (2nd Dept. 2002) – $1,300,000 upheld for eight months of pre-death pain and suffering, including persistent abdominal infection, several surgeries and permanent colostomy and bed sores.
  • Walsh v. Staten Island Obstetrics & Gynecology Associates, P.C. (2nd Dept. 1993) – $650,000 affirmed for infant in vegetative state for eight years before death due to medical malpractice

Mrs. Schaffer’s husband, Paul Schaffer, was awarded $3,000,000 by the jury for his loss of services claim meant to compensate him for his economic loss (i.e., the monetary value of his wife’s services as a homemaker) and his loss of companionship or consortium.

The roles of women in the home and the workforce have changed in many ways over the years.

The law recognizes that physically uninjured spouses may suffer losses when their injured husbands or wives) can no longer assist with tasks in the home or provide the love and comfort previously enjoyed. When these factors are present, judges instruct jurors (PJI 2-315 and PJI 2-316) that they should render monetary verdicts in favor of the uninjured spouse.

The appellate court reduced Mr. Schaffer’s $3,000,000 jury award to $500,000 simply stating that there was “limited proof as to the value of the services rendered" by Mrs. Schaffer to her husband.

Our review of the underlying facts indicates that the appellate judges were influenced by the fact that plaintiff offered no evidence as to the value of his late wife’s homemaker services loss and simply argued that his $3,000,000 award should be upheld in full in light of a 40 year marriage and his dutiful daily visits until his wife’s death. The defense argued persuasively that Mr. Schaffer’s award should be reduced significantly in view of evidence that the marriage had long been strained with no sexual relations for the 10 year period before the coma.

Inside Information:

  • Nurain Batheja, M.D. the internist at Phelps Hospital against whom the jury assessed all of the liability, died in 1997, less than a year after Mrs. Schaffer lapsed into a coma. He was never deposed in the ensuing lawsuit.
  • Before trial, a $1,750,000 settlement was reached with defendants Phelps Hospital and one of its doctors and plaintiff dropped his claims against Stony Lodge and all other defendants except Dr. Batheja. Under New York’s General Obligations Law Section 15-108, therefore, the $3,000,000 appellate award will be reduced by the $1,750,000 pre-trial settlement to $1,250,000.
  • The appeals court also upheld $557,485 in medical expenses but there are Medicare and Medicaid liens related thereto

 

On March 1, 2000 at about 6:30 p.m., New York City Police Officer Luis Rivera was patrolling a high crime area in the Bronx. He was with members of his special narcotics unit and he was acting undercover, in plainclothes. Noticing four men acting suspiciously at the entrance to a four story building on Boynton Avenue, Rivera approached the building and pushed open the door.

Here is 1045 Boynton Avenue, Bronx, New York, where events unfolded that fateful night:

As he entered and after identifying himself as a police officer, the four suspects ran away but Rivera caught Malcolm Ferguson by the arm. Continuing to run away, Ferguson dragged Rivera but when they reached a stair landing and tumbled to the ground Ferguson made it no further and died right then and there.

The 23 year old unarmed Malcolm Ferguson had been shot in the head point blank by Police Officer Rivera while the two of them struggled on the ground.

Rivera said he pulled his gun because he feared for his safety given that it was pitch black in the stairwell and he didn’t know where the other three men were. The officer claimed he hadn’t intended to shoot Ferguson, that the gun went off by accident when he had to grab Ferguson with his gun hand that he hadn’t been able to re-holster due to the struggle.

The Bronx County District Attorney conducted a full investigation and concluded that the evidence supported Officer Rivera’s statement that the shooting was accidental. Nonetheless, Mr. Ferguson’s mother, Juanita Young, brought a wrongful death lawsuit against the officer and the city. After hearing from the officer and his colleagues, the Bronx jury ruled that excessive force had been used and therefore Ferguson’s estate was entitled to damages in the sum of $3,000,000 for pain and suffering and fear of impending death.

Additionally, the jury awarded $7,000,000 in punitive damages finding that the police officer’s actions were wanton and reckless.

In a post-trial decision, the trial judge vacated the pain and suffering award and ordered a new trial as to the punitive damages award.

This week in Ferguson v. City of New York, the appellate court ruled as follows:

  1. the $3,000,000 pain and suffering award dismissal by the trial judge was affirmed and
  2. the punitive damages award was reduced from $7,000,000 to $2,700,000.

As we’ve discussed before, here and here, to support an award for pre-death pain and suffering, there must be proof that the decedent was conscious for some period of time after the underlying incident. Without pre-death cognitive awareness of pain, the courts have consistently held that there can be no sustainable damages for pain and suffering. In other words, there has to be proof that the decedent actually suffered pain and there is no such proof possible when death is instantaneous.

In Malcolm Ferguson’s case, the defense prevailed on their claim that there should be no pre-death pain and suffering award because the decedent died within 60 seconds (according to the coroner) and there were no facts indicating he was conscious for even a moment after the shooting or that he groaned or in any way was aware of his impending death.

The appeals court rejected plaintiff’s claim that the award should be sustained because Malcolm feared his impending death from the moment the chase and struggle began. The evidence indicated that Rivera pulled his gun only a moment before the shooting and Ferguson never even knew the gun had been pulled, was inches from the back of his head and he was about to be shot. He never saw it coming and thus there were no facts to support a claim of fear if impending death.

The court did not discuss but implicitly distinguished and rejected a case relied upon by the plaintiff – Lubecki v. City of New York (1st. Dept. 2003) in which a $3,000,000 pre-death pain and suffering award was affirmed in another type of excessive force by police officers case. There, the officers shot a bank robbery hostage after a standoff. There was evidence that the decedent turned her head and tried to speak to her sister as she lay mortally wounded but before she was pronounced dead an hour later. Additionally and perhaps most critically, before the three gunshots (first to her thigh, then her ankle and finally her chest), the appellate court noted that the decedent experienced pre-impact terror which, along with the significant injuries sustained before her death, supported the pain and suffering award in Lubecki v. City of New York.

As to punitive damages in Ferguson v. City of New York, the appellate court found that there was sufficient evidence for the jury to conclude – as they did – that the officer’s actions were wanton, reckless or malicious. It was therefore within the jury’s power to render an award of punitive damages; however, the court held that $7,000,000 was excessive and it ordered a reduction of the punitive damages to $2,700,000.

Inside Information:

  • The jury in Ferguson v. City of New York also awarded about $317,000 in economic damages to the decedent’s mother with whom he had resided. There was credible evidence that Malcolm had contributed $50 per week to help support his mother and that he helped her with household chores and that he’d have continued to do both for 25 more years.
  • Ferguson’s death was just a month after the acquittal of police officers in the notorious Amadou Diallo case (the civil suit with respect to which later settled for $3,000,000). Five days before his death, Malcolm had been among demonstrators protesting the acquittal and spent the night in jail for disorderly conduct and resisting arrest.
  • In a separate matter, Malcolm Ferguson’s mother, Juanita Young, won $450,000 in pain and suffering damages for wrist injuries caused by the city police. As we discussed, here, Ms. Young was injured when she fell down stairs in 2003 while being arrested in connection with her eviction from her apartment.
     

It was a hot summer day – a great one to be off the city streets and in a cool swimming pool. So, on July 21, 1995, Jeremy Williams, an 18 year old high school senior, went to Betsy Head Pool in Brooklyn. Part of the New York City Parks department system, the pool is huge – 300 feet long and 165 feet wide, holding up to 1,000 swimmers.

Here is the Betsy Head Pool:

At about 6 p.m., lifeguards were alerted to an emergency, a swimmer in trouble. They immediately jumped in and in less than 30 seconds found Jeremy submerged at the bottom 4 ½ feet below the surface. He appeared to be unconscious and not breathing. After frantic mouth-to-mouth resuscitation, Jeremy was rushed by ambulance to the hospital. He was unconscious but had a heartbeat. He was placed on life support but died there from respiratory failure 11 days later.

It was later determined that Jeremy drowned because while in the pool he had an epileptic seizure. He’d begun to have seizures two years earlier in which he’d stare, shake and fall to the floor with his whole body shaking violently. These grand mal seizures would usually last a minute or so. Jeremy was prescribed anti-convulsant drugs but hospital tests showed clearly that he hadn’t taken his medication on that fateful day before going swimming.

Jeremy’s mother sued the city claiming that lifeguards were negligent and should have observed her son in distress in time to rescue him. At trial in 2006, there was expert medical testimony that Jeremy would have been afloat for at least a minute in the throes of a convulsive episode consisting of violent shaking of his arms and legs before he finally sank to the bottom of the pool.

A grand mal seizure often begins with a cry and loss of consciousness, then stiffening and jerking of limbs, before stopping, like this:

 

The city contended that its lifeguards acted properly, if not heroically, and that in any event, it was Jeremy’s failure to take his medication that should be deemed the sole cause of his drowning.

The jury found that the city was 25% at fault with Jeremy himself bearing the lion’s share of responsibility, 75%, due to his failure to take his anti-seizure medicine.

Mrs. Williams was awarded $23,000 for her economic damages (the amount Jeremy would have contributed to household expenses but for his death) but when it came to Jeremy’s pain and suffering the jury declined to award anything at all. Zero.

Both sides appealed. The city claimed that (a) its 25% share of liability was too high and it should be deemed completely free of any fault and (b) an award of zero for pain and suffering was proper  because Jeremy was comatose and unaware of his condition. Plaintiff claimed that (a) the failure to award damages for pain and suffering was against the weight of the evidence and (b) the jury should not have assessed Jeremy with any portion of fault.

In Williams v. City of New York (2nd Dept. 2010), the appellate court judges agreed with the plaintiff’s contention that the jury was wrong to award no pain and suffering damages . The judges concluded that Jeremy Williams had some awareness during the 11 days before he died based on proof that Jeremy:

  • squeezed a nurses’ hand upon request,
  • mouthed words,
  • opened his eyes spontaneously, and
  • responded to tactile and painful stimuli.

These specific findings of cognition, the court held, meet the test set forth in the leading case of McDougald v. Garber (1989), where New York’s highest court ruled that pain and suffering damages may be awarded only when it’s been demonstrated that an injured person has “some level of awareness” regarding his condition or pain. Therefore, the court in Williams v. City of New York directed that pre-death pain and suffering damages should have been awarded and a new trial must now held to determine the amount.

I expect that the city will vigorously contest the amount of damages and seek to convince the new jury that only a minimal amount should be awarded whereas plaintiff will seek millions. Whatever sum the new jury awards will be reduced by 75% because the first jury’s apportionment of liability 75% to Jeremy and 25% to the city has been affirmed on appeal.

We will follow this case closely and should the new verdict be challenged by either party as too little or too much, the following decisions will likely be relied upon by the trial judge or a new appellate bench:

  • Johnson v. Jacobowitz (2nd Dept. 2009) – No damages for a 70 year old’s pre-death pain and suffering in a medical malpractice case where death occurred five days after surgery from which the decedent never woke up.
  • Maracle v. Curcio (4th Dept. 2005) – $125,000 for pain and suffering where a woman fell down stairs and thereafter did not communicate any indication of pain. Death resulted 40 days later during which time the decedent was in a persistent vegetative state but had some level of awareness.
  • Ramos v. Shah (2nd Dept. 2002) – $450,000 (reduced from $900,000) for the estate of a two year old in a medical malpractice case where the infant’s dehydration was untreated by a doctor, he went into hypovolemic shock the next day, suffered a heart attack and lapsed into a coma before dying 10 days later. An expert testified as to the boy’s pain from dehydration and his father testified as to his son’s complaints of pain.
  • Weldon v. Beal (2nd Dept. 2000) – $2,000,000 for a 25 year old woman’s 12 years of pain and suffering after medical malpractice caused severe brain damage and left her in a near-comatose state. This was not a death case.

Undoubtedly, the pain and suffering award in Williams v. City of New York will also be affected by the outcome of the pending appeal in Schaffer v. Stony Lodge Hospital, a medical malpractice case we discussed, here. A Westchester County jury awarded the estate of Edith Schaffer $5,000,000 for her pain and suffering while in a coma for 4 ½ years before she died. The defendant has appealed arguing that the verdict is utterly excessive and if not set aside it should be drastically reduced.

We will, of course, report on the outcome of Schaffer v. Stony Lodge Hospital just as soon as it is decided by the appellate court. And we will see how a new jury assesses damages in the new trial in Williams v. City of New York.
 

New York firefighter Kevin Deane was skiing in lovely Vail, Colorado on April 1, 2007 when he fell and suffered a spinal cord injury requiring cervical discectomy and fusion surgery that was performed there without complication. When he flew back to New York City to undergo rehabilitation at Mount Sinai Hospital on April 6th, tragedy ensued. Kevin was admitted to the hospital that afternoon (a Friday) and he died about 60 hours later at 2:30 a.m. on April 9th (a Monday). He was 39 years old.

The cause of death was hemorrhage and aspiration of blood caused by the erosion of the surgically implanted hardware into the esophagus.

Here is what the hardware in the neck looks like after fusion surgery:

Claiming that this was a preventable death, a wrongful death lawsuit was filed against the hospital seeking not only damages for negligence but also punitive damages. It’s extremely rare that a punitive damages claim (in which plaintiffs must prove reckless indifference) is even allowed to be considered by a jury in a medical malpractice case. And that’s what the hospital argued here in making a motion to dismiss that part of the suit; however, the judge disagreed – strongly – and issued a decision released this week in Deane v. Mount Sinai Hospital. The punitive damages claim was allowed to proceed and be considered by the jury.

The judge stated that the hospital appeared to have made the following tragic mistakes:

  • after his admission, no attending physician ever saw Mr. Deane during the 2 1/2 days at the hospital
  • the weekend on call attending physician never showed up because he didn’t get a hospital email advising him he was on call and no one followed up to tell him
  • the other on call attending was unaware that her colleague had failed to show up for work and unaware that half of the 100 rehab patients (including Kevin Deane) were not under the care of an attending

It angered the judge that Mr. Deane was, as she described it, effectively abandoned for over two days prior to his death and that no one ever even tried to tell hospital administration that the on call attending was missing. This appeared to constitute gross negligence, recklessness and gross indifference to patient care as did the hospital’s lack of a system in place that would alert an administrator when an on call attending failed to arrive. Although this was merely a pre-trial decision on a motion to have the punitive damage claim dismissed, the judge’s strong language all but held as a matter of law that the hospital was reckless.

The decision was rendered two weeks before the trial date. Not surprisingly, the case settled (for an undisclosed amount) before the jury was picked.

Inside Information:

  • Mr. Deane was unmarried and without children and therefore the damages that could have been awarded in this case were pretty much limited to those for his pre-death conscious pain and suffering during his 2 1/2 days at the hospital [the length of time a decedent suffers before death will greatly affect this element of damages, as we discussed, here and here]
  • punitive damages against an employer (here, the hospital) for acts of its employees (here, the medical staff) are imposed only where management has authorized or participated in the reckless conduct – in this case plaintiff would have claimed that management’s inaction regarding the faulty email notification system warranted a punitive sanction

Even though the judge felt there was recklessness in this case, it would have been up to the jury to make that finding, or not. And because punitive damages are so rarely awarded in New York medical malpractice cases, and the standard of proof is so high and strict, there may have been a successful defense appeal of such an award had it been made.

One thing is perfectly clear, though: this was a tragic death and no amount of money can ever rectify the loss to the family of this young man.

 

 

 

Dolores Johnson was 70 years old when she suffered a stroke and had to undergo surgery for a clot on a pre-existing mitral valve. There was a danger that the clot would break off and block a blood vessel. After the surgery, Ms. Johnson never woke up and five days later she died. Cause of death: severe anoxic injury to her brain.

In her husband’s ensuing medical malpractice lawsuit, the jury found that the cardiothoracic surgeon deviated from accepted medical practice in performing the surgery and in utilizing a relatively new technology called "heartport" (sometimes used as an alternative for the traditional aortic clamp).

Here is the traditional aortic clamp:

So, defendant’s malpractice was established in Johnson v. Jacobowitz and plaintiff won the case but then came the issue of damages. To recover pain and suffering damages in a wrongful death case, as we’ve noted before, here and here, plaintiff must show that the decedent experienced conscious pain and suffering before her death. That’s where the case fell apart for Johnson.

This week, the appeals court in Johnson v. Jacobowitz upheld the trial judge’s finding that there was insufficient evidence of awareness on the part of Ms. Johnson to make out a case with respect to conscious pain and suffering. Therefore, the the trial judge was correct in refusing to allow the jury even to consider the pain and suffering issue.

Proving conscious pain and suffering is difficult in cases involving comas or so-called vegetative states. It can be done, though, through medical testimony such as a neurologist testifying about the testing he did and the observations he made. Family members and nurses can show that the decedent cried out in pain, winced and so forth.

Walsh v. Staten Island Obstetrics & Gynecology Associates, P.C. is an oft-cited case in this area. There, an appeals court upheld a verdict of $650,000 in the case of an infant in a vegetative state for his entire eight year life. The court found that his level of awareness was established by testimony that he cried when he received painful stimuli and smiled and laughed at pleasurable stimuli.

Colombini v. Westchester County Health Care Corp. is a tragic case involving the death of a six year old boy. Michael Colombini was at the hospital undergoing magnetic resonance imaging when he was struck by an oxygen tank as he lay inside the MRI machine. He died from his injuries 53 hours later.

This is an MRI machine similar to the one in the Colombini case:

A medical malpractice case was brought by Michael’s parents against the hospital and several others including the machine manufacturer, nurses, technicians and doctors. Damages were sought for Michael’s pain and suffering. Additionally, plaintiffs claimed punitive damages (recoverable when a defendant engages in willful or wanton conduct evidencing an utter indifference for the safety of others). Much of the still pending litigation from this 2001 accident relates to the punitive damages claim (trial judge’s July 2009 decision here) and the claims against defendants other than the hospital (which acknowledged its responsibility early on and offered $1,000,000 to settle).

The issue of pain and suffering in the Colombini case made its way to the appellate court. Both sides submitted medial affidavits.

  • Defendants’ neurologist claimed that because Michael had been sedated before the MRI procedure, he was already unconscious at impact and that after impact the brain damage from the impact made him unable to feel pain.
  • Plaintiffs, however, submitted an affidavit from an anesthesiologist who stated that the sedatives merely put Michael into a tranquil state and that he was awake and experienced significant pain and suffering.

The appellate court in the Colombini case found that the competing medical affidavits resulted in issues of fact to be determined by a jury as to whether Michael did indeed experience conscious pain and suffering.

Whether plaintiffs prevail in the Colombini case as to pain and suffering or not, they will still face the fact that it was only two days after the accident that death occurred. Courts have necessarily addressed the issue of the amount of time a decedent suffered before death and have adjusted pain and suffering awards accordingly, as we discussed here.

 

A Westchester County jury recently returned a verdict of $5,000,000 in favor of the estate of a woman who died because of medical malpractice. It will not stand up on appeal.

In Schaffer v. Stony Lodge Hospital (Supreme Court, Westchester County; Index # 4155/99; 11/6/08), a 68 year old woman with long standing depression went to a small psychiatric  hospital (Stony Lodge) for a change of her anti-depressant medication. While there, she suffered a seizure and so was transferred to a community hospital (Phelps Memorial Hospital). There,  she had another seizure, a heart attack and then became comatose and never regained consciousness. She died 4 1/2 years later.

Liability for the medical malpractice in failing to timely treat the hyponatremia was clear enough so Phelps Hospital and one of its doctors settled early on for $1,750,000. The main doctor who committed the malpractice, though, Narain Batheja, refused to settle and the case came to trial and the jury found that  Mrs. Schaffer’s suffering, albeit while comatose, had a value of $5,000,000.

No doubt this case will be appealed and there are several issues:

  • Was there enough evidence that Mrs. Schaffer actually experienced conscious pain and suffering while comatose? Plaintiff points to statements from family members and nurses that Mrs. Schaffer followed her caregivers with her eyes and cried at times. The defense will no doubt point out that there was no medical examination pre-death as to level of consciousness.
  • The other issue that will be heavily contested on appeal is the reasonableness of $5,000,000 as pain and suffering damages for 4 1/2 years while comatose

Here are some cases that indicate that the $5,000,000 may not withstand an appeal:

  • Jump v. Facelle (2d Dept., 2002) – In this case the court held that $1,300,000 was reasonable for eight months of pre-death pain and suffering, including persistent abdominal infection, several surgeries, and a permanent colostomy and bed sore.
  • Ramos v. Shah (2d Dept., 2002) – The court ruled that $900,000 pre-death pain and suffering was too high and that $450,000 was proper and reasonable in a case in which a decedent died due to medical malpractice resulting in a cardiac arrest and his lapse into a coma for several days before death. There was some testimony that the decedent had some level of consciousness for several days.
  • Weldon v. Beal (2d Dept., 2000) – In this medical malpractice case, the Kings county jury awarded a brain damaged plaintiff $13,500,000 for pain and suffering ($3,000,000 past; $10,500,000 future) despite the fact that she was in a vegetative state. There was evidence that she had some level of awareness (and that she’d need almost $2,000,000 of medical expenses for the rest of her life). The appellate court held that the pain and suffering verdict was too high and reduced it to $5,000,000 ($2,000,000 past; $3,000,000 future).

Insider Information:

  • Plaintiff’s attorney in Schaffer v. Stony Lodge Hospital would have accepted a total of $3,000,000 to settle all claims – meaning that defendant Batheja could have settled for $1,250,000 (and I hear that plaintiff’s counsel at trial would have reduced that figure to $750,000).
  • In this case, the non-settling doctor’s insurance carrier, Frontier Insurance Company, was stubborn and would not concede liability in a case in which those involved on all sides now tell me was indefensible.
  • The plaintiff’s husband was also awarded $3,000,000 in addition for loss of consortium. That’s the claim of the non-injured spouse for loss of services and it usually involves the disruption to the marriage, the many hours spent caring for the injured person, the lack of intimacy and the like. It’s usually around 10% of the injured spouse’s pain and suffering verdict and the appellate courts can and will determine that loss of services verdicts should be reduced in appropriate cases. This will be one of those cases if not settled before an appeal is concluded. In my experience, this loss of services claim will end up nowhere near $3,000,000.

UPDATE: As we predicted, on September 14, 2010, in Schaffer v. Batheja (2d Dept. 2010), the appellate court drastically reduced the pre-death pain and suffering award to $2,500,000. Additionally, the court reduced Mr. Schaffer’s jury award to $500,000. The decision is discussed by us here.