Coolidge v. United States

• Decision Date: 25 June 2020
• Docket Number: 10-CV-363S
• Parties: WILMA COOLIDGE as Executor of the Estate of Howard Southard, Deceased, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.
• Court: U.S. District Court — Western District of New York

WILMA COOLIDGE as Executor of the Estateof Howard Southard, Deceased, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.

10-CV-363S

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

June 25, 2020

DECISION AND ORDER

I. INTRODUCTION

Wilma Coolidge commenced this action pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346 and 2671, et seq. ("FTCA") and New York law seeking damages from the United States (the "Government") for injuries leading to the death of Howard Southard ("Mr. Southard") sustained while in the care of medical professionals working at a hospital administered by the United States Department of Veterans Affairs ("VA"). Plaintiff (Mr. Southard's sister) alleges medical malpractice and wrongful death. The case was tried over seventeen days from January 26 to November 14, 2018. Parties then submitted proposed Findings of Fact and Conclusions of Law and written summations (Docket Nos. 212, 205, 200, 218 (plaintiff's post-trial submissions); Nos. 215, 195, 196, 216 (defendant Government's post-trial submissions)).

Having considered the evidence admitted at trial, assessed the credibility of the witnesses, and reviewed the post-trial submissions of the parties, this Court makes the following findings of fact and conclusions of law pursuant to Rule 52 of the Federal Rules of Civil Procedure¹ ("Rule 52") and ultimately concludes for the reasons set forth below, that Plaintiff has proved that Defendant is liable for Mr. Southard's injuries and death.

II. LEGAL STANDARDS

A. Federal Tort Claims Act

Under the FTCA, the United States is liable in the same manner as a private person for the tortious acts or omissions of its employees acting within the scope of their employment "in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b)(1); see also Molzof v. United States, 502 U.S. 301, 305 (1992) ("the extent of the United States' liability under the FTCA is generally determined by reference to state law") (citations omitted). Accordingly, a federal court presiding over an FTCA claim must apply "the whole law of the State where the act or omission occurred." Richards v. United States, 369 U.S. 1, 11 (1962); see also Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994) ("State law applies to an FTCA claim"). The substantive law of New York applies for determining claims for wrongful death or medical malpractice under the FTCA, Makarova v. United States, 210 F.3d 110, 114 (2d Cir. 2000); Jimerson v. United States, No. 99CV954E, 2003 WL 251950, at *1 (W.D.N.Y. Jan. 13, 2003) (Elfvin, J.).

Section 5-4.1 of the New York Estates, Powers and Trusts Law provides that "a personal representative of a decedent may maintain a wrongful death action provided the defendant would have been liable to the decedent by reason of such wrongful conduct if death had not ensued," LaMarca v. United States, 31 F. Supp. 2d 110, 124 (E.D.N.Y. 1998) (internal quotations omitted) (Docket No. 196, Gov't Proposed Conclusions of Law ¶ 79). This means "'that no action may be maintained by the representative unless the decedent, at the time of his death, could have maintained an action for the underlying tort.'" Id. (quoting Dundon v. U.S., 559 F. Supp. 469, 475-76 (E.D.N.Y. 1983)).

B. Medical Malpractice under New York Law

When a wrongful death action is premised on a defendant's alleged medical malpractice, the body of law surrounding medical malpractice and its attendant conclusions applies to the claim of wrongful death. See Matos v. Khan, 119 A.D.3d 909, 910-11, 991 N.Y.S.2d 83, 84-85 (2d Dep't 2014).

To establish a medical malpractice claim under New York law, a plaintiff must prove by a preponderance of the evidence: "(1) the standard of care in the locality where the treatment occurred; (2) that the defendant breached that standard of care; and (3) that the breach of the standard was the proximate cause of injury." See, e.g., Milano by Milano v. Freed, 64 F.3d 91, 95 (2d Cir. 1995); Berger v. Becker, 272 A.D.2d 565, 565, 709 N.Y.S.2d 418 (2d Dep't 2000); see generally 1B N.Y. Pattern Jury Instructions: Civil 2:150 (3d ed. 2020) (hereinafter "N.Y. PJI"). Under the first element, the general standard of care in New York requires a physician to exercise

"that reasonable degree of learning and skill that is ordinarily possessed by physicians and surgeons in the locality where he practices. . .. The law holds [the physician] liable for an injury to his patient resulting from want of the requisite knowledge and skill, or the omission to exercise reasonable care, or the failure to use his best judgment."

United States v. Perez, 85 F. Supp. 2d 220, 226 (S.D.N.Y. 1999) (quoting Pike v. Honsinger, 155 N.Y. 201, 49 N.E. 760 (1898)); see also Sitts v. United States, 811 F.2d 736, 739-40 (2d Cir. 1987). New York law also requires a physician comply with the minimum national standards of care, 1B N.Y. PJI 2:150, at 45. An error in medical judgment by itself does not give rise to liability for malpractice, Nestorowich v. Ricotta, 97 N.Y.2d 393, 398-99, 740 N.Y.S.2d 668, 671-72 (2002). Consequently, in order to prevail here, Plaintiff must have shown by the preponderance of the evidence that the medical professionals treating Mr. Southard failed to conform to accepted community standards of practice. Id. at 398, 740 N.Y.S.2d at 671. The "mere fact that a medical procedure was unsuccessful, or had an unfortunate effect, will not support a claim that negligence had occurred." Perez, supra, 85 F. Supp. 2d at 227. And not "every instance of failed treatment or diagnosis may be attributed to a doctor's failure to exercise due care." Nestorowich, supra. 97 N.Y.2d at 398, 740 N.Y.S. 2d at 671. Proving a claim for medical malpractice ordinarily requires expert testimony regarding both a departure from the standard of care and proximate causation. Kerker v. Hurwitz, 163 A.D.2d 859, 558 N.Y.S.2d 388, 390 (4th Dep't 1990); Milano, supra, 64 F.3d at 91.

To establish a fact by a preponderance of the evidence, a plaintiff must "prove that the fact is more likely true than not true." See Fischl v. Armitage, 128 F.3d 50, 55 (2d Cir. 1997) (quotation and citation omitted). Each element must be established by expert medical opinion unless the deviation from a proper standard of care is so obvious as to be within the understanding of an ordinary layperson. See, e.g., Sitts, supra, 811 F.2d at 739-40 (noting that "in the view of the New York courts, the medical malpractice case in which no expert medical testimony is required is 'rare'") (citation omitted); see also Fiore v. Galang, 64 N.Y.2d 999, 1000-01, 489 N.Y.S.2d 47 (1985) ("except as to matters within the ordinary experience and knowledge of laymen, in a medical malpractice action, expert medical opinion evidence is required to demonstrate merit"); Blake v. United States, No. 10CV610, 2017 U.S. Dist. LEXIS 58354, at *3-5 (W.D.N.Y. Apr. 17, 2017) (Skretny, J.).

C. Damages under the FTCA

Any damages in a FTCA action are determined by the law of the state in which the tort occurred, Ulrich v. Veterans Admin. Hosp., 853 F.2d 1078, 1081-82 (2d Cir. 1988), here New York law. "Once a plaintiff establishes negligence as the proximate cause of her injuries, she is entitled to recover 'a sum of money which will justly and fairly compensate ... [her] ... for the loss resulting from the injuries sustained.' Robinson v. U.S., 330 F.Supp.2d 261, 290 (W.D.N.Y. 2004) [Curtin, J.] (quoting Kehrli v. City of Utica, 105 A.D.2d 1085, 1085, 482 N.Y.S.2d 189 (4th Dep't 1984))," Furey v. U.S., 458 F. Supp. 2d 48, 56 (N.D.N.Y. 2006). Plaintiff seeks damages for injuries including pain and suffering, as well as compensation for Mr. Southard's wrongful death, medical bills, and funeral expenses. There are no damages claimed for Mr. Southard's lost wages, as he was retired at the time of his death and did not anticipate returning to work. There are also damages claimed on behalf of Mr. Southard's children as his distributees.

D. Wrongful Death

To prevail as Mr. Southard's representative in this wrongful death action, Plaintiff has to establish

"(1) the death of a human being, (2) the wrongful act, neglect or default of the defendant by which the decedent's death was caused, (3) the survival of distributees who suffered pecuniary loss by reason of the death of decedent, and (4) the appointment of a personal representative of the decedent."

Garcia v. Dutchess County, 43 F. Supp. 3d 281, 298-99 (S.D.N.Y. 2014) (quoting Hollman v. Taser Int'l Inc., 928 F. Supp. 2d 657, 683 (E.D.N.Y. 2013)) (Docket No. 191, Gov't Memo. at 3). New York law limits recovery in wrongful death to fair and just compensation for pecuniary injuries that result from the death, 1B N.Y. PJI 2:320, at 1030; N.Y. Est. Powers & Trusts L. § 5-4.3 (id.). As the Government notes, "thus, damages recoverable in a wrongful death action are limited to compensation for the pecuniary injuries resulting from the decedent's death to the persons for whose benefit the action is brought" (id., citing N.Y. Est. Powers & Trust L. § 5-4.3(a)).

"[T]he essence of the cause of action for wrongful death in this State is that the plaintiff's reasonable expectancy of future assistance or support by the decedent was frustrated by the decedent's death." Gonzalez v. New York City Hous. Auth., 77 N.Y.2d 663, 668, 569 N.Y.S.2d 915, 918 (1991); see also In re Air Crash Near Clarence Ctr., N.Y., 983 F. Supp. 2d 249, 252-53 (W.D.N.Y. 2013) (Skretny, C.J.). Recognized pecuniary injuries under New York law include loss of support, voluntary assistance and possible inheritance by decedents, medical and funeral expenses incidental to death, Parilis v. Feinstein, 49 N.Y.2d 984, 985, 429 N.Y.S.2d 165, 166 (1980); Gonzalez, supra, 77 N.Y.2d 663, 569 N.Y.S.2d 915 (Docket No. 191, Gov't Memo. at 4). These damages do not include those "which could have been recovered in a personal injury action had the decedent survived," Parilis, supra, 49 N.Y.2d at 985, 429...