Gilliard v. New York City Health and Hospitals Corp.
| Decision Date | 17 July 1980 |
| Citation | 77 A.D.2d 532,430 N.Y.S.2d 308 |
| Parties | Louise GILLIARD, as Administratrix of the Estate of Robert Gilliard, Deceased, Plaintiff-Respondent, v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, Defendant-Appellant. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, Third-Party Plaintiff-Appellant, v. Dr. Leo C. MAITLAND, Third-Party Defendant-Respondent, and Dr. Ricardo Yap et al., Third-Party Defendants. |
| Court | New York Supreme Court — Appellate Division |
W. R. Dillof, New York City, for plaintiff-respondent.
B. Burstein, New York City, for defendant-appellant and third-party plaintiff-appellant.
Before KUPFERMAN, J. P., and FEIN, LUPIANO, BLOOM and CARRO, JJ.
Judgment of the Supreme Court, New York County, entered August 13, 1979, reversed on the law and the facts and the matter remanded for a new trial on the issue of damages only without costs unless, within 30 days after service of a copy of the order to be entered herein, plaintiff shall execute and file in the Office of the Clerk of the Supreme Court, New York County, a stipulation agreeing to reduce the verdict herein to $100,000. In the event that such stipulation is filed, the judgment, as modified by the stipulation, is affirmed, without costs.
The only issue in dispute is the damage award of $200,000 to plaintiff in this malpractice action. On March 4, 1974 plaintiff's intestate was admitted to Sydenham Hospital complaining of discomfort in his right groin area. His condition was diagnosed as a right inguinal hernia. Two days later he was operated upon. Because of improper practice in the administration of a general anaesthesia, he suffered cardiac arrest and went into a coma. On March 11, 1974 he died.
The deceased was a bachelor, 58 years old at the time of his death. His sole surviving distributees are a brother and sister. Although the deceased lived alone in a single room, he and his sister were close and he spent much time assisting her in her household chores and shopping for her, and he ate at her home almost every night.
By statute (EPTL 5-4.3) damages in wrongful death cases are limited to pecuniary injury suffered by the distributees of decedent's estate (Parilis v. Feinstein, 49 N.Y.2d 984, 429 N.Y.S.2d 165, 406 N.E.2d 1059 (April 29, 1980)). Here, such damages are susceptible of rough, but reasonably certain calculation.
For some eleven years prior to his admission to the hospital, deceased had been a maintenance employee of the New York City Department of Health. His annual earnings at the time were $9100. It was stipulated that had he continued in the same job until 1979, his annual earnings would have increased to $12,000. At his death he had a statistical work life of 8.7 years and a life expectancy of 16.6 years. Thus, his earnings for the balance of his work life would have approximated $90,000. To give the plaintiff the benefit of every doubt we will assume something which was neither stipulated nor proven that upon completion of his statistical work life, plaintiff's intestate would have received a pension, which, coupled with his social security, would equal fifty percent of his salary, or $6,000 per year for the eight years representing the balance of his life expectancy. Coupled with his earnings, funeral and burial expenses, this would aggregate to a total of approximately $140,000.
Out of this sum income and social security taxes would have to be paid, pension payments and other normal payroll deductions made, and living expenses, such as clothing, carfare, luncheon expenses and room rent, however minimal, incurred. Assuming that all that remained over and above necessary expenses reduced by the present value of the remaining lump sum, and providing an adequate hedge for inflation, was paid over to deceased's distributees, $100,000 would be an exceedingly generous estimate of the remaining balance. Hence, any damage award beyond that amount is plainly excessive.
The facts are fairly stated in the court's memorandum. Damages in a...
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