McDougald v. Garber

• Decision Date: 21 February 1989
• Citation: 73 N.Y.2d 246,538 N.Y.S.2d 937,536 N.E.2d 372
• Parties: , 536 N.E.2d 372, 57 USLW 2519 Emma McDOUGALD et al., Respondents, v. Sara GARBER et al., Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 937

538 N.Y.S.2d 937

73 N.Y.2d 246, 536 N.E.2d 372, 57 USLW 2519

Emma McDOUGALD et al., Respondents, v. Sara GARBER et al., Appellants.

Court of Appeals of New York.

Feb. 21, 1989.

Charles L. Bach, Jr., Luke M. Pittoni, New York City, and Michael F. McGowan, for Sara Garber, appellant.

Steven J. Ahmuty, Jr., and Thomas R. Newman, New York City, for New York Infirmary, appellant.

Michael A. Ellenberg, New York City, for Sonia Armengol and others, appellants.

Thomas A. Moore, New York City, for respondents.

Peter L. Zimroth, Corp. Counsel (Ingeborg B. Garfield and Fay Leoussis, of counsel), New York City, for the City of New York, amicus curiae.

OPINION OF THE COURT

WACHTLER, Chief Judge.

This appeal raises fundamental questions about the nature and role of nonpecuniary damages in personal injury litigation. By nonpecuniary damages, we mean those damages awarded to compensate an injured person for the physical and emotional consequences of the injury, such as pain and suffering and the loss of the ability to engage in certain activities. Pecuniary damages, on the other hand, compensate the victim for the economic consequences of the injury, such as medical expenses, lost earnings and the cost of custodial care.

The specific questions raised here deal with assessment of nonpecuniary damages and are (1) whether some degree of cognitive awareness is a prerequisite to recovery for loss of enjoyment of life and (2) whether a jury should be instructed to consider and award damages for loss of enjoyment of life separately from damages for pain and suffering. We answer the first question in the affirmative and the second question in the negative.

I.

On September 7, 1978, plaintiff Emma McDougald, then 31 years old, underwent a Caesarean section and tubal ligation at New York Infirmary. Defendant Garber performed the surgery; defendants Armengol and Kulkarni provided anesthesia. During the surgery, Mrs. McDougald suffered oxygen deprivation which resulted in severe brain damage and left her in a permanent comatose condition. This action was brought by Mrs. McDougald and her husband, suing derivatively, alleging that the injuries were caused by the defendants' acts of malpractice.

A jury found all defendants liable and awarded Emma McDougald a total of $9,650,102 in damages, including $1,000,000 for conscious pain and suffering and a separate award of $3,500,000 for loss of the pleasures and pursuits of life. The balance of the damages awarded to her were for pecuniary damages--lost earnings and the cost of custodial and nursing care. Her husband was awarded $1,500,000 on his derivative claim for the loss of his wife's services. On defendants' posttrial motions, the Trial Judge reduced the total award to Emma McDougald to $4,796,728 by striking the entire award for future nursing care ($2,353,374) and by reducing the separate awards for conscious pain and suffering and loss of the pleasures and pursuits of life to a single award of $2,000,000 (McDougald v. Garber, 132 Misc.2d 457, 504 N.Y.S.2d 383). Her husband's award was left intact. On cross appeals, the Appellate Division affirmed (135 A.D.2d 80, 524 N.Y.S.2d 192) and later granted defendants leave to appeal to this court.

II.

We note at the outset that the defendants' liability for Emma McDougald's injuries is unchallenged here, except for a claim by Dr. Garber that liability against her was predicated on a theory not asserted in the complaint or bill of particulars. We agree with the Appellate Division, for the reasons stated by that court (see, 135 A.D.2d 80, 95-96, 524 N.Y.S.2d 192 supra ), that Dr. Garber's claim does not warrant a new trial on liability.

Also unchallenged are the awards in the amount of $770,978 for loss of earnings and $2,025,750 for future custodial care--that is, the pecuniary damage awards that survived defendants' posttrial motions.

What remains in dispute, primarily, is the award to Emma McDougald for nonpecuniary damages. At trial, defendants sought to show that Mrs. McDougald's injuries were so severe that she was incapable of either experiencing pain or appreciating her condition. Plaintiffs, on the other hand, introduced proof that Mrs. McDougald responded to certain stimuli to a sufficient extent to indicate that she was aware of her circumstances. Thus, the extent of Mrs. McDougald's cognitive abilities, if any, was sharply disputed.

The parties and the trial court agreed that Mrs. McDougald could not recover for pain and suffering unless she were conscious of the pain. Defendants maintained that such consciousness was also required to support an award for loss of enjoyment of life. The court, however, accepted plaintiffs' view that loss of enjoyment of life was compensable without regard to whether the plaintiff was aware of the loss. Accordingly, because the level of Mrs. McDougald's cognitive abilities was in dispute, the court instructed the jury to consider loss of enjoyment of life as an element of nonpecuniary damages separate from pain and suffering. The court's charge to the jury on these points was as follows:

"If you conclude that Emma McDougald is so neurologically impaired that she is totally incapable of experiencing any unpleasant or painful sensation, then, obviously, she cannot be awarded damages for conscious pain * * *.

"It is for you to determine the level of Emma McDougald's perception and awareness. Suffering relates primarily to the emotional reaction of the injured person to the injury. Thus, for an injured person to experience suffering, there, again, must be some level of awareness. If Emma McDougald is totally unaware of her condition or totally incapable of any emotional reaction, then you cannot award her damages for suffering. If, however, you conclude that there is some level of perception or that she is capable of an emotional response at some level, then damages for pain and suffering should be awarded * * *.

"Damages for the loss of the pleasures and pursuits of life, however, require no awareness of the loss on the part of the injured person. Quite obviously, Emma McDougald is unable to engage in any of the activities which constitute a normal life, the activities she engaged in prior to her injury * * * Loss of the enjoyment of life may, of course, accompany the physical sensation and emotional responses that we refer to as pain and suffering, and in most cases it does. It is possible, however, for an injured person to lose the enjoyment of life without experiencing any conscious pain and suffering. Damages for this item of injury relate not to what Emma McDougald is aware of, but rather to what she has lost. What her life was prior to her injury and what it has been since September 7, 1978 and what it will be for as long as she lives."

We conclude that the court erred, both in instructing the jury that Mrs. McDougald's awareness was irrelevant to their consideration of damages for loss of enjoyment of life and in directing the jury to consider that aspect of damages separately from pain and suffering.

III.

We begin with the familiar proposition that an award of damages to a person injured by the negligence of another is to compensate the victim, not to punish the wrongdoer (see, Sharapata v. Town of Islip, 56 N.Y.2d 332, 335, 452 N.Y.S.2d 347, 437 N.E.2d 1104; Prosser and Keeton, Torts, at 7 [5th ed.] ). The goal is to restore the injured party, to the extent possible, to the position that would have been occupied had the wrong not occurred (1 Minzer, Nates, Kimball, Axelrod & Goldstein, Damages in Tort Actions §§ 1.00, 1.02). To be sure, placing the burden of compensation on the negligent party also serves as a deterrent, but purely punitive damages--that is, those which have no compensatory purpose--are prohibited unless the harmful conduct is intentional, malicious, outrageous, or otherwise aggravated beyond mere negligence (see, Sharapata v. Town of Islip, supra, at 335, 452 N.Y.S.2d 347, 437 N.E.2d 1104; Prosser and Keeton, Torts, at 9-10 [5th ed.]; 1 Minzer, op. cit., § 1.03).

Damages for nonpecuniary losses are, of course, among those that can be awarded as compensation to the victim. This aspect of damages, however, stands on less certain ground than does an award for pecuniary damages. An economic loss can be compensated in kind by an economic gain; but recovery for noneconomic losses such as pain and suffering and loss of enjoyme of life rests on "the legal fiction that money damages can compensate for a victim's injury" (Howard v. Lecher, 42 N.Y.2d 109, 111, 397 N.Y.S.2d 363, 366 N.E.2d 64). We accept this fiction, knowing that although money will neither ease the pain nor restore the victim's abilities, this device is as close as the law can come in its effort to right the wrong. We have no hope of evaluating what has been lost, but a monetary award may provide a measure of solace for the condition created (see, Skelton v. Collins, 115 CLR 94, 130, 39 ALJR 480, 495 [Austl H C] ).

Our willingness to indulge this fiction comes to an end, however, when it ceases to serve the compensatory goals of tort recovery. When that limit is met, further indulgence can only result in assessing damages that are punitive. The question posed by this case, then, is whether an award of damages for loss of enjoyment of life to a person whose injuries preclude any awareness of the loss serves a compensatory purpose. We conclude that it does not.

Simply put, an award of money damages in such circumstances has no meaning or utility to the injured person. An award for the loss of enjoyment of life "cannot provide [such a victim] with any consolation or ease any burden resting on him * * * He cannot spend it upon necessities or pleasures. He cannot experience the pleasure of giving it away" (Flanne v. United States, 4th Cir., 718 F.2d 108, 111, cert. denied 467 U.S. 1226, 104 S.Ct. 2679, 81 L.Ed.2d 874).

We recognize that, as the trial court noted, requiring some cognitive...