McDougald v. Garber
| Decision Date | 01 July 1986 |
| Parties | Emma McDOUGALD & Johnny McDougald, Plaintiffs, v. Dr. Sara GARBER, Dr. Sonia Armengol, Dr. Sumedha V. Kulkarni, Dr. Bharatee W. Sharma, Individually and d/b/a Empire Anesthesia Associates, a Partnership and New York Infirmary, Defendants. |
| Court | New York Supreme Court |
Thomas A. Moore, Kramer, Dillof, Tessel, Duffy & Moore, New York City for plaintiffs.
Nat Dembin, Bower & Gardner, New York City, for defendant New York infirmary.
Luke M. Pittoni, Heidell, Pittoni, Murphy & Bach, P.C., New York City for defendant Dr. Garber.
Wayne Roth, Morris & Duffy, New York City, for defendant Dr. Armengol.
Bruce Habian, Martin, Clearwater & Bell, New York City, for defendants Dr. Sharma, Dr. Kulkarni & Empire Anesthesia Associates.
In this action to recover damages for medical malpractice, the jury awarded plaintiff Emma McDougald $9,650,102 and plaintiff Johnny McDougald $1,500,000. All defendants move to set the verdict aside maintaining that the award to plaintiff Johnny McDougald and certain portions of the award to Emma McDougald are excessive. Defendants also argue that it was error for the court to charge the jury that Emma McDougald could recover damages for loss of the enjoyment of life, even if she was unaware of that loss and, further, to instruct the jury to make separate awards for conscious pain and suffering and the loss of enjoyment of life.
On September 7, 1978 Emma McDougald, then 31 years old, underwent an elective cesarean section performed by defendant Garber at defendant New York Infirmary. Anesthesia was provided by defendants Armengol and Kulkarni. As a result of a series of tragically shocking acts of medical negligence Mrs. McDougald sustained profound neurological injury and has remained confined to the hospital to date. It is not disputed that her injury is permanent and that she will require custodial care for the rest of her life. The impact of her injury on her ability to appreciate her condition and to experience pain was vigorously contested and will be discussed below.
The jury, finding all defendants liable, made itemized awards to Emma McDougald as follows:
loss of earnings--$770,978;
future custodial care--$2,025,750;
future nursing care--$2,353,375;
conscious pain and suffering--$1,000,000;
loss of enjoyment of life--$3,500,000
Only defendant Armengol maintains that the award for loss of earnings is excessive. That claim is based on the argument that such award should be reduced by the amount that plaintiff Emma McDougald would have spent for "personal consumption" had she not been permanently injured and require custodial care. The question of "personal consumption" was raised during the cross-examination of the economist called by plaintiffs. The jury was free to consider this factor in making its award for loss of earnings. The jury was not, however, compelled to make the reduction claimed by defendant Armengol.
Defendants Garber, Kulkarni and New York Infirmary attack the award for custodial care arguing that proof was offered that an annuity could be purchased from Metropolitan Life Insurance Company to provide such future custodial care for a premium of approximately $939,000. The proof offered on this point was, to say the least, inconclusive. The witnesses produced by defendants on this issue were not at all sure that such annuity could be purchased by the plaintiffs here. Although in an appropriate case, with appropriate proof, such annuity premium might be considered a proper measure of damages for future custodial care, the testimony offered by defendants on this issue, in this case, was insufficient.
The award for future nursing care, however, raises serious questions. The basis of that award was testimony by Dr. Lawrence Kaplan, a neurologist who examined Mrs. McDougald on two occasions, that her life expectancy might be extended by constant observation relating to aspiration or the development of bed sores. This testimony was given after that same doctor had testified that Mrs. McDougald required skilled nursing care and that the cost of such nursing care and custodial care at a private institution would be approximately $250 a day. Indeed, it was that testimony which was the basis for the economic projection of the cost of future custodial care discussed supra. The evidence offered by plaintiffs was insufficient to establish that round-the-clock nursing care was required and the jury award for this item of damage cannot be sustained.
As indicated above, there was substantial dispute with respect to the impact of Mrs. McDougald's neurological injuries on her ability to appreciate her circumstances and to experience pain. There was sufficient proof offered to support the jury's finding that, although Emma McDougald is severely neurologically impaired, there is, to some extent, a level of consciousness which permits her to experience pain and to appreciate her condition. Testimony by an expert witness, as well as by family members, indicated a degree of consciousness demonstrated by variable responsiveness to stimuli of sight, sound, light and touch. It was because of this dispute and because the jury could have concluded that Emma McDougald was so severely neurologically impaired that she could neither experience pain nor undergo conscious suffering that the court instructed the jury to consider conscious pain and suffering and loss of the normal pleasures and pursuits of life separately.
It is not disputed that Mrs. McDougald will never be able to engage in any of the activities and relationships which constitute a normal life, i.e., marriage, motherhood, family and friends, work and school and active participation in her church group. She has been deprived of the ability to derive any joy or satisfaction from the ordinary pursuits of daily life.
Most often, a devastating injury which prevents a person from living a normal life is accompanied by physical pain as well as a wide array of mental and emotional responses characterized under the broad rubric of suffering. Loss of the normal pursuits and pleasures of life as a factor to be considered in assessing damages...
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