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Dr. BK and Dr. JM …cont

The decedent underwent three open heart surgeries within a period of less than twenty-four hours. Evidence was offered that the defendant’s malpractice necessitated the second and third surgeries. Hospital records record a pain level of 10 following the second operation. Even when sedated Mr. AT was restless and agitated and required wrist restraints. During his ensuing five-month hospitalization, Mr. AT experienced multiple blood transfusions, six episodes of pneumonia, a partial lung collapse, requiring a bronchoscopy, intestinal bleeding, urinary tract infections, decubitus ulcers, sepsis and hearing loss. He underwent surgery for his bed sores. Antibiotics administered to Mr. AT for infection rendered him comatose at times. As a result of the use of respiratory tubes, he was unable to speak at times and communicated with his wife in writing. In several of his notes he expressed that he was in pain and discomfort, and in fear of dying.

The amount of damages to be awarded to the plaintiff for conscious pain and suffering and loss of services is a question for the jury, and its determination will not be disturbed unless the award deviates materially from what would be reasonable compensation. Here, the jury’s award for conscious pain and suffering deviates materially from what is reasonable injury compensation to the extent that it exceeds $1.2 million

Upon this record, the jury’s award for loss of services deviates materially from what is reasonable compensation to the extent that it exceeds $200,000.00.

Finally, Dr. BK argues that the jury’s award of $780,000.00 in wrongful death pecuniary loss was not proven with reasonable certainty. Specifically, he maintains, there was no evidence offered of loss of earnings, loss of guidance, loss of inheritance or loss of household services.
Here, plaintiff offered evidence as to loss of services and loss of parental guidance, and the jury rendered an award only as to loss of services.

As previously noted, the decedent, a 68-year-old retiree suffered from polycythemia vera, congestive heart failure, kidney stones and high blood pressure prior to his admission to Downstate Hospital. Mrs. AT testified that her husband, who was from the Carribean, did all of the baking and all of the West Indian cooking for the family. Each Saturday he would make the West Indian bakes, and on Thanksgivings he prepared the meal for 70 to 80 guests. He cooked when he came home from work, which was after midnight. Family birthdays, therefore, were celebrated at 2 a.m. The decedent’s age, health, life expectancy, relationship to his wife and family and disposition to serve them were all proper considerations for the jury. Thus, while the plaintiff presented sufficient evidence to establish her claim, the evidence offered by the plaintiff does not support the jury’s injury award for pecuniary damages to the extent that it exceeds $75,001.00.

Accordingly, it is ordered that the motion is granted to the extent that a new trial as to damages is granted for the decedent’s conscious pain and suffering, plaintiff’s past loss of services and society, and wrongful death pecuniary damages for loss of services, unless within 30 days after service upon the plaintiff of a copy of this decision and order, with notice of entry, the plaintiff shall serve and file in the office of the Clerk of the Supreme Court, Kings County, a written stipulation consenting to reduce the verdict as to damages for the decedent’s conscious pain and suffering from the principal sum of $6 million to the principal sum of $1.2 million, to reduce the verdict as to damages for the plaintiffs past loss of services and society from the principal sum of $13 million to the principal sum of $200,000.00, and to reduce the verdict as to damages for wrongful death pecuniary damages for loss of services from the principal sum of $780,000.00, to the principal sum of $75,000.00; and it is further ordered , that the motion is otherwise denied.

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