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Defendant in a medical malpractice action requests a reduction in the amount of damages awarded by the jury- Thomas v. Burack, 2009 NY Slip Op 32647(U) (N.Y. Sup. Ct. 10/21/2009)


In this medical malpractice case the defendants requested that the court reduce the amount of damages for pain and suffering, loss of services, as well as the amount of damages awarded for pecuniary loss.

In April of 2003 decedent Thomas was admitted to Downstate Hospital for single bypass heart surgery and a mitral valve repair. However, instead, defendant doctor Burack performed three open heart surgical procedures on the decedent. According to the plaintiff, because of negligent monitoring and treatment of the complications related to the procedures, in September Thomas died in Downstate Hospital without ever leaving the hospital. Plaintiff, as the administratrix of the decedent’s estate, filed a medical malpractice lawsuit against defendant Burack. After a trial, the jury found in favor of the plaintiff, awarding $6 million for the decedent’s conscious pain and suffering, $13 million for the loss of the decedent’s services and society prior to his death, and $780,000 in pecuniary damages on the wrongful death claim.

Defendant Burack appealed. In addition to arguing that he was not liable for the decedent’s death, he also appeals the amount of the monetary judgements. He asserts that the $6 million for pain and suffering and the $13 million for loss of services are not reasonable. He further asserts that the $780,000 award for wrongful death was not proven.

The record shows that as a result of the defendant’s negligence, the decedent did undergo a number of procedures and as a result, did experience a great deal of “pain and suffering.” For example, the hospital records show that the decedent’s pain level following the second surgery was a “10.” He was in so much pain that even when he was sedated he had to be restrained. Further, during the time he was in the hospital, because of the medical negligence he had to undergo blood transfusions, developed pneumonia multiple times, experienced a partially collapsed lung that required a bronchoscopy, had urinary tract infections, sepsis, hearing loss, ulcers, and intestinal bleeding. Because he had to use respiratory tubes, he was unable to speak and had to communicate with his wife by writing. In those written communications, he expressed that he was in pain and was afraid that he was going to die. The plaintiff submitted evidence of the close relationship she had with the decedent and how much time he spent with her as well as with the rest of their large family.

The court notes that the amount of damages is up to the jury. However, if the jury award is not reasonable, the court will modify it. After reviewing jury awards in cases that involved 5-8 months of hospitalization, multiple complications, and multiple procedures due to medical negligence, the court concluded that the $6 million award for pain and suffering was excessive. In the cases reviewed, the pain and suffering damages were in the range of $1.2-1.5 million. Similarly, as far as loss of services, after reviewing awards in other similar cases, the court also found the jury award to be excessive. The court concluded that it should have been no more than $200,000, instead of the $13 million awarded.

In addition, defendant Burack argued that the wrongful death jury award of $780,000 for pecuniary loss was not supported by the testimony in that there was no evidence of loss of earnings, loss of household services, or loss of inheritance. The court agreed with the plaintiff that she had presented evidence that there was a loss of household services in that the decedent did the majority of the cooking for the household and also cooked for large family gatherings. However, given the age of the decedent at the time of his death and his poor health before he entered the hospital, the court found that the amount of damages for pecuniary loss should be no more than $75,000.

Thus, the court agreed with the jury that there was evidence to support a finding of liability on the part of the defendant. However, it ordered a new trial as to damages unless the plaintiff agrees to a reduction of damages.

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