Medical Malpractice: Discovery and Trial

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1 Chapter 5 Damages 5:1 Damages for Personal Injuries Caused by Medical Malpractice 5:1.1 Definition and Rationale 5:1.2 Elements of Damages for Personal Injuries [A] Costs of Medical Care [B] Lost Income [C] Conscious Pain and Suffering [C][1] The Rule [C][2] The Problem [C][3] Tactics [C][4] Exploiting Recent Developments [D] Emotional Injury [D][1] Preliminary Distinctions [D][2] The Situations [E] Other Possible Elements of Damages 5:1.3 Brief Note on Estimating Damages 5:2 Derogation from the Collateral Source Rule 5:2.1 Creation of the Collateral Source Rule [A] Definition and Rationale [B] Origin of the Rule [C] Counter-Revolution 5:2.2 Collateral Source Rule in New York [A] Traditional Rule [A][1] Plaintiff s Initial Burden [A][2] Application of Rule [A][3] Legitimate Deductions [B] Legislative Changes [B][1] Development of the New Rule [B][2] Final Form of the New Rule? [C] Residue of the Traditional Rule 5:3 Damages for Wrongful Death 5:3.1 Beneficiaries of an Action for Wrongful Death [A] Parents [B] Spouse (Med. Malpractice, Rel. #9, 10/10) 5 1

2 Medical Malpractice: Discovery and Trial [C] Children [D] Siblings 5:3.2 Pecuniary Injuries in an Action for Wrongful Death 5:3.3 Factors Affecting Size of Pecuniary Injuries By this point in our exposition, we have defined medical malpractice, examined the four elements of the cause of action, explored the ways in which a physician can commit medical malpractice, and noted that either a physician or a hospital may be vicariously liable for the negligence of someone else. An action for medical malpractice is an action in tort for the negligent infliction of personal injury or wrongful death in the course of medical treatment by someone who professed to have a special knowledge and skill in the practice of medicine. Thus, the trial will revolve around the proposition of fact, resolved, that the defendant injured the plaintiff by means of medical malpractice. In establishing the truth of this proposition, the plaintiff must establish the four elements, i.e., a duty implying a standard of care, a breach of that duty, an injury, and proximate cause. Once the plaintiff has established these elements of his cause of action, he must translate his injuries into monetary damages that the jury can award to him. Attorneys refer to the potential parts of the verdict as the elements of damages, but these attorneys are using the word elements in a different sense from the elements of a cause of action. The plaintiff must establish all four elements of his cause of action in order to impose liability on the defendant, but the plaintiff may recover an award for those elements of damages he can establish even if he cannot establish others. Thus, the elements of damages are cumulative, not consecutive. Although the trial of an action for medical malpractice is not bifurcated, coherence demands that the attorney present his evidence on liability before he presents his evidence on damages. Of course, some witnesses may testify regarding both subjects. Having reached this subject of damages, the author has divided this chapter, like Gaul, into three parts. Since our central definition mentions both personal injury and wrongful death, we will separate these two torts for which the measures of damages are different. The damages for personal injury compensate the victim of the malpractice for his medical expenses, lost income, and conscious pain and suffering. If this patient has died, the survival statute preserves the 5 2

3 Damages 5:1 action for the benefit of his estate. 1 The rules governing damages in an action for personal injury are common law rules so they are simple, straightforward, and well understood. By contrast, our exposition of the damages available in an action for wrongful death is longer because the rules are statutory, complicated, and not so well understood. If the defendant s malpractice killed the patient, then the decedent s personal representative brings the cause of action for wrongful death for the benefit of the decedent s potential distributees, not the estate, and the measure of damages is the distributees pecuniary losses, for example, loss of support or loss of inheritance. 2 This chapter also includes a third section, to wit: the derogation from the collateral source rule. 3 The author has elected to explain this derogation in a separate section because this rule is new, statutory, and complicated: integrating the discussion of the derogation with the explanation of the traditional damages for personal injury would confuse both subjects. The attorney must understand the damages for personal injury and be able to prove them to the jury s satisfaction: the jury does not make the deductions for collateral sources; the jury applies the measures of damages and issues its verdict, then the court receives evidence regarding collateral sources and makes any appropriate deductions from the verdict. In addition, the author has placed the section on collateral sources between those on personal injury and wrongful death because, although the derogation applies to both actions, the statute applies principally to the former; for example, the court does not deduct the proceeds of a life insurance policy from the verdict in an action for wrongful death. 4 Consequently, the author has divided this chapter into three sections, to wit: the damages for personal injuries caused by medical malpractice, the derogation from the collateral source rule, and the damages for wrongful death caused by medical malpractice. 5:1 Damages for Personal Injuries Caused by Medical Malpractice We will review the scheme of the elements of damages before examining each element more closely. 1. N.Y. EST. POWERS & TRUSTS LAW (b): No cause of action for injury to person or property is lost because of the death of the person in whose favor the cause of action existed. For any injury an action may be brought or continued by the personal representative of the decedent N.Y. EST. POWERS & TRUSTS LAW 5-4.1, 5-4.3, and N.Y. C.P.L.R N.Y. C.P.L.R. 4545(c). (Med. Malpractice, Rel. #9, 10/10) 5 3

4 5:1.1 Medical Malpractice: Discovery and Trial 5:1.1 Definition and Rationale The damages in an action for personal injuries caused by medical malpractice are compensatory; that is, these damages provide a reasonable sum of money, as assessed by the jury and reviewed by the court, to equal the injury suffered by the plaintiff and nothing more. 5 In other words, the law intends to restore the plaintiff to his position before the injury, but monetary damages are the only means the law has of doing so. 6 (Since the damages are compensation for injuries, they are not income and, therefore, not taxable. 7 ) If the verdict is to be commensurate with the injuries inflicted, 8 then the verdict must provide an award for every injury which the defendant s malpractice directly and naturally caused. 9 Thus, before it calculates its final sum, the jury must have considered a distinct award for each potential element of damages. 10 Part of delineating these potential elements is recognizing that some compensatory damages may be prospective; that is, they may be recompense for expenses the plaintiff has not yet incurred, for example, future medical care, or for injuries he has not yet suffered, for example, future conscious pain and suffering. 11 The common law created the elements of compensatory damages, past and present, and the three principal ones are the cost of medical care including custodial care 12 and equipment, 13 lost earn- 5. The author constructed this sentence from elements provided by BLACK S LAW DICTIONARY 466, 467 (4th rev d ed., St. Paul: West 1968). 6. Romeo v. N.Y. City Trans. Auth., 73 Misc. 2d 124, 126 (Sup. Ct. 1973) U.S.C. 104(a)(2). See also DANIEL W. H INDERT, JOSEPH JULNES DEH- NER, & PATRICK J. HINDERT, STRUCTURED SETTLEMENTS AND PERIODIC PAYMENT JUDGMENTS (N.Y.: Law Journal Press 1986) (2000), at 2-3: One well-established exclusion from taxable income is the receipt of funds by a personal injury victim that compensate the victim for the injury. Once funds are received, however, tax will apply to income earned on the funds. 8. Howard v. Lecher, 42 N.Y.2d 109, 111 (1977). 9. Steitz v. Gifford, 280 N.Y. 15, 20 (1939); Howard, 42 N.Y.2d at 109, 111; N.Y. State Thruway Auth. v. Livetta Constr. Corp., 62 A.D.2d 530, 532 (3d Dep t 1978); see also Stone v. Sterling Drug, Inc., 111 A.D.2d 1017, 1021 (3d Dep t 1985); Bottone v. N.Y. Tel. Co., 110 A.D.2d 922, 924 (3d Dep t 1985); RESTATEMENT (SECOND) OF TORTS Kavanaugh v. Nussbaum, 71 N.Y.2d 535, 544 (1988); Ledogar v. Giordano, 122 A.D.2d 834, (2d Dep t 1986); Nussbaum v. Gibstein, 73 N.Y.2d 912 (1989). 11. BLACK S LAW DICTIONARY, supra note 5, at Kavanaugh, 71 N.Y.2d at 535; Behar v. Hosp. of Albert Einstein Coll. of Med., 95 A.D.2d 728 (1st Dep t 1983); Beardsley v. Wyoming County Cmty. Hosp., 79 A.D.2d 1110 (4th Dep t 1981). 13. Behar, 95 A.D.2d at

5 Damages 5:1.1 ings, 14 and conscious pain and suffering 15 including the loss of the enjoyment of life. 16 The other possible elements of damages are emotional distress, 17 loss of consortium, 18 and punitive damages. 19 The legislature codified the common law in a statute when the legislature prescribed itemized verdicts in actions for medical malpractice. Hence, section 4111(d) of the Civil Practice Law and Rules reads in part, In a medical, dental or podiatric malpractice action the court shall instruct the jury that if the jury finds a verdict awarding damages it shall in its verdict specify the applicable elements of special and general damages upon which the award is based and the amount assigned to each element, including but not limited to medical expenses, dental expenses, podiatric expenses, loss of earnings, impairment of earning ability, and pain and suffering...., each element shall be further itemized into amounts intended to compensate for damages which have been incurred prior to the verdict and amounts intended to compensate for damages to be incurred in the future. The legislature subsequently enacted similar provisions for itemized verdicts in actions against public employers, actions for wrongful death, and other actions for personal injury. 20 The words not limited to mean that the other elements of damages recognized by the common law are still available when appropriate. Moreover, as a matter of trial tactics, the plaintiff s attorney should further subdivide the elements of damages as far as necessary to present his client s case to the jury. For example, the attor- 14. Ledogar, 122 A.D.2d at 834, 837; Lundy v. J.I. Hass Co., 100 A.D.2d 768, 769 (1st Dep t 1984). 15. Kavanaugh, 71 N.Y.2d at 535, 544; McDougald v. Garber, 73 N.Y.2d 246 (1989); Behar v. Ordover, 105 A.D.2d 766, (2d Dep t 1984); Thornton v. Montefiore Hosp., 120 Misc. 2d 1003 (Sup. Ct. 1983), aff d as modified, 99 A.D.2d 1024 (1st Dep t 1984); Behar v. Hosp. of Albert Einstein Coll. of Med., 95 A.D.2d 728 (1st Dep t 1983). 16. Nussbaum v. Gibstein, 73 N.Y.2d 912 (1989); Rufino v. United States, 829 F.2d 354, (2d Cir. 1987). 17. Martinez v. Long Island Jewish Hillside Med. Ctr., 70 N.Y.2d 697 (1987); Ferrara v. Galluchio, 5 N.Y.2d 16 (1958). See also Gallo v. Supermarkets Gen. Corp., 112 A.D.2d 345, (2d Dep t 1985); Juiditta v. Bethlehem Steel Corp., 75 A.D.2d 126, 138 (4th Dep t 1980); Thall v. State, 69 Misc. 2d 382, 387 (Ct. Cl. 1972), aff d, 42 A.D.2d 622 (3d Dep t 1973). 18. Waiters v. N.Y. City Health & Hosps. Corp., 80 A.D.2d 880 (2d Dep t 1981); Richardson v. Lutheran Hosp., 70 A.D.2d 933 (2d Dep t 1979). 19. Sultan v. Kings Highway Hosp. Ctr., Inc., N.Y.L.J., Feb. 23, 1989 (Sup. Ct. 1989). 20. These sections are, respectively, N.Y. C.P.L.R. 4111(e) and (f). (Med. Malpractice, Rel. #9, 10/10) 5 5

6 5:1.1 Medical Malpractice: Discovery and Trial ney should itemize for the jury the different operations, therapies, and specialists the plaintiff will need. This procedure ensures that the jurors will not overlook any item and helps the attorney to justify each expenditure in the minds of the jurors. In fact, the attorney may ask the court to include these further subdivisions on the verdict sheet. Even if the court refuses, the attorney should still make these subdivisions part of his exposition when presenting the evidence and part of his argument when delivering his summation. As one experienced trial attorney, Brian J. Shoot, has written: Inasmuch as the 1976, 1985 and 1986 reform packages were generally intended to reduce the size of jury awards, one might safely conclude that such was a purpose of the provisions in question. However, it is not at all clear that itemized verdicts actually have that effect, and many experienced plaintiffs counsel actually preferred itemized verdicts even before they were mandated by statute. 21 *** The clever plaintiff s attorney will, presumably, tailor his... summation and damages proof to the itemized breakdown of damages dictated by the court. Of course, even if the court declines to submit interrogatories with the specificity which plaintiff s counsel would prefer, such would not prevent plaintiff s counsel from breaking the awards down into the components thereof for the purposes of summation. Indeed, the McDougald court assumed that the plaintiff s bar would do so vis-à-vis loss of enjoyment of life. 22 In summary, the damages for personal injuries caused by medical malpractice are compensatory and, as such, may be retrospective or prospective. These damages typically include the cost of medical care, lost income, and conscious pain and suffering, but the damages also may include awards for emotional distress, loss of consortium, and punitive damages. In New York, a statute requires the jury to deliver an itemized verdict, but the attorney may ask the court to make the itemization more detailed than the statute requires. In any case, the attorney should subdivide the elements of damages as far as he needs to do so in order to make his presentation of the evidence clear and his arguments persuasive. 21. Brian J. Shoot, The New Laws: Procedural Considerations and Substantive Impact, HOW TO TRY DAMAGES: PROVING AND DEFENDING DAMAGES (Albany: NYSBA 1990), at Id. at

7 Damages 5:1.2 Now we will examine these elements of damages in greater detail. 5:1.2 Elements of Damages for Personal Injuries In an action for personal injuries caused by medical malpractice, there are typically three elements of damages, each of which is divided into past damages and future damages. The three elements are the costs of medical care, lost earnings, and conscious pain and suffering. [A] Costs of Medical Care The defendant whose negligence has injured the plaintiff is liable for the cost of the medical care necessary to heal the plaintiff and to alleviate his suffering. This medical care may extend into the future, that is, beyond the date of the trial, but, whether the claim is for past expenses or future ones, the plaintiff must establish the necessity of the treatment, the fact of the cost, and the reasonableness thereof. In the context of damages, the notion of necessary medical care is a broad one and includes more than the services of the treating physician himself. Medical Services include all services rendered... because of illness, upon [the] advice of his physician, which were reasonably necessary for his care and comfort The ancillary services may include therapy, special equipment, and attendants. The plaintiff s attorney establishes the plaintiff s need for the care by presenting expert medical testimony from a treating physician, another medical expert, or even the defendant. In some cases, a nurse, speech pathologist, or therapist might testify. To prove the cost of past medical expenses, the attorney may also introduce certified copies of hospital bills as presumptive evidence for section 4518(b) of the Civil Practice Law and Rules provides in part, A hospital bill is admissible in evidence under this rule and is prima facie evidence of the facts contained, provided it bears a certification by the head of the hospital or by a responsible employee in the controller s or accounting office that the bill is correct, that each of the items was necessarily supplied and that the amount charged is reasonable. 23. BLACK S LAW DICTIONARY, supra note 5, at Kavanaugh v. Nussbaum, 71 N.Y.2d 535 (1988); Behar v. Hosp. of Albert Einstein Coll. of Med., 95 A.D.2d 728 (1st Dep t 1983); Beardsley v. Wyoming County Cmty. Hosp., 79 A.D.2d 1110 (4th Dep t 1981). (Med. Malpractice, Rel. #9, 10/10) 5 7

8 5:1.2 Medical Malpractice: Discovery and Trial Other medical bills are admissible pursuant to the general rule governing business records 24 but do not create a presumption. (Example 5-1 is a sample of a certified hospital bill.) The defendant, of course, may dispute both the necessity of the care and the reasonableness of the cost, and he may present expert testimony to support his position. Each party should determine the charges approved by governmental and private insurance schemes as guidelines for comparisons. These schedules are not dispositive because any physician can claim that his services are more valuable, but a plaintiff whose physician charged the approved fee has a strong position from which to argue. When the plaintiff claims an award for future medical services, the methods of proof are similar but not as definitive. The plaintiff s attorney will use a medical expert to testify to the need for the services and an expert economist to testify to the cost of the services in the relevant future years. 25 However, the author has three caveats for the plaintiff s attorney. First, do not ask the economist to discount the future costs of medical care to their present value. The periodic payment of future damages in installments 26 means that the jury no longer reduces these damages to a lump sum. Thus, both the economist and the jury should calculate the plaintiff s awards for the tenth year, for example, in the cost that will be current then. As Brian Shoot observed, Apart from the above [i.e., the itemized verdict], the major impact of CPLR 4111(d) and (f) derives from the direction that the awards not be reduced to present value. In consequence thereof, the plaintiff s economist will not have to discount his... projection of the future loss to present value. Nor can the defense counsel cross-examine the economist with respect to returns provided by Treasury bills, tax-exempt bonds and the like. Nor, since the awards cannot be discounted, should any proof relating thereto be received. Of course, this is no more than fair. Given that plaintiff will, for the most part, not be receiving lump sum payment of the future damages, it would be 24. N.Y. C.P.L.R. 4518(a). 25. In his first two drafts of this sentence, the author wrote, testify to the increased cost of the services in the relevant future years. The cost of medical services does increase of course. In fact, medical costs often rise faster than the general rate of inflation. However, the defendant s attorney should be alert for a service which may decline in cost or not rise as quickly as other services as the service becomes widely available or competition arises. Remember how the cost of eyeglasses fell with competition. 26. N.Y. C.P.L.R. Articles 50-A and 50-B. 5 8

9 Damages 5:1.2 unfair to suggest that the awards should be discounted so as to offset a lump sum payment which will not take place. 27 There is confusion regarding reducing future damages to their present value because the court will make or review such calculations for two other purposes, neither involving the jury. The first purpose is to determine the contingent fee due to the plaintiff s attorney. 28 This attorney receives his entire fee in a lump sum so the court must calculate the share of the attorney s fee represented by the future damages by reducing those damages to their present value and then multiplying that sum by the appropriate percentage. The court must then recalculate the installments payable to the plaintiff. 29 The second purpose is to determine the present value of the future payments and, therefore, the purchase price of the annuity contract that the defendant s insurance company must purchase pursuant to the judgment and from another insurance company. 30 This second insurance company will make the monthly payments to the plaintiff. 31 The second caveat for the plaintiff s attorney is that some disagreements on future damages will be disguised disagreements on policy, that is, justice, not economics. For example, the family of a permanently disabled plaintiff may ask the jury to award him the cost of home care although that care will be more expensive than placing the plaintiff in an appropriate institution. The plaintiff s attorney must be prepared to support this emotional appeal with expert medical testimony that home care would be better for the patient both medically and in easing his conscious pain and suffering. The third caveat is that the plaintiff s attorney must itemize the medical costs for each future year. He must not treat the years as slices of meatloaf, one being much like another. The three reasons for this careful itemizing apply to both past and future medical expenses but are especially important for the latter. One, itemizing reminds the jury of each expense so the jury does not overlook any 27. Shoot, supra note 21, at N.Y. C.P.L.R. 5031(c). 29. For a thorough explanation of this process, see the famous case of Ursini v. Sussman, 541 N.Y.S.2d 916 (N.Y. Sup. Ct. 1989). 30. N.Y. C.P.L.R. 5031(e) and This complicated arrangement is a result of the federal tax code. The author recommends that the reader consult DANIEL W. H INDERT, JOSEPH JULNES DEHNER & PATRICK J. HINDERT, STRUCTURED SETTLEMENTS AND PERIODIC PAYMENT JUDGMENTS (N.Y.: Law Journal Press 1986) (2000). (Med. Malpractice, Rel. #9, 10/10) 5 9

10 5:1.2 Medical Malpractice: Discovery and Trial expenses. Two, itemizing allows the jury to award to the plaintiff the sum appropriate for each year. For example, the plaintiff may need expensive corrective surgery in the two or three years immediately following the trial so the verdict should award the plaintiff greater amounts payable in those years. If the category of medical care is not subdivided, the result would be that the bulk of the compensation for the imminent surgery [i.e., all of the compensation therefore except for the portion consumed by the $250,000 lump sum payment dictated by C.P.L.R. 3141(b)] would be paid out, along with the other items of medical care, over a 40-year span. 32 Three, itemizing will help the court to avoid misapplying a collateral source to reduce the verdict. For example, if the plaintiff has major medical insurance that will cover the cost of the corrective surgery but not subsequent home care, the court should not set off any excess in the surgical coverage against the cost of the home care. Finally, the attorneys for both sides must remember that the maximum term of years for which the jury can award medical expenses is the plaintiff s life expectancy after the injury and at the date of the trial. 33 Thus, the standard mortality tables may not be relevant. Both sides will need more specialized tables and expert testimony. Moreover, the state of the plaintiff s health, his physician s prognosis, and the other circumstances may be more persuasive than the statistics. In summary, the defendant who has negligently injured the plaintiff is liable for the cost of the medical care necessary to heal the plaintiff and to alleviate his suffering. The courts construe the term medical care broadly. Nevertheless, the plaintiff must establish that the particular medical care he received was necessary and that the cost was reasonable. He does so by introducing evidence from medical experts, economic experts, and certified bills. The methods for establishing the plaintiff s future medical expenses are similar except that there are no bills. The defendant, of course, may dispute everything, but he must be prepared to call his own experts. In any case, the plaintiff s attorney should not ask his economic expert to reduce the plaintiff s damages to their present value; the attorney should be prepared to present evidence to support the more expensive alternative of home care, and the attorney should itemize the medical expenses for each year. Finally, the maximum term for which the jury can award future medical costs is the plaintiff s life expectancy after the injury and at the trial. 32. Shoot, supra note 21, at FRANK M. MCCLELLAN, MEDICAL MALPRACTICE: LAW, TACTICS, AND ETH- ICS (Phila.: Temple Univ. Press, 1994), at

11 [B] Lost Income Damages 5:1.2 The second element of damages is the plaintiff s lost income. We will discuss the terminology then gradually make our understanding of this element more precise in five steps. Lost income is the most popular term for this element of damages although attorneys also use the terms lost earnings and loss of earning capacity. Attorneys most often apply this last term to future damages. Even section 4111(d) of the Civil Practice Law and Rules, previously quoted, refers to both loss of earnings and impairment of earning ability, apparently to distinguish past damages from future and damages. Remember that this distinction of past from future refers to damages that are past or future on the date of the trial. All the damages were prospective from the moment of the malpractice. Thus, there seems to be no good reason for this multiplicity of terms. Having dealt with the terminology, we will delineate the measure of damages for lost income. First, as we noted at the beginning of this chapter, the plaintiff is entitled only to those damages which will equal the severity of his injuries. 34 Hence, the plaintiff is entitled to lost income only to the extent that the defendant s malpractice prevented the plaintiff from working. The plaintiff cannot work while he is in the hospital or paralyzed, but every plaintiff is not entitled to retire permanently. The law requires the plaintiff to do what is reasonable: if the plaintiff worked full-time but can now only work part-time, his damages are the difference between the two incomes. Second, the plaintiff s future damages are the loss of his earning capacity although the plaintiff might subsequently have left the labor market temporarily. For example, in Feldman v. Allegheny Airlines, a wrongful death case, the court determined the deceased wife s likely pay grade as a civil servant in the future, noted her income at that grade, accepted evidence from the husband that the wife would have stayed home for eight years to raise the children the couple had planned to have, and awarded the wife s personal representative lost earnings for those eight years at the wife s anticipated salary. 35 In other words, the defendant was liable for depriving the 34. Steitz v. Gifford, 280 N.Y. 15, 20 (1939); Howard v. Lecher, 42 N.Y.2d 109, 111 (1977); N.Y. State Thruway Auth. v. Livetta Constr. Corp., 62 A.D.2d 530, 532 (3d Dep t 1978); Stone v. Sterling Drug, Inc., 111 A.D.2d 1017, 1021 (3d Dep t 1985); Bottone v. N.Y. Tel. Co., 110 A.D.2d 922, 924 (3d Dep t 1985); Romeo v. N.Y. City Trans. Auth., 73 Misc. 2d 124, 126 (Sup. Ct. 1973). 35. Feldman v. Allegheny Airlines, Inc., 382 F. Supp (D. Conn. 1974), aff d in part, rev d in part, 524 F. 2d 384 (2d Cir. 1975), on remand, 452 F. Supp. 151 (D. Conn. 1976). (Med. Malpractice, Rel. #9, 10/10) 5 11

12 5:1.2 Medical Malpractice: Discovery and Trial wife of the ability to earn income during those eight years even if she might have withdrawn from the labor market. Third, the plaintiff s attorney may present evidence both of his client s income when the defendant s malpractice stopped the plaintiff from working and of the increased income which the plaintiff would have earned during his disability. Proving the lost earnings of an employee at the date of the malpractice is a simple matter. The plaintiff may rely on his own testimony, his tax records, and his employer s payroll records. (Example 5-2 is an authorization for the plaintiff s employment records.) Proving the increased earning capacity of an employee who is a civil servant or a member of a union covered by a collective bargaining agreement is also relatively simple. 36 However, the plaintiff s attorney may be able to establish his client s increased earning capacity in other situations. An economist may testify to general trends in the economy and to more specific trends in the plaintiff s occupation. (Example 5-3 is the first page of the economist s report to the attorney.) Moreover, the attorney may present evidence of the plaintiff s superior personal qualifications or performance to establish that his income would have risen faster than the trend. For example, the summation reproduced in chapter 16 refers to the testimony of the plaintiff s former boss, who testified to the plaintiff s ambition and competence and to her likely promotions. Fourth, the plaintiff s lost income will consist of more than mere wages even for an employee. The plaintiff s attorney should claim and prove any ancillary sources, for example, the employer s contribution to Social Security, a pension plan, and an insurance plan. Social Security and pensions have themselves become important forms of income, and their loss may constitute damages if the plaintiff actually lost the benefit of the plans as a result of the malpractice. 37 If the plaintiff had a part-time source of income, for example, if he sold merchandise at a flea market, painted pictures of people s pets, or refereed volleyball games, and he can no longer do so, then the plaintiff should claim this lost income also. Finally, fifth, the maximum term of years for which the jury can award lost income is the plaintiff s working life expectancy before the injury. In other words, neither his original life expectancy nor his life expectancy after the injury is the measure; rather, the mea- 36. Grunenthal v. Long Island R.R. Co., 393 U.S. 156, 160 (1968). 37. Saint Cyr Louissant v. Hudson Waterways Corp., 111 Misc. 2d 1922 (N.Y. Sup. Ct. 1981); Gilliard v. N.Y. City Health & Hosps. Corp., 77 A.D.2d 532 (1st Dep t 1980); Escobar v. Seatrain Lines, Inc., 566 N.Y.S.2d 813 (Sup. Ct. 1990); Hudson v. M.A.B.S.T.O.A., 568 N.Y.S.2d 503 (Sup. Ct. 1990). 5 12

13 Damages 5:1.2 sure is the number of years the plaintiff would have worked if he had not been injured. 38 Work expectancy tables from the U.S. Department of Labor and from insurance companies are admissible as relevant to establish this period, 39 but the plaintiff s attorney may present evidence of his client s special characteristics to prove that the plaintiff would have worked longer. A complication is that the plaintiff might have relinquished one source of income before relinquishing another; for example, she might have retired from teaching but continued to paint pictures of pets. The defendant might, of course, claim that the plaintiff s income would have declined during his working life, perhaps because his occupation was disappearing. For example, the defendant might claim that fax machines and were putting bicycle messengers out of business. However, making this appeal to the jury might be a psychological error. In summary, the plaintiff is entitled to damages for lost income to the precise extent that the defendant s malpractice kept the plaintiff from earning income. The plaintiff s earning capacity and his work-life expectancy provide the theoretical limits to his damages. If the plaintiff s disability is either not total or not permanent, then the plaintiff eventually will earn some income and reduce his damages. Nevertheless, for the period in which he is unable to work, the plaintiff may recover his total lost income even if he might have left the labor force temporarily. The plaintiff s attorney must adduce evidence of the stream of income which the defendant s malpractice 38. Frank M. McClellan has summarized the distinctions well in MEDICAL MALPRACTICE: LAW, TACTICS, AND ETHICS (Phila.: Temple Univ. Press, 1994), p. 126: These determinations must be calculated on a different basis for income losses, medical expenses, and pain and suffering because the appropriate time period for assessing these losses is likely to differ. The key concepts involved are life expectancy and work-life expectancy. Life expectancy governs claims of future medical expenses and pain and suffering. Work-life expectancy governs assessments of losses in earning capacity. The outside limit of the term for which a person can make a claim for medical expenses or pain and suffering is that person s life expectancy as it exists after the accident and as of the time of trial. The plaintiff s life expectancy may be longer or shorter than her work-life expectancy, which is determined by the plaintiff s condition before the accident. If the injury has not shortened the plaintiff s life expectancy, her position, despite her injury, does not differ from that of most people, who expect to live beyond their years of active work, provided their health and lifestyle permit. 39. Example 5-4 consists of sample pages from the tables of working life published by the U.S. Department of Labor. (Med. Malpractice, Rel. #9, 10/10) 5 13

14 5:1.2 Medical Malpractice: Discovery and Trial interrupted, and the attorney may adduce evidence that the plaintiff s income would have increased during the relevant period. Moreover, the plaintiff s lost income may include his employer s contributions to various plans, the plaintiff s lost benefits from these plans, or the income from the plaintiff s second job. Finally, the maximum term for which the jury may award the plaintiff lost income is the plaintiff s work-life expectancy before his injury. [C] Conscious Pain and Suffering The third element of damages for personal injuries caused by medical malpractice is the award for conscious pain and suffering. We will examine the rule itself, the problem of calculation, various tactics for coping with this problem, and exploiting recent developments in proving conscious pain and suffering. [C][1] The Rule The rule is that the plaintiff is entitled to awards recompensing him for his past and his future conscious pain and suffering 40 caused by the defendant s medical malpractice. To understand this rule, the attorney must comprehend that these four words, conscious pain and suffering, are not redundant: they combine three concepts and, therefore, make the rule more precise. In the context of damages, pain is the physical discomfort the plaintiff experienced, a disagreeable feeling, usually in its intenser degrees, resulting from, or accompanying, deranged or otherwise abnormal action of the physical powers, 41 while suffering is the psychological result of the pain, the feeling or sensation that arises from the action of something painful.... The customary use of the word indicates some experience of conscious pain. 42 This cause-and-effect relationship is reflected in the requirement that the suffering must follow the injury: thus, the personal representative should not recover damages for conscious pain and suffering if the decedent died instantly. 43 This requirement also distinguishes conscious pain and suffering from the element of emotional distress. The adjective conscious is 40. Kavanaugh v. Nussbaum, 71 N.Y.2d 535, 544 (1988); McDougald v. Garber, 73 N.Y.2d 246 (1989); Behar v. Ordover, 150 A.D.2d 766, (2d Dep t 1984); Thornton v. Montefiore Hosp., 120 Misc. 2d 1003 (N.Y. Trial Term 1983), aff d as modified, 99 A.D.2d 1024 (1st Dep t 1984); Behar v. Hosp. of Albert Einstein Coll. of Med., 95 A.D.2d 728 (1st Dep t 1983). 41. BLACK S LAW DICTIONARY, supra note 5, at Id. at Anderson v. Rowe, 73 A.D.2d 1030 (4th Dep t 1980); Estate of William Geenty (Sur. Ct. Bronx Co. 1992), N.Y.L.J., Jan. 27, 1992, at

15 Damages 5:1.2 not redundant either: the plaintiff must at least be able to respond to stimuli rather than be in a vegetative state. 44 In New York, the plaintiff s loss of the enjoyment of life is compensable but not separately: this loss is part of the award for conscious pain and suffering. 45 The defendant s negligence must have deprived the plaintiff of one of his normal pursuits, and the plaintiff must be aware of the loss on some level. For example, in the opening statement and the summation reprinted in chapters 12 and 16, respectively, the author argued successfully that the plaintiff, despite being in an irreversible coma, had retained some awareness of her losses. Finally, the maximum term for which the jury can award future damages for conscious pain and suffering is the plaintiff s life expectancy after the injury and on the date of the trial. Obviously, no one can experience pain after he dies. However, the reader should be aware that, by statute, New York requires the judgment to disburse the award for future pain and suffering over a maximum term of ten years even if the jury awarded damages for a longer period. 46 [C][2] The Problem The problem in awarding the plaintiff damages for his conscious pain and suffering is that no calculation of this award is possible. The law intends to provide each successful plaintiff with a verdict commensurate with his injuries and, therefore, to include in the verdict an award for each distinct and cognizable injury, but the jury can award only monetary damages. You can add up the plaintiff s medical bills and make a reasonable extrapolation of his future medical expenses. You can multiply the plaintiff s wages by the length of his disability to calculate his lost income, and you can make a reasonable estimate of the likely increases in his earning capacity. However, you cannot calculate the plaintiff s pain as money. Faced with this difficulty, plaintiffs attorneys tried urging the jurors to assign a value to a unit of time, such as a day, and then to multiply that value by the number of days the plaintiff was or would be in pain. However, the courts in New York have forbidden attorneys to use this approach. 47 A variation on the unit of time is the golden rule argument, similarly impermissible, in which the attorney asks 44. Nelson v. State of New York, 105 Misc. 2d 107, (1980). 45. McDougald v. Garber, 73 N.Y.2d 246 (1988); Nussbaum v. Gibstein, 73 N.Y.2d 912 (1989). 46. N.Y. C.P.L.R. 5031(e). 47. De Cicco v. Methodist Hosp., 74 A.D.2d 593 (2d Dep t 1980). (Med. Malpractice, Rel. #9, 10/10) 5 15

16 5:1.2 Medical Malpractice: Discovery and Trial the jurors how much they would pay to be relieved of pain, for example, pay a dentist for a shot of novocaine, and to award the plaintiff a multiple of that amount. This golden rule argument is simply an example of the per diem argument in which the attorney has provided a putative warrant for the rate of remuneration. In fairness to the courts, attorneys must admit that neither the per diem approach nor the golden rule has a justifiable starting point. As Chief Justice Traynor of California wrote in a dissent: It is one thing to urge that in view of all of the evidence of pain and suffering including its total duration, some specific sum or range of sums is reasonable. It is quite another to urge the jury to use a formula such as a mill or a penny per second, or penny or nickel or dime a minute, or $10 or $20 or $100 per day. None of these formulas appears unreasonable on its face, for there is no basis in human experience for testing their reasonableness. For a year of pain and suffering, however, they yield damages ranging from $3,650 to $315,360, sums that in light of all the evidence in particular cases might appear to be grossly inadequate or grossly excessive. It is therefore unrealistic to seek an appropriate award for pain and suffering by the use of any socalled per diem formula. Only after counsel has determined how much damages for pain and suffering he is going to ask for can he select a per diem ratio to support his request. He could arrive at any amount by adjusting either the period of time to be taken as a measure or the amount surmised for pain and suffering for that period. 48 Unfortunately, excluding such calculations leaves the jurors without guidance. [T]he jury is presented with no effective advocacy or reasoning as to how to render a monetary verdict that takes this component of the plaintiff s damages into account. 49 [C][3] Tactics So, what is the solution to this problem? The honest answer is that there is no solution, no solution which will provide a calculation of conscious pain and suffering analogous to the calculations of the plaintiff s medical expenses and his lost income. However, the plaintiff s attorney does have a series of tactics he can use to cope with the problem, that is, to make his task for arguing for general damages a manageable one. The author will discuss nine such tactics. 48. Beagle v. Vasold, 417 P.2d 673, 682 (Cal. 1966) (dissent by Traynor, C.J.). 49. FRANK M. MCCLELLAN, MEDICAL MALPRACTICE: LAW, TACTICS, AND ETH- ICS (Phila.: Temple Univ. Press 1994), at

17 Damages 5:1.2 First, research the parameters of your case to determine the maximum verdict which the courts will uphold for the injuries the plaintiff is asserting. If you are fortunate, you may find an opinion in which the court reviewed the awards in previous judgments in similar cases. In addition to the standard tools of legal research, you may consult two newsletters, the New York State Jury Verdict Review and Analysis and the Judicial Review of Damages. (Examples 5-5 and 5-6 consist of sample pages from these two publications.) Several reference books collect and organize this information, for example, the annual J.V.R. State Verdict Survey Second, do a good job of proving the plaintiff s economic damages. As Frank A. Sloan and his colleagues discovered in their study of medical malpractice suits in Florida, The most important variables explaining variations in compensation in cases in which some payment was make are economic loss,..., and whether or not the claimant s lawyer was a specialist. 50 The jurors are likely to believe that expensive medical care and a lengthy absence from work also entailed considerable pain and suffering including the loss of the enjoyment of life. Third, utilize empathetic experts. Large verdicts follow proof of large economic losses only in cases where the juries are willing to believe the evidence. 51 The jurors can refuse to do so. The best expert has impressive credentials, knows his subject, is articulate, and is personable. Since most experts are not perfect, you may begin by retaining a competent one and then work with him to improve his manner in the courtroom. 52 Fourth, prepare the plaintiff to make a sympathetic and attractive impression. If the plaintiff is living and able to attend the trial, her appearance and behavior are crucial. 53 The jurors will be evaluating the plaintiff constantly, not just during her testimony. If the jurors find the plaintiff sympathetic, they will award her a greater recovery for pain and suffering. If the plaintiff is unable to attend the trial, then the jurors will treat someone else, for example, her husband, as the plaintiff s alter ego and evaluate him in her place. Thus, the attorney must work with the plaintiff or her substitute to improve See Legal Bibliography, part IV(F). 50. FRANK A. SLOAN, ET AL., SUING FOR MEDICAL MALPRACTICE (Chi.: Univ. of Chicago Press 1993), at FRANK M. MCCLELLAN, MEDICAL MALPRACTICE: LAW, TACTICS, AND ETH- ICS (Phila.: Temple Univ. Press 1994), at Dr. Frank Colbourn of Colbourn Communications Consultants reports that his firm is more often hired to coach expert witnesses than lay ones. 53. MCCLELLAN, supra note 51, at 109. (Med. Malpractice, Rel. #9, 10/10) 5 17

18 5:1.2 Medical Malpractice: Discovery and Trial her presence as a party and a witness. Avoid unpleasant surprises. Give the plaintiff explicit instructions on how to dress and how to act and direct her to wear to a practice session the clothes she will wear at the trial. (Some people have no sense of occasion.) Fifth, employ custom-made visual aids. Some visual aids are helpful, but mass-produced visual aids are too complicated for the jurors to comprehend, and using many visual aids causes all of them to lose their effect. Nevertheless, one common form of visual aid is the day-in-the-life film showing how difficult the plaintiff s life has become as a result of the medical malpractice. In addition, the services of a certified medical illustrator are especially valuable. The medical illustrator can help the jurors to appreciate the plaintiff s pain by drawing simple but accurate illustrations of the injury, the deformity of the organs, the progress of the illness, and the successive surgical operations. 54 He may also enlarge selected pages from the hospital record and highlight them to show the increasing use of pain killers. (Example 5-7 is a summary of such illustrations entitled Illustrating Pain and Suffering by Martin E. Finch, a certified medical illustrator.) The plaintiff s attorney has a special problem if his client has recovered from the malpractice and is cosmetically whole by the time of the trial, years later. As Martin Finch observed at a seminar in Minneapolis: When he or she [the plaintiff] appears in the courtroom in street clothing, his or her limp may now be gone, their scars may be healed, and/or covered by clothing. To a jury of their peers, they look perfectly healthy and normal. Their attorney s task is to prove that they suffered damages from the automobile accident, and convince the jury that they suffered pain, and loss of their ability to function at home and at work, as they did before. The jury sees a person who looks as healthy as they are, who they believe is out to cheat the public, feigning pain and suffering, someone looking to get rich quick. 55 Naturally, the attorney wants his client to recover, but the jury may take the attitude that nothing is so bad once it is over: count 54. Caveat! Do not draw these illustrations yourself. You will be required to testify to their accuracy, and then you will be required to withdraw as the attorney. 55. Martin E. Finch, Illustrating Pain and Suffering, Address at HCMC Biomedical Ethics Noon Seminar, Hennepin County Med. Ctr., Minneapolis, Minn. (Dec. 11, 1996), Transcript at 1 2. Professor Finch has made a specialty of illustrating pain and suffering. 5 18

19 Damages 5:1.2 your blessings. (Getting caught in the rain is never so bad once you dry off, and being in the navy was not so bad once you were discharged.) In this situation, the work of the medical illustrator is especially important because these illustrations can give the jurors specific, concrete notions of what the plaintiff endured. In addition, video cameras are now so common that the attorney might be able to compile a day-in-the-life film retroactively from existing tapes. 56 Sixth, stay abreast of the medical developments in the assessment and management of pain. Example 5-8 is an offering of a continuing education course in assessing and managing pain, and the notice refers to scientific attempts to measure pain and to the clinical guidelines for treating it. Meanwhile, pursuant to a directive from the Joint Commission on Hospital Accreditation Organizations, hospitals are experimenting with a pain management flow sheet and with a supposedly uniform scale on a pain rating chart to measure a patient s pain from zero to ten, 57 and hospitals are already employing a pain pump, an intravenous device that allows the patient to give himself an extra dose of pain killer. Presumably, the greater the cumulative dose, the more the patient was suffering. Recently, scientific research in the United Kingdom has indicated that even comatose patients feel pain and, therefore, should be given anesthesia like other patients. In other words, scientists are trying to create objective measurements of pain although they may really be measuring suffering. We already have indirect measures of the pain, for example, the type of pain killer used, the method of administration, and the size and frequency of the dose. When preparing an action for trial, consult an expert on the management of pain, and search the literature. 58 Seventh, marshal the medical evidence to prove the plaintiff s conscious pain and suffering as a medical fact. To do so, the attorney should carefully examine Example 5-13, the checklist of evidence of pain and suffering. The Medical Records Review Service compiled the original version of this checklist for the author s partner, Thomas Principe, in preparation for a lecture at St. John s University Law School This checklist summarizes the important 56. The attorney may need to put several witnesses on the stand to testify to the accuracy of the different parts of the film. 57. Tell Me Where It Hurts: Uniform Standards Help with Assessment, Treatment of Pain, Community HealthLine (Huntington Hosp. newsletter, Huntington, N.Y.), June 2000, at The Medical Records Review Service, Inc. would perform such a search and would produce a compilation of citations to the authoritative literature, such as the one illustrated as Example 2-5 on another subject The attorney should treat the items on this checklist as special topoi for the invention of arguments regarding pain. (Med. Malpractice, Rel. #9, 10/10) 5 19

20 5:1.2 Medical Malpractice: Discovery and Trial variables. For example, the use of painkilling drugs is an indication of the patient s pain, but the power of the drug (and, therefore, the severity of the pain) varies not only with the identity of the drug but also with the dosage, frequency, duration, and route of administration. Moreover, the attorney must appreciate that the successful use of a strong painkilling drug does not deprive the plaintiff of a significant recovery for conscious pain and suffering. The appellate division, fourth department, nonchalantly confirmed this view in Quigley v. Sikora, in which the court ordered a new trial on the damages only and wrote: Plaintiff suffered fractures of a toe, cuboid and one or two metatarsals. He was unable to place any weight on his ankle for five months, missed work for 11 months, underwent unsuccessful surgery, developed an ulcer on his calf and developed a full body rash in reaction to the Betadine used to treat the ulcer. Plaintiff was prescribed pain medication and received an injection of lidocaine. The jury awarded plaintiff $30,000 in lost earnings and $7,000 for past pain and suffering, but failed to award anything for future damages or for the derivative cause of action.... The damages awarded by the jury must be set aside. We conclude that the jury s award of $7,000 for past pain and suffering deviates materially from what would be reasonable compensation In other words, the administration of pain medication confirmed the plaintiff s pain. In addition to medication, the general categories on the checklist include alternative therapies, the objective physical signs, the subjective reported symptoms, the use of analgesic (pain) pumps, progress notes, diagnostic studies, prosthetic devices, the duration of the hospital stay, and the long-term sequelae. As a further aid to marshaling the evidence of conscious pain and suffering, Lorna Morelli-Loftin, the owner of the Medical Records Review Service, has formulated a checklist that is the inverse of the evidence of pain and suffering checklist. The latter alerts the attorney to the possible evidence, but the nurse s checklist of pain and suffering evidence (Example 5-14) alerts the attorney to which evi Quigley v. Sikora, 269 A.D.2d 812, 813 (4th Dep t 2000) (emphasis added). 5 20

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