$3,000,000 for 11 Months of Pre-Death Pain and Suffering Affirmed in Medical Malpractice Case

By John Hochfelder

Theresa Capwell was 33 years old and in good health when she started experiencing abdominal pain. She was diagnosed with pancreatitis (an inflammation of the pancreas) and admitted to Westchester Medical Center on September 18, 2000.
Within five days of her hospital admission, Theresa suffered acute respiratory distress and she was placed on a ventilator. On October 4th, she suffered a heart attack and brain damage from lack of oxygen (anoxic brain damage).

As a result of the anoxia, she was in a persistent vegetative state from which she never recovered and Theresa Capwell died 11 months later on September 10, 2001.
A medical malpractice lawsuit followed – Capwell v. Guneratne (Supreme Court, Westchester County, Index #14832/02) – in which plaintiffs (Theresa’s husband and their three young daughters) claimed that her brain damage and death were caused by mistreatment of her pancreatitis and mismanagement of her respiratory condition.
Essentially, plaintiffs argued that the doctors at Westchester Medical Center failed to recognize that Theresa’s problems stemmed from pancreatitis. Instead, they erroneously suspected and treated her for ovarian cancer. That misdiagnosis led to a cascade of ever worsening medical problems: Theresa got sicker and sicker and ultimately suffered from life threatening respiratory distress that led to a ventilator placement, a tension pneumothorax, a heart attack and anoxic brain damage. Then, death.
The jury returned a verdict in plaintiff’s favor on December 12, 2008 finding that the hospital’s malpractice had caused Theresa’s injuries and they awarded $7,000,000 in damages as follows:

• pre-death pain and suffering – $3,000,000 (11 months)
• loss of consortium – $4,000,000 (11 months)

The defense made a post-trial motion challenging the verdict amounts as excessive. The plaintiffs countered that they were reasonable and asserted their own challenge for the jury’s failure to award any wrongful death damages (i.e., economic losses sustained by the family members due to Theresa’s death, such as the value of her household services and parental guidance). In a post-trial decision, the judge rejected the defense claim that the pain and suffering award was excessive but agreed that the loss of consortium award was excessive and should be reduced – to $1,000,000.
Also, the trial judge agreed with plaintiffs that there should be a new trial on the issue of wrongful death damages – that is, whether, in addition to causing Ms. Capwell’s pre-death injuries, the malpractice also caused her death. If so, her family may be entitled to substantial additional economic damages, most significantly loss of parental guidance for the 7, 9 and 11 year old girls.
The defendant appealed. This week, in Capwell v. Muslim (the name of the case after some defendants were dismissed) (2d Dept. 2011), the appellate court affirmed the trial judge’s decision.
Plaintiffs argued, successfully, that $3,000,000 is a reasonable sum for pain and suffering in this case because, as a result of the brain damage until her death 11 months later, Theresa Capwell was:

• confined to her bed
• lived out her days cared for by others in every aspect of her existence
• could not communicate with the outside world beyond facial expressions, hand squeezing, eye movements and following simple commands (like moving her feet)

The affirmance of a $3,000,000 pre-death pain and suffering for a period of 11 months is quite significant. Generally, pain and suffering awards in brain damage cases that are sustained in excess of $1,000,000 involve much longer periods of time, such as:

• Reed v. City of New York (1st Dept. 2003) – $5,000,000 ($2,500,000 past – 6 years, $2,500,000 future – 30 years); 43 year old; brain damage with progressive tissue loss in lobes
• Paek v. City of New York (1st Dept. 2006) – $4,300,000 ($1,300,000 past – 6 years, $3,000,000 future – 40 years); 36 year old; traumatic brain injury with severe cognitive dysfunction
• Weldon v. Beal (2d Dept. 2000) – $5,000,000 ($2,000,000 past – 12 years, $3,000,000 future – 15 years); 26 year old; anoxic brain damage
• Evans v. St. Mary’s Hospital (2d Dept. 2003) – $1,800,000 ($800,000 past – 13 years, $1,000,000 future – 31 years); 28 year old; anoxic brain damage

Plaintiffs argued that while Theresa’s period of suffering was much less than those in most cases involving multi-million dollar pain and suffering awards for brain damage, the distinctive factor in this case is that the 11 month period represented the remainder of plaintiff’s life. Thus, they cited Cepeda v. New York City Health and Hospitals Corp. (1st Dept. 2003) in which $750,000 was held reasonable for an infant who died 12 days after suffering severe brain damage at birth due to medical malpractice. In that case, the court found that the fact that decedent experienced pain and suffering for most of her life was a factor in assessing the pain and suffering award.
Interestingly, neither party discussed the relevance of a recent case – Schaffer v. Batheja (2d Dept. 2010). In that case, the court approved a pre-death pain and suffering award of $2,500,000 for a woman in a coma who was only sporadically aware of her condition (she’d lapsed into a coma due to medical malpractice) for the 4 1/2 years until she died.The distinction between these two cases appears to be that the court determined that Ms. Capwell’s level of awareness was much more significant than Mrs. Schaffer’s.
The $1,000,000 loss of consortium award was based upon the fact that Scott and Theresa Capwell had enjoyed an idyllic 11 year marriage described by him as "the perfect life." They raised three young girls (Theresa was the homemaker, Scott the bread winner), enjoyed a very intimate relationship and were in "bliss." After the malpractice, for 11 months, their entire relationship consisted of his visiting her in the hospital, touching her face and kissing her in an effort to relax her, playing her favorite television shows and watching her deteriorate and die. The testimony in this regard was quite poignant and the appellate judges declined to disturb the trial judge’s reduction of the jury award for loss of consortium from $4,000,000 to $1,000,000.
Inside Information:

• As to pain and suffering, the defense argued not only that $3,000,000 is excessive but also that Theresa was already suffering from numerous underlying health problems when she entered the hospital and that plaintiffs failed to prove she sustained new, different or exacerbated pain and suffering.
• Plaintiffs’ law firm, Kramer, Dillof,Livingston & Moore, is widely recognized as one of the top medical malpractice firms in the state.
• The loss of parental guidance claims belonging to Theresa Capwell’s three young daughters could add several million dollars more to the plaintiffs’ recovery in this case. As much as $1,500,000 has been held reasonable by an appellate court for loss of a young child’s parental guidance (Paccione v. Greenberg – 2d Dept. 1998). If the new jury in Capwell v. Muslim finds a causal connection between the malpractice and the death and determines to award parental guidance damages, the size of the awards in this case may break new ground.

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