Mcdougald v. Garber

73 N.Y.2d 246, 536 N.E.2d 372, 538 N.Y.S.2d 937 (1989)

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Nature of the Case

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Facts

McDougald (P) underwent a Caesarian section and tubal ligation at a New York infirmary on September 7, 1978. P was 31-years old. Garber (D) performed the surgery. Armengol (D1) and Kulkarni (D2) provided anesthesia. During the surgery, P suffered oxygen deprivation, resulting in severe brain damage, and this left her in a permanent comatose condition. P sued D, claiming that the injuries were caused by D's malpractice. The action was brought by P’s husband suing derivatively. A jury found all Ds liable and awarded P $9,650,102. This included $1 million for conscious pain and suffering and a separate award of $3.5 million for loss of the pleasures and pursuits of life. The balances of the damages were for pecuniary damages for lost earnings and the cost of custodial and nursing care. P’s husband got $1.5 million for the loss of his wife’s services. Ds made post-trial motions, and the trial judge reduced the award, striking the award for future nursing care and reducing the separate awards for conscious pain and suffering and loss of pleasures and pursuits of life. The total award was cut to $4,796,728 by striking the $2.353,374 award for future nursing care and by reducing the conscious pain and suffering and loss of pleasure awards to $2,000,000. On cross-appeals, the Appellate Division affirmed, and later granted Ds leave to appeal to the New York Supreme Court. On appeal, Ds claimed that the trial court erred both in instructing the jury that P's awareness was irrelevant to their consideration of damages for loss of enjoyment of life and in directing the jury to consider that aspect of damages separately from pain and suffering. At trial, D showed proof that P’s injuries were so severe that she was incapable of experiencing pain or of appreciating her condition. P’s showed evidence that she responded to certain stimuli to indicate that she was aware of her circumstances.