Wade Clark Mulcahy LLP

<p style="text-align: justify;">What must a jury determine to award pain and suffering damages when a nursing home does not provide the proper standard of care?</p>
<p style="text-align: justify;">In a recent New York Appellate Division decision by the First Department, a new trial was ordered for a claim seeking pain and suffering damages in which the Northern Manhattan Nursing Home Inc was accused of failing to properly monitor a patient’s blood sugar levels and failing to send the patient to the hospital in time after discovering he was unresponsive. The plaintiff (the patient’s widow) alleged that the nursing home’s negligence caused her husband to suffer brain damage, which ultimately led to his death.</p>
<p style="text-align: justify;">In 2019, a jury initially awarded the plaintiff $2.5 million dollars in damages for pain and suffering and $2 million in interest. However, the nursing home appealed arguing that the award for pain and suffering was in error.</p>
<p style="text-align: justify;">On appeal, the court found that the trial judge failed to have the jury determine whether the patient experienced some level of cognitive awareness after his injury, when determining the award. The court stated that:“ While a jury could reasonably have concluded based on the weight of the credible evidence that the decedent had the requisite cognitive awareness, this is not the only reasonable conclusion that the jury could have drawn. By omitting any discussion of 'consciousness' from its jury charge or the verdict sheet, the court essentially, and improperly, took this issue away from the jury."</p>
<p style="text-align: justify;">Because plaintiff filed her claim under New York Public Health Law 2801-d which allows private actions against residential health care facilities but does not allow a separate action for damages, the damages award must be based on some compensable and measurable injury.</p>
<p style="text-align: justify;">However, the court did note that verdict on liability against the nursing home was properly granted because plaintiff sufficiently established that the decedent was left unmonitored for hours after being unresponsive in the morning and was not transported to the hospital until later at night. Such actions departed from the nursing home’s standard of care and its own protocols.</p>
<p style="text-align: justify;">Nevertheless, the court vacated the $2.5 million award for pain and suffering for the jury’s failure to determine whether the patient suffered cognitive awareness so as to justify the award. The extent of this standard will likely be helpful in the influx of nursing home negligence cases resulting from the COVID-19 pandemic.</p>
<p style="text-align: justify;">Thanks to Gabriella Scarmato for her contribution to this post.  Please email <a href="mailto:gcoats@wcmlaw.com">Georgia Coats</a> with any questions.</p>
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