Nam Lee was 60 years old when he was admitted to the New York Hospital Queens in 2008 for an inflamed gallbladder. His surgery to remove the organ was set for the next day, but somehow never made it onto the surgical schedule. The day after that, his name was again left off the schedule. By then, he was too sick for surgery and died on his fourth day in the hospital.
How could such a preventable death have occurred? A lawyer for the hospital admitted the facility messed up, but that didn’t bring Lee back. Worse, he was the primary caregiver to an adult daughter who suffered from mental illness, who had no choice but to enter a state institution after her father’s death.
A jury took note of the family’s plight last week and found the hospital liable for $7.6 million, an unusually high amount in New York state, where wrongful death suits are only allowed to consider economic losses, and not take into account factors like emotional pain and suffering.
New York is one of only eight states in the nation that only looks at economic damages in wrongful death cases. “Wrongful death has a very strict construction,” says Andrew Barovick. “You have to be able to assign a monetary value that the family is going to do without because the person is no longer around. There’s no component to take into account the emotions of the family left behind.”
Lee was a 60-year-old salesman, so it’s unlikely his future earnings would be valued at the same level as, say, a hedge fund manager in his twenties. However, the fact that he was a caregiver to a disabled daughter could be considered—services provided to the family are eligible to be included in the award. “Something that can be assigned some value, even if it’s very token,” Barovick says. “Things like watching grandchildren, driving a grandmother around, helping kids with their homework.”
The fact that the suit also involves medical malpractice also helps account for the award’s value—the jury is allowed to consider the pain and suffering of Lee himself in the days before he died while he waited for a surgery that never came.
The ban on non-pecuniary damages in wrongful death cases prevents hospitals from being held accountable for their treatment, Barovick says. “There are countless cases in New York state where a hospital kills an elderly retired person, and the aggrieved family then has to hear from someone like me that’s it’s really not worth bringing a lawsuit because there’s really no damages,” he says. “A court will look at this in a very cold and clear way. So many wrongful deaths involve elderly people who, under the law, have lives that aren’t worth much.”
New York has not yet been hit with so-called tort reform laws that have been popping up around the country, limiting what plaintiffs can collect in malpractice cases, so some measure of punishment does exist for hospitals that kill their patients. However, hospitals have been under fire recently for under-reporting errors. “There’s a whole culture of not reporting errors within hospitals,” says Barovick. “Doctors not reporting other doctors, not only within hospitals but with state medical boards and disciplinary boards. Even when it’s done, it often takes a lot to actually see doctor discipline take place.”
“In general there’s very little accountability and the whole tort reform movement has poisoned people against plaintiffs and trial lawyers,” the lawyer says. “At least in New York, we can still bring most kinds of medical malpractice cases.”
Lee’s widow said she plans to use the money to bring her daughter home from the state institution, but doesn’t start spending yet—the hospital is appealing the award.
“The verdict was grossly excessive based on sympathy,” hospital attorney Shawn Kelly told the New York Daily News. “The jurors were overwhelmed with sympathy for the family and the daughter. That’s what happens on Christmas Eve.”
The verdict could still help hospital conditions by drawing attention to the Queens facility’s regrettable, and preventable, mistake. “Even if it does get reduced on appeal,” Barovick says, “it made the press and it’s going to increase awareness and will hopefully incentivize the hospitals to improve.”
By Aaron Kase
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