Citation. McDougald v. Garber, 73 N.Y.2d 246 (N.Y. Feb. 21, 1989)
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Brief Fact Summary.
The Appellate Division of the Supreme Court in the First Judicial Department (New York) affirmed a trial court’s order awarding plaintiff damages against defendants, a doctor and an anesthesiologist, in a malpractice action alleging surgical error that lead to plaintiff’s brain damage and coma. The physician and the anesthesiologist appealed.
Synopsis of Rule of Law.
An award of damages to a person injured by the negligence of another is to compensate the victim, not to punish the wrongdoer. The goal is to restore the injured party, to the extent possible, to the position that would have been occupied had the wrong not occurred.
Plaintiff, 31 year-old Emma McDougald, entered a New York hospital to undergo a Caesarian section and tubal ligation. In the course of the procedure she suffered oxygen deprivation, resulting in severe brain damage and leaving her in a permanent coma. McDougald and her husband brought an action claiming medical malpractice. A jury awarded multiple damages, including damages for “loss of pleasures and pursuits of life.” On appeal, the court modified the award and granted a new trial on nonpecuniary damages on the basis that the trial court had erred in its jury instructions.
Does an award of damages for loss of enjoyment to a person whose injuries preclude any awareness of the loss serve a compensatory purpose?
* Should the loss of enjoyment of life be considered a category of damages separate from pain and suffering?
No and No. The court modified the damages awards, with costs to defendants, by granting a new trial on the issue of nonpecuniary damages of Plaintiff Emma McDougald and, as modified, affirmed. With regard to the specific issues:
* Such an award merely serves a punitive purpose and the court declined to reverse the lower court’s ruling.
* The estimation of nonpecuniary damages cannot be measured precisely, and to attempt to do so by engaging in separate analytical measure would only confuse and distort the damages assessment process.
In dissent, Judge Titone takes issue with the majority’s approach, stating “The majority’s holding represents a compromise position that neither comports with the fundamental principles of tort compensation nor furnishes a satisfactory, logically consistent framework for compensating nonpecuniary loss.” Specifically, Titone finds an award for loss of enjoyment of life appropriate to a nonpecuniary award analysis, stating: “I conclude that loss of enjoyment of life is an objective damage item, conceptually distinct from conscious pain and suffering, I can find no fault with the trial court’s instruction authorizing separate awards and permitting an award for ‘loss of enjoyment of life’ even in the absence of any awareness of that loss on the part of the injured plaintiff.”
The consideration of pain and suffering in most cases is broad in scope, in that it will include the psychological distress that accompanies severe physical injuries, and the contemplation of a victim’s future inabilities. Pain and suffering, and other forms of mental distress have no obvious monetary equivalent.
In McDougald, the court must first address the parameters of awarding damages: “The goal is to restore the injured party, to the extent possible, to the position that would have been occupied had the wrong not occurred. To be sure, placing the burden of compensation on the negligent party also serves as a deterrent, but purely punitive damages – that is, those which have no compensatory purpose – are prohibited unless the harmful conduct is intentional, malicious, outrageous, or otherwise aggravated beyond mere negligence.”
The court must then evaluate the enigma, presented by the particular facts here, of assessing damages for “loss of enjoyment of life” for one who is comatose. The court explained, “Cognitive awareness is a prerequisite to recovery for loss of enjoyment of life. The fact finder is not required to sort out varying degrees of cognition and determine at what level a particular deprivation can be fully appreciated. The charge to the fact finder that there must be some level of awareness is an appropriate standard for all aspects of nonpecuniary loss.” Thus, its conclusion that such an award serves no compensatory purpose.
With regard to the second issue, the court stated flatly, “A trial court errs when it instructs a jury that a victim’s awareness is 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.” The court then ruminates on the nebulous character of attempting to calculate less concrete forms of loss. “This aspect of damages, however, stands on less certain ground than does an award for pecuniary damages. An economic loss can be compensated in kind by an economic gain; but recovery for noneconomic losses such as pain and suffering and loss of enjoyment of life rests on the legal fiction that money damages can compensate for a victim’s injury.” Money, the court notes, is an incomplete substitute for pain and suffering but the closest courts can come to provide solace for loss. There are, however, limits to such compensation, thus, “The court’s willingness to indulge this fiction
comes to an end, however, when it ceases to serve the compensatory goals of tort recovery. When that limit is met, further indulgence can only result in assessing damages that are punitive.”