Plaintiff Awarded Damages for Past and Future Wages in Failure to Diagnose Pneumonia Case in Bronx County

The New York Supreme Court, Appellate Division, First Department affirmed a trial court order and jury verdict that awarded the plaintiff $340,000 in future economic losses and $40,000 in past economic losses after the hospital failed to timely treat the plaintiff for pneumonia.

On the morning of January 24, 2009, the plaintiff walked into Montefiore Medical Center’s emergency room with respiratory issues. However, he wasn’t admitted to the hospital until twelve hours later. He was tentatively diagnosed with pneumonia pending further tests. He passed away five hours later in the early morning hours. The administrator of his estate filed a medical malpractice lawsuit against the hospital. The case went to trial, and the jury awarded the plaintiff $40,000 for past lost wages, $680,000 for future lost wages, and $0 for pain and suffering.

The plaintiff and defendant moved to set aside the verdict. The plaintiff requested that the trial court strike testimony from an expert regarding the plaintiff’s cause of death and set aside the $0 pain and suffering award. The defendant requested that the trial court reduce the future lost wages to $340,000. The trial court denied the plaintiff’s requests but granted the defendant’s request.

The plaintiff tried to preclude testimony on the cause of death twice prior to the post-trial request. First, the plaintiff made the request via an in limine motion, which was not filed in a timely manner and therefore was denied. Second, the plaintiff repeated the request during trial, arguing that the doctor who would be testifying about the cause of death had not given a specific enough statement as required by CPLR 3101 (d).

CPLR 3101 (d) covers expert witness disclosure. The disclosure requires the name of the expert and a summary of the expert witness’s expected testimony, given in reasonable detail, in order to provide the opposing party with notice and ability to prep for trial. The statement in this case stated that the doctor would testify as to contributing factors to the plaintiff’s injuries.
While this statement did not specifically mention cause of death, the plaintiff did not object to the contents of the statement upon receipt. The plaintiff only objected to a lack of technical detail regarding the witness’s background. The plaintiff cannot now object to the specificity of the statement.

The plaintiff also argued that the doctor’s testimony about the heart attack came as a surprise at trial and should have been stricken. However, the plaintiff’s own expert testified that heart attack was an expected incident following respiratory issues. Thus there was nothing prejudicial about the doctor’s testimony, and the trial court was proper in refusing to strike it.

In addition, the testimony revealed that while the plaintiff was in the hospital bed, he had access to a call button for medical distress, which he did not use. He experienced no respiratory issues in the 40 minutes prior to his death. The plaintiff also had a history of cardiac issues that made him susceptible to heart attacks. Finally, the medical evidence showed he died suddenly. Thus the jury’s refusal to award pain and suffering was proper.

Finally, the plaintiff argued that the award should not have been reduced to $340,000. The plaintiff argued that the plaintiff made $300 every other week. However, there was no documentary evidence such as a paystub or check to corroborate this claim. In addition, though the plaintiff raised the issue at trial, the plaintiff was not appealing the trial ruling on that issue. Thus the First Department refused to consider this argument.

Medical malpractice cases require mountains of documentary evidence and expert witness testimony. Not only must the plaintiff prove medical malpractice by utilizing medical reports, doctor testimony, and exams, but the plaintiff must also prove damages with some specificity, especially lost wages damages.

If you or a loved one has suffered an injury due to suspected medical malpractice, your first call should be to Gallivan & Gallivan.

Rivera v. Montefiore Med. Ctr., 123 AD3d 424 (1st Dept., Dec. 4, 2014).

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