She just had hip surgery, and was still anesthetized. But when a safety strap was removed, Catherine O’Donnell somehow slipped off the table and slammed her head on to the floor fracturing her skull. A week later, the 86-year-old woman was dead despite a second operation that removed part of her skull to relieve pressure from the bleeding. (Boston Globe). Her family has now brought a wrongful death suit in Massachusetts.
What is interesting to note, from the legal end, is that if such an instance happened here in New York the family would likely have a hard time finding an attorney to handle it. This is exactly the type of avoidable accident that doctors and hospitals mostly enjoy immunity for. Here’s why:
A lawsuit such as this has just a few essential elements of damages. Conscious pain and suffering and pecuniary loss (such as wages) are usually the major ones. Assuming the 86 year old wasn’t working, however, her survivors likely has little pecuniary loss unless there are some types of pensions or similar revenue. And as to conscious pain and suffering, there is zero if she was never aware of what happened to her. In New York, there must be some level of awareness of the pain and disability. There may be a claim for loss of parental guidance, but the children would all be adults and the claim minimized due to that (relative to such a claim for an infant). There may also be a spousal claim if her husband survived her (not noted in the story.)
That leaves just grief for the surviving family. But unlike 42 other states, grief for surviving families is not compensable in New York in accordance with a law passed in 1847. ( See: The September 11th Lawsuits And The Problem Of Compensable Grief in NY) So the family is stuck, basically screaming at the wind for what happened, with no outlet for their grief.
People often make the assumption that lawsuits are “all about the money.” Sometimes yes, but often not. With the loss of a family member, a family is often looking for answers and accountability. The courtroom, on an emotional level, often substitutes for the vigilantism that might occur based on anger.
While I had written just last week about my own handling of a woman with a ruptured brain aneurysm that fell off an angiogram table (see: Straying from Your Field of Practice), that woman had survived and was in massive distress. But wrongful death claims for the elderly (or even more sadly, for a child) often enjoy a de facto immunity here in New York.
(hat tip: Kevin MD)