March 15th, 2011

Does Tort “Reform” Kill Patients?

Medical malpractice payments plunge after comprehensive patient safety improvements are made

Two questions today as New York ponders putting a $250K cap on medical malpractice awards among its “reform” measures:

Question 1: Has medical malpractice tort “reform” ever saved a life?

Answer: No. OK, that one was easy. So-called reforms merely strip rights from the injured, they do zippo to improve medical care.

Question 2: Does medical malpractice tort “reform” kill patients?

Answer: Yes. Now this question was in dispute up until recently, but no longer given a study that showed plunging medical malpractice payments and “sentinel events” after patient safety improvements were made (graph at right). But since everyone knows that histrionics aren’t my style, an explanation as to how I come to that conclusion that tort “reform” kills is in order.

Prior medical studies had tried to address the issue of whether “reform” had an effect on increasing injury/death due to less medical care. This was a tough subject because, on one side you had “reformers” claim there was defensive medicine for fear of malpractice suits and wasted money, and on the other you had patients pointing out that doctors actually billed for, and profited from, those tests. Also, those “unnecessary” tests often found things.

So I turned to the Congressional Budget Office, which does non-partisan cost analysis of government expenditures of various budgetary changes, and found a letter to Congressman Bruce Brayley that directly addressed the issue. (On page 3, entitled The Effects of Tort Reform on Patients’ Health). The CBO opinion was inconclusive, citing conflicting medical studies.

So why would I, faced with conflicting evidence on the issue of whether tort “reform” kills, now claim that it does?

Because the American Journal of Obstetrics and Gynecology published a study in February from Columbia Presbyterian Hosptial / Cornell Weill Medical Center that devastates the arguments of the so-called “reformers.” The study found that “instituting a comprehensive obstetric patient safety program decreased compensation payments and sentinel events resulting in immediate and significant savings.” What does that mean in dollars and cents? It means that their payments due to malpractice plunged, as the graph in the upper right hand corner shows. Quoting the report itself: “The 2009 compensation payment total constituted a 99.1% drop from the average 2003-2006 payments (from $27,591,610 to $ 250,000).”

It is abundantly clear then, from a pure dollars and cents point of view, that the medical profession has a spectacular opportunity to save money by slashing its malpractice payments. But to do that, they have to improve patient safety. You can see the raw savings in the chart on the left.

Of course, if that incentive is taken away by simply giving immunities and protections to the those that committed preventable errors, which is what tort “reform” is all about, the safety improvements would not take place. That means patients will continue to be injured and die from malpractice.

Conservatives should take note, as they have long held beliefs that market forces will win the day when a better mousetrap has been built. And Columbia Presbyterian / Cornell had now devised that better mousetrap by figuring out how to keep patients safer, resulting in lower costs. Focusing on “reform” that offers protection from lawsuits instead of protection from injury/death merely perpetuates the current problems in hospitals today. Such “reforms” take away the critical incentive to improve.

So this is the two-part conclusion:

Safety improvements = fewer malpractice payments and healthier patients.

Tort reform = more patient deaths.

Some money quotes from the report:

Our results show that implementing a comprehensive obstetric patient safety program not only decreases severe adverse outcomes but can also have an immediate impact on compensation payments.

Our experience supports the recommen-dation that: “. . . Malpractice loss is best avoided by reduction in adverse out-comes and the development of unambiguous practice guidelines.”

Good teamwork promotes professional integrity and is essential in delivering optimal patient care, and failure in communication and teamwork is often cited as a common cause of adverse events.

Making significant changes on a labor and delivery unit including such features as the implementation of a standardized oxytocin protocol, electronic charting, team training, and improving situational awareness through a central communi- cation system, should be considered by all obstetric services. As we have shown, these changes can increase pa-tient safety, decrease sentinel events, and, as a consequence, reduce compensation payments.

The myth that medical malpractice tort “reform” was needed has not just been deflated, but its been disproven and debunked, and it was done by one of the nation’s leading hospitals.

And why have I put the word “reform” in quotes all these years? Because the concept of reform is built about improving a system, not making it worse.

Addendum: My op-ed in The Journal News on Sunday, March 20th.

March 13th, 2011

New York Medical Malpractice Caps Getting Blasted (Round-Up)

I wrote last week of the folly of the $250K caps on medical malpractice pain and suffering awards that were recently proposed. That proposal is now getting blasted. Below are brief excerpts, and the reader is invited to click the links to get the whole nine yards instead of my little outtakes:

From today’s New York Times comes an editorial (Medicaid and the N.Y. Budget: A Bad Deal on Malpractice):

The proposed cap would apply to “non-economic damages.” Patients could still sue for the cost of their medical care, the value of wages lost and other economic costs. But their ability to recover damages for pain and suffering would be limited to $250,000 from every provider found guilty of malpractice. That hardly seems enough for patients who might face a greatly diminished quality of life because a negligent hospital or doctor left them blinded, paraplegic, brain damaged or gravely disfigured for life….

…The best solution is to greatly reduce the errors and bad outcomes that can lead to malpractice suits.

From Denis Hamill at the Daily News (Doctor with disabled son is no fan of governor’s plan to cap malpractice suit):

When Dr. Lora Ellenson, a pathologist at New York-Presbyterian Hospital Weill Cornell, looks at Gov. Cuomo’s proposed $250,000 cap on pain and suffering malpractice awards, she diagnoses the issue as a doctor – and as the mother of a son with cerebral palsy due to negligence….

…Had the Ellensons not won a malpractice award well above the proposed $250,000 she would have had to quit her job to stay home with her son every day…

…I ask Ellenson if she could have raised her son in a comfortable world on $250,000.

“Absolutely no way,” she says. “I continue to believe, as a practicing physician, that the way to curtail medical costs is not by further victimizing victims of malpractice, but to put in place mechanisms and systems in hospitals and doctors’ offices to minimize risk to patients.”…

From the Times Union of Albany (Let Juries Judge Malpractice):

If a baby is born with brain damage because the mother’s obstetrician doesn’t arrive at the hospital until hours after he’s called and no one on the hospital staff notices clear signs that the fetus is in distress, should that mother have the right to sue the doctor and hospital?…

…But proposals are now being put forth in New York — at the instigation of health care special interests. These proposals would limit our rights in such cases in significant ways. Instead of protecting us, they would protect negligent physicians and hospitals. And, in considering these proposals, there was no one at the table representing the victims of negligent doctors…

…Caps on awards are simply the health care industry’s way of insulating negligent doctors and hospitals, preventing their victims from receiving the compensation they deserve and removing the deterrent effect that justifiable awards can have. These proposals will not save the state money. They will not reduce Medicaid costs because Medicaid does not fund malpractice awards. (more)

From the PopTort (How Hospital Lobbyists and Execs Can Get Carte Blanche To Rewrite Your State’s Civil Justice System!):

Here is our latest “How To of the Day” submission to WikiHow:

If you are a wealthy hospital executive or lobbyist and want to do something extra special for your members, like protect them when they kill or injure children, things may be looking up for you in states where the GOP has taken over. But what about a State like New York, where the legislature (or at least part of it) actually cares about protecting the rights of the sick and injured and ensuring patient safety? This is not so easy! But get ready, cause there’s a solution:

From Joanne Doroshow, Center for Justice and Democracy (NY Hospital Execs Try to Change Medicaid Rules Behind Closed Doors):

Whatever has been going on behind the closed doors of Governor Andrew Cuomo’s Medicaid Redesign Team,loaded with self-dealing lobbyists and hospital executiveswho make Wall Street level salaries, it’s time for New Yorkers to say enough.

Many have already complained about how this Team has been dominated by hospital and industry lobbyists, with consumer or patient advocates mostly excluded. Now we find out that these lobbyists are using this process not to save Medicaid money, but to execute a backroom deal that could create a financial windfall for negligent hospitals, incompetent health care providers and their insurance companies….

And what do the proponents of tort “reform” offer? They trash trial lawyers. One classic example comes from the constantly lawyer-bashing New York Post. Incapable of mustering actual public policy arguments, it reverts to calling anyone that represents a patient an “ambulance chaser.” That’s what you do when you can’t defend your position, you wage personal attacks. The medical malpractice hoax was exposed long ago. It also ignores the fact that the New York State Bar Association, which includes both defense and plaintiff’s lawyers among its ranks, trashed the “reform”arguments big time.

If you are aware of intelligently written pieces on the subject, preferably newspaper editorials,please let me know.

March 1st, 2011

New York To Cap Medical Malpractice Awards? (An Open Letter to the Legislature)

Dear New York State Legislators:

Deeply hidden from public view inside a report from the New York State Department of Health is a proposal to place an artificial $250,000 cap on medical malpractice pain and suffering claims. That report was given to Gov. Andrew Cuomo last week. The proposal is tucked inside something called the Medicaid Redesign Team, and was authored by insurance companies and medical institutions. There were no patient representatives on the committee.

You should soundly reject this anti-consumer bill on both public policy and monetary grounds.

First, a quick review of our current system before we get to the policy stuff: New York already has caps on personal injury cases for those runaway verdicts you see in the papers from time to time. These are not artificial, one-size-fits-all caps, but caps that are specifically geared to the individual cases. New York has successfully been doing this for almost 200 years for verdicts that are unreasonable, since Chief Judge James Kent wrote the following in Coleman v. Southwick in 1812:

“It is not enough to say, that in the opinion of the court, the damages are too high and that we would have given much less. It is the judgment of the jury, and not the judgment of the court, which is to assess the damages in actions for personal torts and injuries….The damages, therefore, must be so excessive as to strike mankind, at first blush, as being beyond all measure, unreasonable and outrageous, and such as manifestly show the jury to have been actuated by passion, partiality, prejudice, or corruption. In short, the damages must be flagrantly outrageous and extravagant, or the court cannot undertake to draw the line; for they have no standard by which to ascertain the excess.”

The standard is no longer “flagrantly outrageous and extravagant.” Now it reads, “deviates materially from what would be reasonable compensation” that is codified in section 5501(c) our Civil Practice Law and Rules:

In reviewing a money judgment in an action in which an itemized verdict is required by rule forty-one hundred eleven of this chapter in which it is contended that the award is excessive or inadequate and that a new trial should have been granted unless a stipulation is entered to a different award, the appellate division shall determine that an award is excessive or inadequate if it deviates materially from what would be reasonable compensation.

So a complainant not only needs to win the case before the jury, but that verdict then gets reviewed by the trial judge and then can be reviewed again by an appellate court. In other words, the system we currently use has a both a belt and suspenders to keep it from falling down.

What is the advantage of changing a system that isn’t broken? Well, by limiting the right to a trial by jury, it gives a healthy dose of immunities and protections to those that committed the wrongful acts. Is that an advantage? It is if you are the one trying to evade responsibility for your conduct.

If the artificial cap is in place, the injuries won’t be diminished. The only thing that will change is that the economic burden of those injuries will be borne by the victim instead of the party that caused them. Is it sound public policy to victimize the injured person a second time? Is it good public policy to discard the concept of personal responsibility?

At the moment, only the most severe injuries are the subject of malpractice suits. This is true for two reasons. First, the suits are very expensive to bring. There is little point bringing an action whose reasonable value might be $50,000, if it will cost that much in experts, records and depositions to get to verdict. And second, New York currently has some of the lowest attorneys fees in the nation as a result of “reforms” you enacted in the mid-1980s. Those fees start at 30% of the first $250,000 and rapidly slide down to 10% of anything over $1.25M. In other words, complex and expensive malpractice cases have lower legal fees than the norm, causing a predictable drop in the number of attorneys willing to undertake the difficult cases.

The result of that “sliding scale” fee structure is that doctors and hospitals in New York already enjoy a significant amount of immunity from medical malpractice cases. It is simply not cost effective to bring many of the actions that present themselves to our doors, even if they appear to have merit. Most lawyers that practice in this area, myself included, will reject at least 95-98% of the inquiries to the office.

The insurance companies and medical profession now ask you to give them a second giant helping of immunity by eviscerating the pain and suffering damages. The ones that will be hurt, of course, are those who have been most seriously hurt. It will have no effect on frivolous cases, as they do not have a value over $250,000. They have a value of zero.

And it isn’t as if granting such immunities and protections will lower the incidence of malpractice, which already causes up to 98,000 deaths a year according to the Institute of Medicine. If the government wants to cut Medicaid costs, and cut lawsuits, the efforts must be devoted to safety, not killing patient rights. Telling people they can act with impunity doesn’t increase safety.

If the top pain and suffering award is only $250,000 — which sounds like a lot if you grew up in the Great Depression but means quite a bit less when a surgeon wants $5-10,000 to come in to court and testify for a morning — the effect will be courthouse doors being slammed shut in the faces of many people. Any case with even modest complexity will be rejected by attorneys, and the victim left to suffer without compensation.

And not only is this lousy public policy, but it also makes no economic sense. What happens to someone crippled by malpractice? Generally, they can’t work anymore or raise their children if they have them. They also may be uninsurable due to their pre-existing conditions. Who pays when the injured person is poor? That’s right, the public does in the form of tax dollars going to various welfare and Medicaid programs.

But if Big Hospital, Inc. commits malpractice and injures someone, why should the taxpayers be saddled with these burdens? Why shouldn’t the hospital be paying for the damage it caused? Ultimately, of course, someone will pay, and it sure makes more sense that the one that did the damage should pay the bill and not the victims or taxpayers.

Were you worried about the costs of malpractice to medical care? Don’t worry too much. For the costs are less than 1/2 of one percent.

In sum, this proposal crafted by insurance companies and medical institutions is not only anti-consumer, but will saddle taxpayers with burdens caused by others. It makes no sense on public policy grounds or economic grounds. There will, however, be a windfall profit for the insurance companies and those doctors that hurt the most people and make the biggest mistakes.

For more on the subject:

State Bar Blasts Proposal to Cap Medical Malpractice Awards (New York Law Journal)

The New York State Bar Association and its president yesterday blasted a recommendation by Governor Andrew M. Cuomo’s Medicaid reform task force to cap medical malpractice awards for non-economic losses at $250,000.

Such caps are “anathema with respect to equal protection/access to justice,” the state bar’s Committee on the Tort System said in a memo in opposition to the Medicaid Redesign Team’s recommendation. The memo was endorsed by the bar’s executive committee….

How New York Caps Personal Injury Damages

…So why put arbitrary caps in place if common sense ones already exist? Because the movement to do so has nothing to do with finding justice, but rather, is run by big business and its front groups such as the U.S. Chamber of Commerce to give negligent conduct various forms of immunities and protections when folks are injured. The idea is to remove the concept of personal responsibility for one’s actions…

Medical Malpractice Insurers Price-Gouged Doctors During This Decade

Americans for Insurance Reform (AIR) announced today the release of Stable Losses/Unstable Rates 2007, a new study that examines fresh insurance industry data to determine what caused the most recent medical malpractice insurance crisis for doctors. The study by AIR, a coalition of over 100 consumer and public interest groups representing more than 50 million people, finds that the insurance crisis that hit doctors between 2001 and 2004 was not caused by claims, payouts or legal system excesses as the insurance industry claimed….

Medical Malpractice Economics

Two weeks ago I wrote Medical Malpractice – A Primer, directed toward members of the medical community due to a recurring theme I saw on medical blogs: The idea that such suits are brought cavalierly….

I promised a follow-up on how cases are selected by a plaintiff’s attorney, but first want to deconstruct the time and money needed if the matter is taken. For only by understanding the time and money risks can one appreciate the importance of careful screening for potential litigation…

The Medical Malpractice “Crisis” Hoax — From Public Citizen

…Good doctors, however, don’t seem to be the problem. Since 1991, according to the report, 5.9 percent of U.S. doctors were responsible for 57.8 percent of the number of medical malpractice payments. That is an extraordinary statistic.

A few other points from the report, and things to think about when someone advocates closing the courthouse door to those injured by negligence:

The number of malpractice payments declined 15.4 percent between 1991 and 2005.

Adjusted for inflation, the average annual payment for verdicts declined 8 percent between 1991 and 2005.

Payments for million-dollar verdicts were less than 3 percent of all payments in 2005.

Over 64 percent of payments in 2005 involved death, or major or significant injuries.

First, do no harm

…Two recent studies make it clear those policies have not been widely adopted. Last November, both the New England Journal of Medicine (NEJM) and the inspector general for the Department of Health and Human Services published results of studies showing that the level of risk to patients in our nation’s hospitals is at crisis levels, with hundreds of people dying daily from medical errors…

Do Texas Med-Mal Damage Caps Work? (What Do You Mean By “Work”?)

…But what, exactly does it mean for a statute to “work” when it reduces the ability of the most badly injured individuals to recover for their loss?

Does offering government protectionism for tortfeasors mean it works?

Does stopping those who’ve been victimized from recovering from their loss mean it works?

Does destroying the concept of personal responsibility for one’s actions mean it works?

If the objective is to offer windfalls to those whose negligence has injured others then one might say it works. But that doesn’t makes it good public policy…

Child’s Feet and One Hand Amputated After Emergency Room Delay (California Tort “Reform” In All Its Glory)

…For out in California, they enacted a one-size-fits-all tort “reform” with a cap of $250,000 on non-economic damages (pain and suffering). The state did this in 1975. And it hasn’t changed in the last 35 years. Adjusted for inflation, it would be about a million dollars today. But it has never been adjusted.

That’s right, a lifetime of missing three limbs, if she survives, and this child might receive compensation of $250,000 for her pain and suffering. Less, of course, the money spent to hire the experts, take the depositions, get all the records, and get the case to trial after a few years, and paying the lawyers to do it. Assuming that lawyers can be found to put forth the money and absorb the risk for a contingent fee….

Does the Tea Party Believe in Conservatism or Tort “Reform”? (8 Questions)

As the Tea Party movement gains more attention, some folks want to know exactly what they believe in. Today’s question: Do they believe in a smaller, less intrusive, government or will they follow the Republican Party down the path of Big Government Tort “Reform”?

Since the Tea Party is a nascent and disorganized collection, I’m tossing out eight questions for those conservatives in the movement to ponder as they decide which side of the tort “reform” debate they are on…

February 21st, 2011

Should Residents and Students Be Sued in Medical Malpractice Cases?

Ace medical blogger Kevin Pho, of Kevin M.D.

Dr. Kevin Pho is probably the medical blogosphere’s leading blogger, and he puts up an interesting commentary entitled Medical Students Should Not Be Liable for Malpractice. Why? Because they are, for the most part, being supervised by others who are completely responsible for what they do.

He writes due to a bill in Arizona on the subject that seeks to confer immunity on medical students for errors of negligence. Dr. Pho supports the bill, writing:

Injured patients do not benefit from suing medical students. If negligence occurs, a supervising physician will answer the charges, and participate in the malpractice process.

Leave medical students alone, and exempt them from medical malpractice lawsuits.

For the purposes of this post, I am expanding beyond this Arizona bill and also broadening the subject to include residents, who are also supposed to be supervised (albeit to a lesser extent). The principle is the same, particularly for the junior residents; there is someone overseeing what they do.

This is the issue for the lawyers: Why sue these doctors-to-be or young residents if there is a medical practitioner or hospital that is supervising, who will be liable for their conduct?

Personally, I would prefer not to sue residents, and I certainly wouldn’t want to sue a medical student, but attorneys representing patients are sometimes forced to if they are going to fulfill their obligation of “zealous advocacy” to their clients.

I’ll explain how this happens in the real world with of one of my own cases, long since settled, no names needed. Some years back a young resident was putting a catheter into an elderly patient’s jugular vein so the doctors would have easy access. He missed and put it in the carotid artery. A nurse discovered this shortly afterward, the patient was rushed into surgery to repair the artery, but the patient died.

I sued the hospital, but not the resident who did the deed since his name was an unintelligible squiggle on the chart. Since the hospital was responsible for any treatment he gave, it didn’t really matter from a legal standpoint, right?

Well, not quite. You see, when people are a party to a lawsuit they are often treated differently than those who are non-party witnesses. And if there are different rules there will be different consequences.

In this case, the resident was produced for deposition as a person with knowledge of the event — produced as an employee, not as a defendant. I learned during the questioning that he put together a PowerPoint presentation of the event for a hospital’s internal conference that wanted to know what about this “adverse outcome.” I asked for the document, and the defense lawyer refused, telling me it was privileged. And she was technically correct under New York’s Education Law §6527(3) that governs such internal quality reviews that are done by hospitals.

But the law has an exception for those that are actually parties to lawsuits. And that exception reads:

The prohibition relating to discovery of testimony shall not apply to the statements made by any person in attendance at such a meeting who is a party to an action or proceeding the subject matter of which was reviewed at such meeting.

We were entitled, therefore, to copies of any statements a person might have made to an internal committee doing reviews of incidents, but only if that person was a defendant; Otherwise it is privileged because of the public policy of candor in such committees to improve medical care.

Now this was the interesting part. I still had time to add the young resident to the suit, and I could then get the document. Since he was the one that actually made the error, this shouldn’t be any kind of problem from a legal perspective. So I made an offer to defense counsel. If I sue him, I told her, I will be entitled to the document. So why not just turn it over and I’ll agree not to sue him?

Sounds reasonable, right? I figured I was moving the case quickly and getting the document my client needed to help establish liability, and which I knew I could get one day. And at the same time the young doctor would be spared the understandable anxiety of having his name on the suit, and the potential of being included in the secretive National Practitioners Data Bank that tracks significant settlements and verdicts against doctors, the results of which could follow him when he applies for his next job. This was a pretty clear win-win for both sides.

But the answer from defense counsel a few months later was no. And further, I was told, they would cross-move to have me sanctioned if I moved to amend the suit to add the young resident as a defendant, though I was never really clear on what theory they could possibly make such a motion, unless desperation is a theory. So I ignored the threat and moved to add the resident as a party, which I was obligated to do if I was going to represent my client well. And defense counsel cross-moved to have me sanctioned for making threats to add him as a defendant. Yes, my motion was granted and yes the cross-motion was laughed out of court. (My expert legal ethicist wrote that I was a mensch for making the offer.)

But, to directly answer the question of Dr. Pho, there are times when having a person added as a party to a lawsuit is beneficial because it helps in discovery.

Here are two other ways it might help: If the student/resident moves out-of-state, and they move often at this point in their careers, the plaintiff still has access to them because, as a party, they are required to participate in the litigation and it makes getting depositions and documents easier. And it also helps at trial, because if they don’t show up to testify they are going to have some serious explaining to do.

And last, if the young doctor is a party, s/he can be asked their opinions. If they are merely fact witnesses, they don’t have to give their opinions. (This is the law in New York; It may differ elsewhere.)

And so, Dr. Pho is right that the students shouldn’t be added as defendants, but only philosophically. I don’t know what the law is in Arizona with respect to the three issues I just raised, but in the bigger picture it is easier to understand why such people do get sued; Because the law treats a party to a lawsuit differently than someone who is merely an employee of a party.

February 3rd, 2011

The Million Dollar “Loss of Consortium” Claim

A blockbuster decision, of sorts, emerged quietly from the Appellate Division (Second Department) last week. In it, the appellate court evaluated a jury verdict designed to compensate for 11 months of injuries between the time of malpractice and death. And part of that decision was $1,000,000 for loss of consortium to the husband. (A derivative claim also called “loss of services.”)

This medical malpractice case concerned allegations of brain damage and death caused by the mistreatment of pancreatitis in Theresa Capwell at Westchester Medical Center and mismanagement of her respiratory condition. This led to brain damage and, ultimately, to the filing of this suit. The details are covered more thoroughly by John Hochfelder, who dug out the details that are completely missing from the appellate decision (see Capwell v.Muslim).

The jury returned a verdict of $3,000,000 for the pain and suffering of Ms. Capwell, a striking amount for 11 months of pain and the fact that at least part of the time Ms. Capwell was in a persistent vegetative state. That is important because in New York, one must have some conscious ability to appreciate the pain one was in for a jury to render compensation. It’s unclear how much of the time she had a level of awareness, based on the write up, but that isn’t the reason I write.

Rather, the reason I write is the award for loss of consortium to the husband for $4,000,000 by the jury that was reduced by the trial court to $1,000,000 (see How New York Caps Personal Injury Damages). A million dollars for 11 months of loss of consortium?

Just to review, the loss of consortium claim belongs to the spouses of injured parties, and the jury awards damages if the are also awarding to the injured spouse. That amount is sometimes not large, in part because the jury is looking at far greater damage to the one with the physical injuries. In fact, in some cases, lawyers don’t even bother to make the claim as it is sometimes too small to bother with the time needed (and risks involved) in litigating it.

But, if it is brought, these are the items of damage that the jury evaluates, to evaluate “pecuniary loss.” This comes from the charge the judge gives to the jury.

In deciding the amount of such damages, you may take into consideration the nature and extent of the (husband’s, wife’s) services and society before the injury, including (his, her) disposition, temperament, character and attainments; the interest (he, she) showed in (his, her) home; the social life of (his, her) family and in the comfort, happiness, education and general welfare of the members of the family; the services (he, she) rendered in superintending the household, training the children, assisting (his, her) spouse in the management of the business or affairs in which the spouse was engaged, if any; (his, her) acts of affection, love and sexual intercourse and the extent to which the injuries (he, she) sustained prevented (him, her) from performing such services and providing such society. You will award plaintiff (husband, wife) such an amount based upon the evidence and upon your own observation, experience and knowledge conscientiously applied to the facts and circumstances as in your judgment will compensate (him, her) for the pecuniary loss that you find (he, she) has sustained and is reasonably certain to sustain in the future by reason of (his, her) spouse’s inability to perform such services and provide such society as a result of (his, her) injuries.

So where did the million dollar compensation come from? Well, according to Hochfelder, the husband was the family breadwinner, and:

After the malpractice, for 11 months, their entire relationship consisted of his visiting her in the hospital, touching her face and kissing her in an effort to relax her, playing her favorite television shows and watching her deteriorate and die.

There is an interesting lower court decision that addresses this subject; one of the very few in New York to do so (Zavaglia v. Sarah Neuman Center for Healthcare and Rehabilitation). It comes out of Westchester County by Justice Alan Scheinkman, who is now the county’s Administrative Judge. (The Capwell case was heard by Justice Nicholas Colabella, also in Westchester.) In Zavaglia, Justice Scheinkman held that when a spouse cares for his or her mate by providing the services that a home health aide might, that this is compensable the same way funds spent for that purpose would be recoverable.

That case isn’t cited in the appellate decision, or in the decision from the court below, but it would seem that the analysis would have played one part in evaluating the loss of services claim. (There are, of course, other components listed above.)

With this million dollar award, out of a traditionally conservative Second Department, it seems that litigants who have real loss of service issues might do well to work that part of the case up more than they had in the past.