Professional Negligence Law Reporter

A New York appellate court held that reversal of a pain and suffering damages award was warranted where any discussion of a nursing home resident’s consciousness was omitted from the jury charge or verdict sheet in a nursing home liability case.

Here, nursing home resident Frederick Smith suffered from hypoglycemia and required monitoring. One evening, he became unresponsive and was transported to a hospital. There, he was diagnosed as having suffered anoxic encephalopathy resulting from hypoglycemia. He never regained consciousness and died approximately six months later. His wife sued Northern Manhattan Nursing Home, Inc., alleging malpractice and violation of N.Y. Pub. Health Law §2801-d for the defendant’s failure to properly monitor Smith and timely transfer him to a hospital when his glucose level was low. A jury awarded the plaintiff $2.5 million for Smith’s pain and suffering and $480,000 for his medical expenses. The trial court denied the defendant’s motion to set aside the pain and suffering award.

The appellate court affirmed the trial court in part and vacated the jury’s pain and suffering award. The court found that the trial court should not have allowed the jury to award damages for pain and suffering without first determining that Smith had experienced some cognitive awareness of his injuries. The court also said that in the general negligence or malpractice context, such a finding is necessary and that this also holds true in causes of action brought under N.Y. Pub. Health Law §2801-d, which provides a separate cause of action but not a separate category of damages.

The court added that although a jury could have concluded, based on the evidence presented here, that Smith had the requisite cognitive awareness, it also could have reached a different conclusion. Thus, omitting any discussion of consciousness from the jury charge or verdict sheet deprived the jury of considering these various conclusions, the court said.

Consequently, the court ordered a new trial on damages for conscious pain and suffering.

Citation: Smith v. Northern Manhattan Nursing Home, Inc., 145 N.Y.S.3d 347 (N.Y. App. Div. 2021).