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In 1978 Emma McDougald was a thirty one year old


In 1978 Emma McDougald was a thirty one year old. On September 7 that year, she underwent an elective caesarean section and tubal lifation at New York Infirmary. During the operation, she became anoxic. She delivered a healthy girl child but suffered severe brain injury after the delivery. She lapsed into a comatose state and has been like that since then. She is a permanent spastic quadriplegic and suffer fecal and urinal incontinence. She cannot communicate or respond to verbal commands and breathes through a tracheostomy and has to be fed through a nasogastric tube.

She and her husband Johnny sued Dr. Sara Garber, Dr. Sonia Armengol, Dr. Sumedha V. Kulkarni and Dr. Bharatee W. Sharma, the doctors who conducted the operation for various acts of medical malpractice. In the trial court, both parties provided expert testimony. Dr. Lawrence Kalpan a Board certified neurologist testified for Emma and Jonhnny. Dr. Sobin, another Board certified neurologist testified for the defendant doctors.

The jury awarded $11,150,102.00, collectively, which was subsequently reduced by the trial court to $6,296,728.00. Emma and Johnny appealed from those parts of the order and the judgment which reduced damages, while the doctors sought a further reduction. In appeal, the doctors specifically sought elimination of the award for loss of enjoyment of life and challenged the award for loss of enjoyment of line separate and in addition to an award for pain and suffering.

The appeal court affirmed the trial court’s decision and dismissed the appeal. According to a person close to the family, loss of enjoyment of life has been a component of damages ever since 1857. A person need not be able to fully appreciate the consequences of the injury or verbalize the pain. The pain and suffering component of damages may include the effect of the injuries on the person’s normal pursuit and pleasures of life.

One of the potentially largest intangible costs associated with the victim’s injury is pain and suffering. Although pain and suffering do not involve a monetary loss, they may be monetized for purposes of comparison with other costs. Related to pain and suffering is the potential cost associated with the inability to continue some enjoyable leisure activities. These might be called loss of enjoyment costs.

A substantial portion of many tort awards is for the victim’s non-economic loss – pain and suffering and diminished quality of life. There is no doubt that this is a real loss, but there is also no doubt that money doesn’t make up for it. Traditionally, courts have concluded that an award of damages for pain and suffering serves several purposes. It provides some measure, however inadequate, of the plaintiff’s loss, affirming the significance of the plaintiff’s injury and requiring that the defendant bear the full cost of his wrongdoing. It also provides the plaintiff a fund for activities and pleasures that can reduce his pain and make up for his loss of enjoyment

A report said that compensation for pain and suffering can be awarded based on the effect of the injuries on the person’s ability to enjoy the normal pursuits and pleasures of life. In New York, loss of enjoyment of life may be measured in damages as a component of paid and suffering. In fact, the highest court in the State of New York has placed the loss of enjoyment of life as a permanent injury in the category of a separate element of damages.

Loss of enjoyment of life and pain and suffering are distinct but often equated with one another. According to a source, both are intangible and arise under similar circumstances. But they can be distinguished from one another. While damages for pain and suffering are compensation for the physical discomfort and anguish, the loss of enjoyment compensates the person for the impairment of his or her capacity to enjoy life. Separate awards of damages for the two separate concepts allow for appellate review as to the excessiveness of the total award.

A loss of enjoyment of life claim should, therefore, consonant with the purpose and spirit of CPLR 4111(d), which requires an itemization of malpractice awards, be submitted as a separate element of damages, even though it is not explicitly listed therein as an element, while pain and suffering is. There is no criminal action here.

There are a lot of cases like this where the victims of medical malpractice may be entitled to compensation for pain and suffering and for loss of enjoyment of life. Although there is a conceptual difference between pain and suffering and loss of enjoyment costs to victims, the distinction can sometimes become blurred. Pain and suffering is a monetized value of the physical and mental pain and anguish endured by the victim owing to the injury. Loss of enjoyment costs involve the monetization of enjoyable activities the victim is no longer able to undertake as a result of the injury.

Malpractice litigation is a costly and tedious process. When you hire Stephen Bilkis & Associates to fight you birth injury lawsuit, you can rest assured that they will defend your position and present it so you can get all the damages that is due to you. If you or someone close to you has suffered a birth injury, call us at 1-800 NY – NY- LAW, and we start work as soon as we talk to you. We handle cases from anyone in New York and Long Island.

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