Supreme Court, New York County, September 3, 2020

Caitlin A. Robin, New York City, for defendant.

Jacoby & Meyers, LLP, Newburgh (Michael S. Feldman of counsel), for plaintiff.

{**70 Misc 3d at 893}On December 9, 2019, the jury awarded $2,500,000 for the deceased Frederick Smith's pain and suffering and $480,000 for his medical expenses. Defendant moves to set aside the jury's verdict on plaintiff's damages on the grounds that the damages awarded were against the weight of the evidence and materially deviated from reasonable compensation (CPLR 4404 [a]; 5501 [c]), or for a hearing on plaintiff's collateral sources for Smith's medical expenses awarded by the jury. (CPLR 4545 [a].)

In sum, defendant claims that its former patient experienced no conscious pain and suffering after defendant's unlawful conduct destroyed his brain function. The court holds that Public Health Law §§ 2801-d and 2803-c (3) (e) and the regulations under those statutes are designed to remedy that paradox.

During Frederick Smith's residence at defendant nursing home beginning December 29, 2008, defendant ascertained that Smith was hypoglycemic, with low glucose levels, a condition that, if not continually monitored, may cause loss of oxygen to the brain and consequent brain damage. Nevertheless, he was alert, oriented, and responsive; socialized and played games with his family and co-residents; and enjoyed the outdoors. He enjoyed life, even if his physical condition necessitated his residence in a nursing home.

On October 19, 2011, after a hospital stay, Smith, age 74 years, was readmitted to defendant nursing home. He still was responsive and suffered no adverse mental, emotional, or psychosocial conditions. Over the next three days, however, his glucose levels decreased, yet defendant did not monitor the levels regularly or frequently enough, did not modify his food intake to address this condition, and did not arrange a consultation with a physician.

On October 22, 2011, at 8:00 a.m., Smith's glucose level continued to be low, so he was administered glucagon. By 8:30 a.m., his glucose level had risen, and he was responsive to verbal and tactile stimuli, so the medication was discontinued. He received no care until 2:00 p.m., when his glucose level was slightly higher than at 8:30 a.m. At 2:30 p.m., his vital signs were stable, and he was encouraged to drink more fluids, but was not monitored further and was never examined by a physician.

At 7:41 p.m., Smith was suffering shortness of breath, lethargic, and unresponsive to all stimuli. Defendant's staff{**70 Misc 3d at 894} notified a physician, summoned Emergency Medical Services, and transferred him to Mount Sinai St. Luke's Hospital. He suffered hypoglycemia leading to anoxic encephalopathy that destroyed his brain function. He never regained consciousness. On December 1, 2011, Mount Sinai St. Luke's Hospital transferred him to hospice care at Carter-Goldwater Memorial Hospital, where he remained until his death April 15, 2012. Plaintiff, Smith's widow, did not sue for his wrongful death, but sued for his physical and emotional harm, lost enjoyment of life, and expenses for hospital and hospice care from October 22, 2011, to April 15, 2012, caused by defendant's failure to monitor his condition and immediately transfer him to a hospital when his glucose level was low October 22, 2011, or before.

Defendant admits that Smith was conscious October 22, 2011. From a review of Smith's medical records between October 23, 2011, and his death, plaintiff's medical and nursing experts were uncertain regarding the extent of his consciousness over that period. He was administered strong pain medications, morphine and fentanyl patches, however, indicating that he was experiencing pain. The anoxic encephalopathy necessitated a tracheotomy to enable him to breathe with a ventilator and insertion of a feeding tube into his stomach. Even if his conscious pain and discomfort were uncertain, even defendant does not question that Smith suffered physical and emotional harm that caused him to lose all enjoyment of life and dignity over that period.

A. Appellate Benchmarks

[1] It is incumbent on defendant, when challenging a jury's verdict as excessive, to present lower awards for comparable injuries that appellate courts have sustained despite an appeal to increase the award or have lowered because the jury's award was unreasonably high. (Matter of 91st St. Crane Collapse Litig., 154 AD3d 139, 153 [1st Dept 2017]; Wilson v City of New York, 65 AD3d 906, 911 [1st Dept 2009]; Morsette v "The Final Call", 309 AD2d 249, 256 [1st Dept 2003]; Reed v City of New York, 304 AD2d 1, 7 [1st Dept 2003]; see Erosa v Coomaraswamy, 129 AD3d 578, 579 [1st Dept 2015]; Urbina v 26 Ct. St. Assoc., LLC, 46 AD3d 268, 275 [1st Dept 2007].) Where an appellate court simply sustains an award or increases an award because it was unreasonably low, that approved award means{**70 Misc 3d at 895} only that it is within the range of reasonableness and not that a higher award would not also be within that range. Defendant fails to satisfy its burden, because each of the awards defendant presents is either a settlement or an award that was never appealed.

Even the two awards in the latter category are unsusceptible of comparison to the harms and losses that Smith suffered. In Flores v United States (US Dist Ct, SD Tex 2002), the jury awarded $1,300,000 for pain and suffering of the deceased who, like Smith, suffered hypoglycemia that led to his death. Not only was this award in Texas over 17 years before the verdict here, but defendant fails to show how long the deceased in that action suffered between the hypoglycemia and his death, compared to Smith who suffered for six months. In Brabant v Libby (Ga St Ct, Fulton County 2009), in Georgia over 10 years before the verdict here, the deceased suffered no more than 15 hours between the surgical treatment that caused her death and her death. Yet the jury awarded $535,240 for those 15 or fewer hours.

B. Damages for Violations of the Public Health Law and Regulations

Significantly, all the awards defendant cites were for conscious pain and suffering due to the defendants' medical or nursing home malpractice. Defendant's liability here was for nursing home malpractice and for violations of Public Health Law § 2803-c (3) (e), entitling Smith to "adequate and appropriate medical care," and the Public Health Law's implementing regulations. (See 10 NYCRR 415.3 [a], [e] [1] [i]; 415.5, 415.12, 415.13, 415.15; Pichardo v St. Barnabas Nursing Home, Inc., 134 AD3d 421, 425 [1st Dept 2015]; Ward v Eastchester Health Care Ctr., LLC, 34 AD3d 247, 248 [1st Dept 2006]; Zeides v Hebrew Home for Aged at Riverdale, 300 AD2d 178, 179 [1st Dept 2002]; Kash v Jewish Home & Infirmary of Rochester, N.Y., Inc., 61 AD3d 146, 148-149 [4th Dept 2009].) These regulations entitled him to adequate physician's services, nursing services, and other medical services; care necessary to attain his highest practicable physical, mental, and psychosocial well-being and to enhance his activities of daily living; and care that enhanced his quality of life, dignity, and self-determination. Defendant's inadequate care deprived him of all these rights. He no longer was alert, oriented, or responsive; no longer socialized or played games with his family or co-residents; and no longer enjoyed the outdoors. He no longer enjoyed life.{**70 Misc 3d at 896}

Actionable injuries caused by a violation of the Public Health Law or the regulations under it include, but are not limited to, "physical harm to a patient; emotional harm to a patient; death of a patient; and financial loss to a patient." (Public Health Law § 2801-d [1].) This definition of injuries does not require a conscious awareness of the harm. The damages recoverable for these injuries "are in addition to" damages recoverable for pain and suffering due to nursing home malpractice. (Public Health Law § 2801-d [4]; Zeides v Hebrew Home for Aged at Riverdale, 300 AD2d at 180; Kash v Jewish Home & Infirmary of Rochester, N.Y., Inc., 61 AD3d at 149; see Pichardo v St. Barnabas Nursing Home, Inc., 134 AD3d at 425.) Defendant does not challenge the directed verdict on defendant's liability for both nursing home malpractice and violation of the Public Health Law and the regulations under it.

Although a level of cognitive awareness is a prerequisite to recovery for pain and suffering, including lost enjoyment of life, sometimes resulting "in the paradoxical situation that the greater the degree of brain injury inflicted by a negligent defendant, the smaller the award the plaintiff can recover," this rule applies "in the absence of culpability beyond mere negligence." (McDougald v Garber, 73 NY2d 246, 255 [1989].) Here, defendant's culpability that extended beyond mere negligence, to a violation of the Public Health Law and regulations, allowed plaintiff's recovery "to achieve a balance between injury and damages" (id.), which is precisely the objective of Public Health Law § 2801-d (1) and (4).

Whether Smith was conscious of his suffering or not, his loss of physical and cognitive functioning for the last six months of his life unquestionably constituted physical harm. His loss of cognitive functioning included a loss of positive emotions, constituting emotional harm. He also lost all enjoyment of life, including the ability to participate in the activities that had been part of his life before the anoxic encephalopathy. The jury was instructed to compensate plaintiff for all these harms and losses.

C. Conscious Pain and Suffering

Moreover, for the entire day October 22, 2011, leading up to Smith's loss of consciousness, a period equivalent to the period of the deceased's suffering in Brabant v Libby cited by defendant, Smith suffered shortness of breath and unresponsiveness. (Matter of 91st St. Crane Collapse Litig., 154 AD3d at 155-156 [reduction to $5,500,000 for 16 minutes and $7,500,000 for four{**70 Misc 3d at 897} hours]; Vargas v Crown Container Co., Inc., 155 AD3d 989, 993 [2d Dept 2017] [reduction to $750,000 for two minutes]; Dowd v New York City Tr. Auth., 78 AD3d 884, 885 [2d Dept 2010] [reduction to $1,200,000 for 1.5 hours]; see Sanchez v City of New York, 97 AD3d 501, 502-503, 506 [1st Dept 2012] [increase to $400,000 for 10 minutes]; Lubecki v City of New York, 304 AD2d 224, 230, 238 [1st Dept 2003] [$3,000,000 for one hour sustained]; Hyung Kee Lee v New York Hosp. Queens, 118 AD3d 750, 752-753 [2d Dept 2014] [$3,750,000 for three days sustained].) In determining the reasonableness of damages for conscious pain and suffering between injury and death, the court considers the injured person's degree of [*4]consciousness, the severity of his pain, his awareness of his dire circumstances, and the duration of his suffering. (Matter of 91st St. Crane Collapse Litig., 154 AD3d at 153.) Over the next six months, Smith underwent a tracheotomy and insertion of a feeding tube, all the while being administered strong pain medications, from which the jury well may have inferred he was experiencing pain. If he lacked all consciousness of pain, the hospital would have had no reason to administer strong pain medications. (Gonzalez v New York City Hous. Auth., 77 NY2d 663, 670 [1991].)

Thus, even absent a violation of the Public Health Law and regulations, plaintiff met her burden to show Smith's minimum level of awareness of his circumstances, unquestionably over the entire day October 22, 2011, and even afterward. (Cummins v County of Onondaga, 84 NY2d 322, 324-325 [1994]; Gonzalez v New York City Hous. Auth., 77 NY2d at 670; Matter of 91st St. Crane Collapse Litig., 154 AD3d at 154; Lopez v Gomez, 305 AD2d 292, 293 [1st Dept 2003].) Defendant was free to persuade the jury that, due to Smith's lack of consciousness, his pain and suffering was minimal, but the jury was free to conclude otherwise. Even where cognitive awareness is a prerequisite to recovery, "[w]e do not go so far . . . as to require the fact finder to sort out varying degrees of cognition and determine at what level a particular deprivation can be fully appreciated." (McDougald v Garber, 73 NY2d at 255; see Matter of 91st St. Crane Collapse Litig., 154 AD3d at 154; Sanchez v City of New York, 97 AD3d at 506.)

Defendant offered no evidence that Smith was incapable of experiencing pain or discomfort or realizing his inability to function. (See Matter of 91st St. Crane Collapse Litig., 154 AD3d at 153.) Where defendant offered no evidence minimizing{**70 Misc 3d at 898} Smith's physical or emotional harm, no evidence minimizing his lost enjoyment of life, whether based on his lack of enjoyment of life before October 22, 2011, or on his unconsciousness afterward, and no evidence of his unconsciousness, the record provides no basis to find that the evidence weighed against plaintiff. (Nemeth v Brenntag N. Am., 183 AD3d 211, 230 [1st Dept 2020].) Similarly, defendant may not successfully claim that the verdict was excessive. (Reed v City of New York, 304 AD2d at 6-7; see Sanchez v City of New York, 97 AD3d at 503.) In sum, the jury's award of $2,500,000 is not unreasonably high for these injuries over six months, including the unquestioned pain and suffering Smith experienced as his condition declined unattended October 22, 2011. (Matter of 91st St. Crane Collapse Litig., 154 AD3d at 155-156; Vargas v Crown Container Co., 155 AD3d at 993; Dowd v New York City Tr. Auth., 78 AD3d at 885; see Lubecki v City of New York, 304 AD2d at 230, 238; Hyung Kee Lee v New York Hosp. Queens, 118 AD3d at 752-753.)

[2] Defendant maintains that plaintiff's medical bills from Mount Sinai St. Luke's Hospital and Carter-Goldwater Memorial Hospital, which formed the basis for the jury's $480,000 award for medical expenses, indicate that plaintiff's medical expenses have been or will be paid or partially paid by collateral sources. (CPLR 4545 [a].) Defendant now seeks disclosure to identify all potential collateral source payments. Defendant was provided the opportunity for such disclosure, however, before the note of issue was filed; received the bills on which defendant now relies well before the note of issue was filed; and does not point to any "unusual or unanticipated circumstances" after the note of issue was filed requiring plaintiff to provide further disclosure. (22 NYCRR 202.21 [d]; Arons v Jutkowitz, 9 NY3d 393, 411 [2007]; Palmiero v 417 E. 9th St. Assoc., LLC, 167 AD3d 472, 472 [1st Dept 2018]; Prevost v One City Block LLC, 155 AD3d 531, 537 [1st Dept 2017]; Allen v Hiraldo, 144 AD3d 434, 435 [1st Dept 2016].)

Nevertheless, the bills from Mount Sinai St. Luke's Hospital for October 23 to December 1, 2011, show payments by Medicare and by Medicaid, and the bills from Carter-Goldwater Memorial Hospital for December 1, 2011, to April 15, 2012, show payments by Medicare and by insurance. Defendant thus has presented evidence that collateral sources may have{**70 Misc 3d at 899} compensated or will compensate plaintiff for part of the medical expenses awarded. (CPLR 4545 [a]; [*5]Andino v Mills, 31 NY3d 553, 560-561 [2018]; Oden v Chemung County Indus. Dev. Agency, 87 NY2d 81, 83-84 [1995]; Stolowski v 234 E. 178th St. LLC, 89 AD3d 549, 549 [1st Dept 2011]; Johnson v New York City Tr. Auth., 88 AD3d 321, 327-328 [1st Dept 2011]; see Kromah v 2265 Davidson Realty LLC, 169 AD3d 539, 541 [1st Dept 2019].) Therefore defendant is not entitled to any further disclosure, but is entitled to a hearing, where the burden will rest on defendant to show, through the interpretation of these bills by a witness with personal knowledge or other admissible evidence, that collateral sources have paid or are available to pay a specific amount of the $480,000 in medical expenses awarded by the jury. (Oden v Chemung County Indus. Dev. Agency, 87 NY2d at 89; Kromah v 2265 Davidson Realty LLC, 169 AD3d at 541; Stolowski v 234 E. 178th St. LLC, 89 AD3d at 549; Johnson v New York City Tr. Auth., 88 AD3d at 328-329.)

For all the reasons explained above, the court denies defendant's motion to set aside the jury's verdict on the deceased Frederick Smith's pain and suffering rendered December 9, 2019. (CPLR 4404 [a].) The verdict is consistent with the evidence and awards plaintiff reasonable compensation for Frederick Smith's physical and mental harms and losses, including lost enjoyment of life. (CPLR 5501 [c].)

The court grants defendant's motion to the extent of ordering a hearing on whether collateral sources have paid or are available to pay a specific amount of the $480,000 in medical expenses awarded by the jury. (CPLR 4545 [a].) The hearing shall be held by videoconference September 23, 2020, at 10:00 a.m. The court will forward a notice to the parties' attorneys, which they may forward to any witnesses they intend to present. If any party intends to introduce an exhibit that is not part of the exhibits to defendant's motion or to plaintiff's opposition, that party shall provide a copy of the proposed exhibit to the other party by September 18, 2020.