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July 1, 2021

Court Finds Malpractice and Public Health Law § 2801-d Actions Have Same Conscious Pain and Suffering Criteria

The Appellate Division, First Department in its recent decision in Frederick Smith etc. v. Northern Manhattan Nursing Home, Inc.1 reversed the denial of the defendant’s motion to set aside the pain and suffering award of $2.5 million and ordered a new trial on damages for conscious pain and suffering; the trial court failed to include any discussion of consciousness from its jury charge or the verdict sheet, thus improperly taking the issue away from the jury.

In Smith, the defendant’s failure to monitor the condition of the decedent, who suffered from hypoglycemia, and immediately transfer him to a hospital when his glucose level was low caused the decedent to have anoxic encephalopathy that destroyed his brain function. The decedent never regained consciousness and passed away approximately six months after the incident.2

While the First Department determined that the trial court properly granted the plaintiff’s motion for a directed verdict on liability and causation on her Public Health Law (PHL) §2801-d and nursing malpractice claims, the court concluded that it was improper to allow the jury to award damages for pain and suffering without first determining whether the decedent “experienced some level of awareness following the injury.” 

In reaching its conclusion, the court determined that the same rule to determine whether a decedent “experienced some level of cognitive awareness following the injury” applied both in the context of a violation of PHL § 2801-d, as well as in the context of general negligence and malpractice. The court further highlighted that the language of PHL § 2801-d has been interpreted as authorizing a separate cause of action, not a separate category of damages.    

The Smith decision emphasizes not only that the assessment of consciousness is an issue to be resolved by the jury, but also that that whether a claim sounds in malpractice or whether it is pursuant to PHL § 2801-d, the assessment of pain and suffering is the same.

If you have any questions regarding the content of this alert, please contact Tara Sciortino, counsel, at; Amanda Miller, associate, at; or another member of the firm’s Professional Liability Practice Area.

12021 N.Y. Slip Op 03818 (1st Dept. 2021).

270 Misc.3d 891 (Sup. Ct. N.Y. County, Sep. 3, 2020).

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