Harrison v. Dombrowski , 175 A.D.2d 37 ( 1991 )

— Judgment, Supreme Court, Bronx County (Lewis R. Friedman, J.), entered July 25, 1990 in the sum of $1,201,260 after a jury verdict finding in favor of plaintiff against defendants in a larger amount and reduced by plaintiffs stipulation to accept the judgment sum, reversed, on the law and the facts, without costs or disbursements and a new trial ordered solely on the issue of damages, unless plaintiff, within 20 days after service upon her attorney of a copy of the order to be entered herein, with notice of entry, serves and files in the office of the clerk of the trial court a written stipulation consenting to reduce the verdict in favor of the plaintiff to the principal amount of $692,200 and to entry of an amended judgment in accordance therewith. If plaintiff so stipulates, the judgment, as so amended and reduced, is affirmed, without costs or disbursements.

This is an action for wrongful death and conscious pain and suffering arising out of the alleged medical malpractice of two defendant physicians, both deceased. At trial, plaintiff established that defendants, a neurologist and an internist, had been negligent in failing to diagnose Martin P. Harrison, plaintiffs decedent, as suffering from normal pressure hydrocephalus, a treatable condition of the brain, rather than Alzheimer’s disease, which is progressive and incurable. Plaintiffs proofs established that normal pressure hydrocephalus could have been ameliorated in Mr. Harrison’s case by the implantation of a shunt to drain off excess brain fluid.

Plaintiff showed through expert testimony that defendants’ negligence caused the decedent’s death, and that if a timely diagnosis had been made and appropriate shunt surgery undertaken, his memory loss and dementia symptoms could have been alleviated and plaintiffs life prolonged.

The jury returned a verdict in favor of plaintiff and against both defendants and apportioned liability between them. The jury awarded itemized damages as follows:

pain and suffering -$ 400,000

lost earnings -$ 50,000

wrongful death -$ 1,000,000

lost services -$ 250,000

On defendants’ post-trial motion pursuant to CPLR 4404, the trial court reduced wrongful death damages to $300,000. Plaintiff stipulated to accept the reduction, and judgment was entered accordingly.

We perceive no reason to disturb the jury’s findings as to liability, apportionment, or pain and suffering. However we conclude that the damages awarded were excessive and unsupported by the evidence in three categories.

Lost Earnings: When Mr. Harrison first consulted defendants

about two years before his death, he was sixty-four years old and earning approximately $440 a month. There was no proof that decedent could have returned to his more lucrative prior employment as an advertising salesman, and nothing to support the lost earnings awarded by the jury of $50,000 for the relevant two-year period. While under defendants’ care, decedent worked at his messenger job until February, 1983, when he became physically unable to continue; he died approximately five months later in July, 1983. The maximum damages for lost earnings must therefore be limited to the sum of $2,200. Any greater award would be impermissibly based on pure speculation (Naveja v Hillcrest Gen. Hosp., 148 AD2d 429; Marmo v Southside Hosp., 143 AD2d 891).

Lost Services: The jury award of $250,000 in this category

was grossly excessive. Plaintiff’s attorney did not even address the subject of the services performed by the decedent on his direct examination of the plaintiff, and broached this topic only as an afterthought on redirect, when he asked the plaintiff what the decedent did around the house before he became ill. The plaintiff’s response, which is the sole evidence concerning the services performed by the decedent, is as follows:

"Well, he was good at painting, hanging paper. He had a yearly thing for fixing the roof. He would go to the stores for me, do the gardening. He liked to go out and see the neighbors and fix the flowers. He liked to try his hand at carpentry. I didn’t think he was too good. He liked to do that, though. That was about it.

"Q. Anything else?

"A. Well, anything — he would try things, everybody had to try things.

"Q. After he got sick did he do any of those things?

"A. No, no.”

Another consideration mandates a substantial reduction of the lost services recovery. Plaintiffs basic complaint against defendants was not limited to misdiagnosis but rested upon defendants’ failure to prescribe and carry out shunt surgery of their patient’s brain. Concededly, virtual total disability resulting from such significant surgery would have lasted a man of decedent’s age at least a year. Thus on plaintiffs own theory of her case she lost decedent’s services by reason of defendants’ negligence for no more than one year. Thus we fix the maximum recovery for plaintiff in this category at $50,000.

Set-Off: Plaintiff commenced this action in April, 1984.

Originally named as defendants, in addition to defendants at trial, were the Hospital of the Albert Einstein College of Medicine and Dr. Leon Thai, a neurologist who treated the decedent subsequent to his treatment by defendants. Plaintiff settled her claims against Dr. Thai and the Hospital for a total of $60,000 in June, 1988.

On this record, it was error for the trial court to refuse to reduce the amended gross award for wrongful death by the $60,000 settlement paid by these settling joint tortfeasors (General Obligations Law § 15-108 [a]; Bonnot v Fishman, 88 AD2d 650, affd 57 NY2d 870; see, Killeen v Reinhardt, 71 AD2d 851). We conclude on the evidence at trial that this settlement was in satisfaction of plaintiffs wrongful death cause of action and not attributable to the conscious pain and suffering claim.

Thus we conclude an additional remittitur of plaintiffs damages in the sum of $307,800 is mandated, and that the components of plaintiff’s recoverable damages cannot exceed

the following:

pain and suffering................. $400,000

lost earnings...................... 2,200

wrongful death................... 240,000

lost services ...................... 50,000

Total principal award............. $692,200

Concur — Carro, J. P., Wallach and Kupferman, JJ.