In every wrongful death lawsuit in New York, we ALWAYS try and claim that the injured patient was conscious and aware of the tragedy that was happening to them.

Why would we include that?

That would allow us to present a valid claim for the patient's pain and suffering from the time of the incident up until they died.

  • That could be seconds of pain and suffering.
  • It could be minutes.
  • It could be hours or days or even months.

Typically, the pain and suffering part of a wrongful death lawsuit is usually the largest component of damages that a surviving family can obtain. That's because the amount of compensation that a jury ultimately determines the family is entitled to is not set by any particular parameter or guideline.

Someone's pain and the suffering they endure is individual. A sixty year old who suffers a fractured femur after being hit by a car is going to have a different level of pain than a 20 year old. Their recuperation period will be different. Their complication rates will be different. Their healing ability and pain tolerance level will be different. Whether they need emergency surgery and the type of surgery will often be different.

A jury is entitled to compensate an injured patient with whatever amount they deem to be appropriate based upon the evidence. There is no maximum or minimum that the jury must consider.

However, there is a BIG WARNING here...

In order for a surviving family to recover for an injured victims' suffering, regardless of how long it existed before they died, there MUST be some level of conscious awareness of what was going on.

"Ok," you say, but whose conscious awareness? The surviving family members, or the patient who died?

The answer is, the patient who died.

According to the news reports here's a summary of what happened...

During Joan's endoscopy procedure she went into respiratory and cardiac arrest. EMS was called and transported her to Mount Sinai Hospital. She remained in a coma for the next 8 days until her daughter Melissa removed life support measures and Joan died.

The news reports that Joan never regained consciousness.

We're missing a key piece of information...

In order to have the endoscopy procedure, Joan needed to be put to sleep. Doctors will usually use a medication called propofol. That is injected by IV. That means that when she went into respiratory and cardiac arrest, she was already asleep, under anesthesia.

The level of anesthesia can be debated. Does it matter if it was twilight sedation, light anesthesia or something else?

In my opinion, it doesn't since she needs to be comfortably asleep in order to have the endoscopy performed. 

Here's why that's important...

In order to show that Joan had some level of pain and suffering, Melissa needs to show that Joan had SOME LEVEL of conscious awareness. If she's asleep during the procedure, the defense would have a simple time showing that she did not have ANY level of conscious awareness.

Then, if there was improper medical care, as there appears to be, that caused Joan to have significant brain damage putting her into a coma, then how is it possible that Joan could be conscious and aware of what was happening to her?

Well, here's the rub...

If she's asleep during the endoscopy and the wrongdoing happened while she was under anesthesia and she never awoke from the procedure, can Melissa claim that Joan experienced any CONSCIOUS LEVEL OF PAIN AND SUFFERING?

The answer is 'maybe'.

Although any Joan Rivers fan would likely believe that any violations from the basic standards of medical care caused Joan significant pain and harm, when you look critically at the medical events, step by step, we see there may not be a viable claim for conscious pain and suffering...unless...

  • Unless Melissa and her attorneys are able to find comments and notes in the medical records to indicate that Joan was somehow responsive to painful stimuli.
  • Unless somehow Joan responded to Melissa's voice.
  • Unless there was evidence she was moaning and groaning.

If Melissa is able to show there was some evidence of these things, then it may be possible to show there was SOME LEVEL OF CONSCIOUS PAIN AND SUFFERING.

Not having had the benefit of reviewing Joan's records, there's no way to say if there were observations by the nurses of moaning and groaning. There's no way to know, without reviewing Joan's medical records whether she was responsive to pin pricks or even touching her eyes. The news reports do not say whether Joan had decerebrate posturing which is a posture seen in severely brain injured patients.

Nor is there any publicly available information about what the neurological examinations revealed while she was in a coma at Mount Sinai hospital.

We can only assume that Melissa was told that the brain damage was so severe that there was no likelihood of reversal. That would explain why life support measures would be terminated.

To answer the question raised in the headline...

If Melissa Rivers is unable to show that her mom Joan Rivers had any conscious level of pain and suffering, will that destroy her wrongful death lawsuit?

The answer is likely no, and here's why...

It's because there would still be a very significant claim for lost earnings. Joan, although 81 years old, was still earning a good living and had obligations for future shows and employment. That will likely be the biggest part of any wrongful death lawsuit that Melissa brings.

But, keep in mind that even if Joan was earning many millions of dollars and was expected to continue earning that type of money into the near future, when Melissa sues the endoscopy center, the gastroenterologist who performed the endoscopy, the ear, nose and throat doctor and the anesthesiologist, each one of them likely has a limited medical malpractice insurance policy.

Typically, every doctor in New York is required to carry malpractice insurance of $1.3 million per occurrence.

There are instances where the professional corporation that they work under (or the group they work with) carries an excess insurance policy.

The maximum amount that Melissa can expect to obtain will be limited by the total available medical malpractice insurance carried by the doctors and the endoscopy facility.

What happens though if Melissa has a valid case and opts not to settle but to take her case to trial?

If a jury decides to compensate Melissa in an amount that far exceeds what is available in malpractice insurance, what happens then?

There are a number of options...

First, the defense will ask the trial judge to set aside the verdict as being against the weight of the evidence. Regardless of whether the judge agrees or disagrees, the defense will likely appeal the jury verdict.

Then, on appeal, many different options are available:

  • The appellate court could agree that the jury was correct and the verdict will stand.
  • The appellate court could determine that the verdict was high and on their own, reduce it.
  • The higher court could determine that the verdict was too low and increase it.
  • The court could decide that there was no possible way the jury could have reached such a verdict and throw the verdict out and direct a new trial to take place.
  • The court could decide that Melissa and her attorneys failed to prove their case and dismiss the case without obtaining any compensation.

If the appellate court decides to increase or decrease the award, it is usually done on one condition.

That the parties agree to the amount now set by the higher court. If one or both parties do NOT agree to the new and different verdict amount, then the court tells all parties to try the case over again. Let a new jury listen to the testimony and evidence and come to a new conclusion about the amount of compensation the surviving family should receive.

What happens if there's a settlement at some point during the lawsuit process? Will that settlement amount be made public?

In most medical malpractice cases in New York, the defense attorneys and their physician clients don't like to publicize their settlements. They don't like telling the world about money that they have paid out because they were careless and caused harm.

There's also another very important, but rarely talked about reason why the defense and their clients don't like to publicly disclose medical malpractice settlement.

The reason is that they don't want other attorneys in New York to know what they paid for a particular injury.

Why not?

Because it then sets the bar for what that insurance company is now willing to pay for a particular injury. Now, when another attorney has a similar case with a similar injury, that attorney will argue that not only should his client receive the amount that was paid out in that other case they settled, but that his client's particular injuries are worse than the other case and his client should actually receive more in compensation.

The defense will often require the litigants to embrace and agree to a gag order preventing the surviving family members and their attorney not to disclose the terms of any settlement.

To learn more about gag orders here in NY, I invite you to watch the video below...


Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer