Professional Negligence Law Reporter

A New York appellate court held that a medical malpractice plaintiff’s award for pre-impact terror damages was improper.

Here, a patient suffered a heart attack while at the Westchester Medical Center and was treated over the next three years for congestive heart failure. After his death, suit against the medical center and others alleged medical malpractice for the defendants’ failure to timely diagnose and treat the heart attack. A jury awarded more than $3.8 million in damages.

Modifying in part, the appellate court found that the verdict was not contrary to the weight of the evidence. Nevertheless, the court said, the jury’s awards for pain and suffering and pre-impact terror overlap chronologically in that they both cover the time period between the heart attack and the moment the patient believed he was going to die and his actual death. Citing case law, the court found that fear of death may be considered when assessing pain and suffering and loss of enjoyment of life resulting from malpractice. Pre-impact terror delineated as emotional pain and suffering, however, is a separate damages item and is inappropriate where the impact was the patient’s heart attack, the court found.

Citation: Molina v. Goldberg, 2024 WL 3434253 (N.Y. App. Div. July 17, 2024).