Court Finds Pain and Suffering Award Insufficient

By: Gerri L. Elder

A New Jersey state appeals court recently held that a $100,000 pain and suffering award in a medical malpractice personal injury case was too low because it amounted to only $8 per day for the rest of the plaintiff's life.

The New Jersey Law Journal reported that the Appellate Division sent the case back for a new trial on the pain and suffering award, calling the $100,000 award "grossly insufficient and a miscarriage of justice." The appeals court left the liability verdict and the $800,000 award for economic damages intact.

The case revolves around Maureen Walsh. Walsh began seeing doctors in 1995 for circulatory problems in her toes. By early 1998, she was in severe pain and met with vascular surgeon George Constantinopoulos. Constantinopoulos recommended an immediate arteriogram, but advised Walsh that another doctor would need to arrange it because it was not covered by her health insurance.

Fifteen days later, Walsh had the test and was informed that she would need surgery. During a bypass operation later, it was noted that an amputation might be necessary.

Walsh endured a total of seven surgeries; three were amputations after gangrene set in. First, Walsh's foot was amputated, and then part of her leg. Later in 1998, the gangrene advanced upward and most of her leg was amputated.

At the time of her surgeries, Walsh was 50 years old. According to federal government estimates, her life expectancy was an additional 32.5 years.

In 2007, the jury in Walsh's medical malpractice personal injury case reached a combined verdict of $900,000. This amount included the $100,000 award for pain and suffering that the courts have now found lacking.

One of the reasons that the award for pain and suffering may have seemed slight was that the jury found that Constantinopoulos was only 10 percent at fault for Walsh's pain and suffering. Walsh's personal injury lawyer argued that Constantinopoulos did not treat her condition as an emergency, although her condition was deteriorating rapidly.

Walsh's lawyer moved for additur, which means that he asked the trial judge to award additional damages in addition to the jury verdict. The Monmouth County Superior Court judge denied that motion, therefore an appeal was filed.

The argument for appeal was that the pain and suffering award was not proportional to the nature of Walsh's injury and its consequences, and therefore a new trial was warranted.

Three Appellate Division judges agreed and cited three other Appellate Division rulings in which compensatory damages of $50,000 were deemed insufficient. All three of these personal injury cases were sent back to the lower court for a new trial on liability and damages.

The appellate panel in the Walsh case also denied Constantinopoulos' cross-appeal of liability. The judges found that when Constantinopoulos examined Walsh, he had a duty of care with respect to the examination and any recommendations that resulted. They rejected Constantinopoulos' argument that he could not order the arteriogram because it was not covered by her health insurance.

Constantinopoulos also unsuccessfully argued that no doctor-patient relationship existed because he saw Walsh as a courtesy to a colleague.

Walsh's personal injury lawyer says that he has never seen a case in which only part of the damages award was reversed. He said that he explained the $100,000 award to the court in terms of $8 per day to illustrate just how inadequate the amount was.

The award for $800,000 in economic damages was primarily to cover a major contract that Walsh's printing business lost after her amputations impacted her ability to do the work. That award stands and will not be an issue at the new trial.

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