She just had hip surgery, and was still anesthetized. But when a safety strap was removed, Catherine O'Donnell somehow slipped off the table and slammed her head on to the floor fracturing her skull. A week later, the 86-year-old woman was dead despite a second operation that removed part of her skull to relieve pressure from the bleeding. (Boston Globe). Her family has now brought a wrongful death suit in Massachusetts.

What is interesting to note, from the legal end, is that if such an instance happened here in New York the family would likely have a hard time finding an attorney to handle it. This is exactly the type of avoidable accident that doctors and hospitals mostly enjoy immunity for. Here's why:

A lawsuit such as this has just a few essential elements of damages. Conscious pain and suffering and pecuniary loss (such as wages) are usually the major ones. Assuming the 86 year old wasn't working, however, her survivors likely has little pecuniary loss unless there are some types of pensions or similar revenue. And as to conscious pain and suffering, there is zero if she was never aware of what happened to her. In New York, there must be some level of awareness of the pain and disability. There may be a claim for loss of parental guidance, but the children would all be adults and the claim minimized due to that (relative to such a claim for an infant). There may also be a spousal claim if her husband survived her (not noted in the story.)

That leaves just grief for the surviving family. But unlike 42 other states, grief for surviving families is not compensable in New York in accordance with a law passed in 1847. ( See: The September 11th Lawsuits And The Problem Of Compensable Grief in NY) So the family is stuck, basically screaming at the wind for what happened, with no outlet for their grief.

People often make the assumption that lawsuits are "all about the money." Sometimes yes, but often not. With the loss of a family member, a family is often looking for answers and accountability. The courtroom, on an emotional level, often substitutes for the vigilantism that might occur based on anger.

While I had written just last week about my own handling of a woman with a ruptured brain aneurysm that fell off an angiogram table (see: Straying from Your Field of Practice), that woman had survived and was in massive distress. But wrongful death claims for the elderly (or even more sadly, for a child) often enjoy a de facto immunity here in New York.

(hat tip: Kevin MD)

Labels: Wrongful Death

The New York judge scheduled to hear the 41 lawsuits remaining from the September 11 attack says the families should settle.

Family members are reported to be fuming, according to this New York Post report, at Southern District Court Judge Alvin Hellerstein who said "money is the universal lubricant." At a recent hearing he said that:

"Each of us has a choice: Either to never forget that pain and have it ever present in our lives, or to fashion a life beyond the pain...Somehow, we need to get past Sept. 11, 2001, as a country and individually."

After a story about the trials appeared on the front page of the New York Times last week I wrote about the problem many of the families face in The September 11th Lawsuits And The Problem Of Compensable Grief in NY.

The litigating families had refused to participate in the September 11 Victim Compensation Fund due to low awards for those who were not working (such as children, retirees, those with disabilities).

It seems likely that the demand for accountability will, for some, supersede any desire to move on.

(Eric Turkewitz is a personal injury attorney in New York)

Labels: Personal Injury, Wrongful Death

As the New York Times reports today, 41 lawsuits are heading for trial this fall resulting from the September 11th attacks. These trials are for those that opted out of the September 11 Victim Compensation Fund -- usually because the amounts offered to a certain class of survivors were so low, and no doubt because the wounds were too raw for many to "put a number" on the loss of a loved one so quickly.

Here is the problem in a nutshell: The economic losses of the victims were evaluated with a schedule dependant on earnings that resulted in an average award of $2M. But the non-economic loss was limited to a flat $250,000, plus $100,000 to surviving spouses and children, regardless of whether death came instantly and without warning based on a direct hit by an aircraft, or whether a victim was on board a flight for 45 minutes in fear, or stranded on a high floor of a tower before it collapsed. (The feeling at the time was that this was too difficult a task for 3,000 people, many of whose stories would never come out.)

So those who lost family members who were not earning any money, children, retirees, etc., felt they were treated unfairly and could not, or would not, simply take a small sum without exploring the accountability of numerous entities, such as the airlines, Boeing or security companies that were supposed to be screening passengers. Here is one example of some of the thinking:

The plaintiffs are people like Mike Low, whose 28-year-old daughter, Sara, was a flight attendant on American Airlines Flight 11, the first plane to crash into the World Trade Center. For Mr. Low, it is strange for the airlines to deny that they could have anticipated the attacks, because, he says, his daughter was offered antiterrorist insurance as one of her fringe benefits, and took it.

Now here is the "problem" from the subject heading: Under New York law, grief of the surviving family members is not compensable. Unlike the vast majority of other states, New York remains in the dark ages when it comes to this subject. So a child that has been lost is viewed through the eyes of the law based solely on their earnings (none) and their suffering. But not the grief of the parents or siblings. So while some will always scream "It's just about the money," the reality is that for many it is mostly about raw emotion. Like this:

The Cottoms' lawyers would not say how much Asia might have received from the fund. Mrs. Cottom said she believed they would have received little more than the minimum $250,000 -- an amount she found "insulting."

She lost a daughter, she said, who had her first menstrual period just before the fatal flight, a school trip to Los Angeles. "I took her to Wal-Mart to buy sanitary napkins," Mrs. Cottom said. "So she was growing up one day and the next day she's gone."

Her decision to reject the fund was not hard, she said. "To me, it just smelled of dishonesty. How do you justify, O.K., an 11-year-old is worth $2, but because you're the pilot of that plane, that's worth $2 million?"

While the passage of time may have made it easier for some to settle this matter, it is clear that some will want a jury hold various entities accountable for their malfeasance. But while the actual amounts awarded may surpass that which was awarded by the Victim Compensation Fund if claimants can show what their lost family members went through, the awards will not be exceptionally high. And if they are, they will be reduced by the courts afterward.

In an unusual twist, damages will be tried before liability, in the hope I assume, that this will assist with settlement talks.

(Eric Turkewitz is a personal injury attorney in New York. He also represented two claimants before the Victim Compensation Fund)

Labels: Personal Injury, Wrongful Death

Anna Nicole Smith left behind a spider web of litigation that not only won't end soon, but could even get worse if her death is not from natural causes.

Over at FindLaw, Joanne Grossman writes a fairly thorough article entitled: The Litigation-Filled Life of Anna Nicole Smith, and the Legal Aftermath of Her Demise, but leaves out one big "what if."

In discussing the future, she leaves out the potential for a wrongful death action if her death is found to be caused by drug-related issues. Such an action could be brought by the surviving daughter against someone that facilitated her acquisition of the drugs (if that is what happened, it is speculative at the moment).

And making matters worse, that person might be one of the people currently vying for custody of the child. It's enough to make your head spin.

It is important to note that neither accidental or intentional overdose would preclude a wrongful death action (at least in New York). If one were to hand a suicidal person a gun, for example, the one that furnished the gun could be found negligent.

Since it has been reported that she may have had as many as 10 different medications in her room (and assuming that drugs were the cause), and also that she had a reported history of drug problems, the provider of those drugs could be found negligent for having supplied some of the medications.

Of course, with toxicology results not expected for some time, folks will have to wait. But there certainly looms the potential for a miserably complicated set of lawsuits to become more so.

Labels: Interesting Cases in the News, Wrongful Death