Child Deaths: In Some States Wrongdoers Get Off Easy, By Robert Wiener

Child Deaths: In Some States Wrongdoers Get Off Easy



by Robert Wiener

lexisONEsm

Thousands of children die accidental deaths each year, and where those deaths occur can bear significantly on the outcome of civil actions filed on their behalf.

At the age of six, Michael Colombini was already facing a potentially life-threatening brain tumor when he began undergoing an MRI in August at Westchester Medical Center, a hospital near his home in Croton-on-Hudson, N.Y.

Someone had inadvertently left a metal oxygen tank in the room where he was about to be examined. When the Magnetic Resonance Imaging device was switched on, its power pulled the tank into the center of the machine.

The tank struck Michael in the head. He died two days later. But Michael's parents cannot be compensated for the emotional pain and suffering they have endured.

"You can't sue for loss of love and affection," said Harvey Wachsman, who practices as both a neurosurgeon and a medical malpractice attorney. His office, and the 25-member New York firm where he is of counsel, Queller Fisher, represent the Colombini family. "We can't even collect damages for the child's anticipated earnings. That would be speculation."

"New York has a woefully inadequate statute regarding wrongful death," said Martin Brennan, a spokesman for the state Trial Lawyers Association. "It is one of a few states that does not allow compensation for emotional loss - it's solely motivated by economic decisions."

Read the New York law.

The other jurisdictions which prohibit damages for pain and suffering or loss of consortium in wrongful death cases are: Alabama, Delaware, South Dakota and the District of Columbia.

But 28 other states allow damages for loss of consortium or loss of companionship in their laws.

"A child, a woman, a disabled person or an elderly person is either under-valued or not valued at all. If your victim who died in an MRI was a millionaire, the family might be entitled to a big settlement," Brennan told lexisONE. "But if it was someone without a high earning capacity, like a child, there would not be a high damage award. And that's not equal protection under the law."



"What idiocy," said Ruth Bernstein, a civil litigator in New York who is the immediate past chairperson of ATLA's women's caucus. Bernstein handles negligence cases as a major part of her solo practice.

"Our laws date back to the 1840's, when women and children were considered chattel. Their lives aren't considered by law to be worth much. The effect is that is cheaper for a hospital or a doctor to kill a child rather than maim one. If you maim one it could cost you millions."

It may be "impossible to collect for loss, grief and emotional damage in New York State" said medical malpractice lawyer Robert Sullivan, one of 35 attorneys in a Mineola, Long Island firm.

"But," he said, "any lawyer would take this case. It is a monster. You could collect 200 to 250 thousand maximum for a wrongful death of a child, but in this MRI case it would go up to 400 thousand because of the publicity."

Edward Stolzenberg, president and CEO of the Westchester Medical Center, issued a statement saying the hospital "assumes full responsibility for the accident."

But Carin Grossman, director of communications at the hospital, told lexisONE there would be "no comment on any potential litigation or any possible discussions" with the Colombini family.

"The goal of the civil justice system is accountability," Bernstein said. The law should be amended to make the liable parties accountable."

The Political Battle

Every year since 1995, a Republican State Senator from Long Island, James Lack, and a Democratic Assemblywoman from Brooklyn, Helene Weinstein, have tried and failed to get the law changed.

But the bill has always remained in committee, caught between two powerful forces," said David Gruenberg, counsel for the New York State Senate Judiciary Committee.

"On one hand are the trial lawyers who want to increase the limits on statutes of limitations and damage awards. In the other side are the tortfeasors, the insurers, the hospitals and the municipalities, who want to restrict the tort system."

To Ellen Melchionni, vice president of the New York Insurance Association, there are strong reasons for her 75-member organization to "lobby extensively" against any changes in the law that would grant non-economic damages for a child's wrongful death.

"The pain and suffering of a child's death can't be measured," she said. "It basically depends upon the jury you get."

In a memorandum opposing the Weinstein-Lack proposal, Melchionni wrote:

"Emotional injuries such as sorrow and mental anguish are not conducive to having a monetary value placed on them. This language is an invitation to endless litigation. Witnesses expressing the greatest grief are more likely to receive larger awards."

"It's about sympathy," she said. "To put that in the hands of a jury when there's no way to quantify it is really unfair. There is no amount that could compensate me if it were my child."

"Maybe," she conceded, if there were a cap on such awards - say 250 thousand dollars - that may be something that has merit."

A chart prepared with the assistance of the Association of Trial Lawyers of America shows show how individual states handle damage caps for wrongful death awards

State-By-State Breakdown Of Wrongful Death Caps

"We value children more highly than they do in New York," said Arnold Schwartz, a Los Angeles torts attorney who is not troubled by California's limit of $250,000 on non-economic wrongful death awards.

The cap was instituted when the California legislature passed the Medical Injury Compensation Reform Act in 1975.

Schwartz told lexisONE that despite the legislation, he has found ways to maneuver around the cap.

But in Oakland, Calif., medical malpractice attorney Michael Kinane has faced problems coping with the cap. One of his cases involved the death of a 12-year-old hospitalized boy. A nurse misprogrammed an infusion pump, giving the boy ten times the medication he was supposed to receive. Kinane told lexisONE the child died ten days later after suffering a heart attack and a coma.

The hospital fought against paying his family the full $250,000 allowed by law. Its attorneys claimed there had been an alienation of affection between the boy and his father, who had spanked him with a belt two years before the accident. That fact forced Kinane to make an uncomfortable compromise

"I was embarrassed and still am, and crushed to recommend settlement at $225,000."

To Ed Van Dorn, who represents plaintiffs in personal injury cases in New Hampshire, that state's $50,000 limit on non-economic damage claims is "an atrocity. The law was passed in the 1980s when $50,000 had a lot more economic meaning than it does now."

Read the New Hampshire law

"It's almost better off if there were no damage awards at all," he told lexisONE. "When you say to a parent that their dead child's life was worth only $50,000 it's an insult... This is incomprehensible to a bereaved parent."

Copyright 2001lexisONE