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New York Judge raises award in Wrongful Death case

Posted by Scott M. Peterson | Apr 01, 2021

A somewhat unknown rule to non-attorneys is that in most cases, if a judge does not agree with a jury award, the judge has the right to modify the award as he or she deems appropriate.  The most common way for this to play out is where a jury awards a family, say, $2,000,000 in a case involving a hospital error that led to the death of a parent, but the judge believes the award should really be closer to $1,000,000 and reduces it accordingly.  While this does not happen frequently, it's also not considered rare.

What is less likely is that a court will increase the amount of money that is awarded to an individual or a family in a negligence or wrongful death case, finding that a jury did not award enough to a victim of negligence. 

That's exactly what a federal court judge in Buffalo, New York, did recently.

In this case, the family members of a deceased man brought a suit against a VA Hospital, alleging that the hospital botched an aortic aneurysm procedure, effectively "killing" the man's kidneys and causing him to suffer pain for more than one hundred days before passing.  

The case went to trial, after which the jury found in favor of the Estate, and awarded it $2.1 million.  

The Judge determined that the award was too low given the lengthy period of pain and suffering experienced by the deceased, and increased the award to $3.9 million.

In New York, one of the primary elements of damages in a case where someone dies is "conscious pain and suffering."  This is the period of time following the injury during which the individual is aware of and experiencing pain and suffering as a result of the injury.  In this case the period lasted nearly four  months, and the judge determined that it warranted a very significant award. 

Suffice it to say that the proof must have established that the deceased man suffered greatly, but it is encouraging to see courts take proactive action where appropriate.  

If you have questions about hospital errors or the death of a family member, contact us today.

About the Author

Scott M. Peterson

Scott M. Peterson is the founding partner of D'Orazio Peterson, having left a partnership at a large regional law firm to limit his practice and focus on helping people protect their families.

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