Once again, an appellate court in New York has enforced the long standing concept that in order to recover money damages for a decedent's pre-death pain and suffering in a negligence case there has to have been some level of cognitive awareness on the decedent's part. In Johnson v. Jacobowitz, handed down this week, the court upheld a trial judge's ruling refusing to allow a jury to consider the issue of damages in a medical malpractice wrongful death case. Dolores Johnson never awoke after surgery to remove a blood clot and she died five days later. The doctor was found liable but since there was no evidence that Ms. Johnson was aware of pain or that she suffered during those five days (as she never awoke from surgery) then there was no viable pain and suffering claim to submit to the jury.
The rationale for this result was stated in McDougald v. Garber, (73 N.Y.2d 246) decided in 1989 by New York's highest court: pain and suffering recoveries rest on the legal fiction that money damages can compensate for a victim's injury; however, there is no compensatory purpose to be served when the victim is unaware of his injuries.