McDougald v. Garber

73 N.Y.2d 246, 538 N.Y.S.2d 937, 536 N.E.2d 372 (1989)



Nonpecuniary damages stand on less certain ground than an award for pecuniary damages. An economic loss can be compensated in kind by an economic gain; but recovery for noneconomic losses such as pain and suffering and loss of enjoyment of life rests on the legal fiction that money damages can compensate for a victim's injury. The court accepts this fiction, knowing that although money will neither ease the pain nor restore the victim's abilities, this device is as close as the law can come in its effort to right the wrong. The court has no hope of evaluating what has been lost, but a monetary award may provide a measure of solace for the condition created. 


A patient underwent surgery for a Caesarean section and tubal ligation. During the surgery, the patient suffered severe brain damage as a result of oxygen deprivation, leaving the her comatose. The patients parents sued the doctor and damages were awarded. On appeal, the district courts decision was affirmed. The case was elevated on appeal to the Court of Appeals of New York.


Was the the eligibility of an award of nonpecuniary damages proper?




The Court modified the award and granted a new trial on nonpecuniary damages on the basis that the trial court had erred in its jury instructions. The court found that a comatose patient, without some degree of cognitive awareness, could not recover for loss of enjoyment of life, and that in determining damages, loss of enjoyment should not have been considered separately from pain and suffering.

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