Hedonic Damages

My father went into the hospital because of a fall in his house. He suffered a broken hip and required surgery. Unfortunately, he never recovered from surgery. He remained comatose for a month until he passed away. I believe that the hospital killed him because he was perfectly healthy before his surgery. Can I sue the hospital?

Malpractice cases are notoriously complex and each must be evaluated individually. Thus, rather than focus upon issues of hospital liability, your question also raises the issue of hedonic damages in a personal injury case. Hedonic literally means related to feeling or pleasure. In the context of a personal injury case, it refers to the claim for “loss of enjoyment or life.”

Cognitive Awareness

Loss of enjoyment of life is an element of personal injury, or the claim for pain and suffering. Thus, a jury can consider the effect of the injury on a person to prevent him from leading a normal life. However, at the same time, in order for a person to claim loss of enjoyment, the person must have “some cognitive awareness” of the loss of enjoyment. McDougald v Garber, 73 NY2d 246 (1989).

In your father’s case, you said he tragically never recovered from surgery. Instead, he lingered in a coma for a month until he passed away. Thus, you probably do not have a claim for personal injury since you said that your father never regained consciousness after his surgery. But you may have a claim for wrongful death.

Cognitive Awareness in Other Cases

The same would also be true if your father was injured in a car accident and never regained consciousness. Blunt v Zinni, 32 AD2d 882, 302 NYS2d 504 (4th Dept 1969), affd, 27 NY2d 521, 312 NYS2d 996 (1970). In New York, a person must exhibit “cognitive awareness” to prove a personal injury claim.

There are a number of reported cases that deal specifically with this issue well beyond the scope of this post. Those cases feature experts testifying about the ability of a comatose individual to perceive his surroundings. Those cases have experts testify about the Glasgow comatose scale so that the injured party can argue they have a loss of enjoyment. The point of the experts’ testimony is not to claim that the greater degree of response of a person has in a coma, the more loss of enjoyment they can experience. The real point is that the injured party must demonstrate a minimum amount of perception so that they can experience a loss of enjoyment of life and be compensated for damages.

New Jersey Law

Finally, there are other jurisdictions that do recognize a loss of enjoyment of life in a comatose patient. For example, in New Jersey, there are cases which hold the fact that person is comatose and cannot enjoy their life at all, is a basis for a jury to award a claim for loss of enjoyment of life. The mere fact a person is alive and cannot enjoy life is a basis to award damages. Eyoma v Falco, 247 NJ Super 435 (App Div 1991).