New York Appellate Court Reduces $3,825,085.38 Medical Malpractice Wrongful Death Failure To Diagnose Cancer Verdict By $650,000

The Supreme Court of the State of New York Appellate Division, Second Judicial Department (“New York Appellate Court”), in its Decision & Order dated July 28, 2021, reduced the jury’s verdict in the amount of $3,825,085.38 by $650,000, stating: “Damages in a wrongful death action are limited to pecuniary injuries suffered by the distributees of the decedent’s estate … In the case of a decedent who was not a wage earner, ‘pecuniary injuries’ may be calculated, in part, from the increased expenditures required to continue the services she provided, as well as the compensable losses of a personal nature, such as loss of guidance … Here, the plaintiff presented sufficient evidence of pecuniary injuries sustained by Natasha and Sheik due to their mother’s death …  However, we find that the awards for past pecuniary loss deviate materially from what would be reasonable compensation.”

The Underlying Facts

On July 28, 2015, Hamidan Mahamad (“decedent”) died from ovarian cancer. She was survived by two adult children, Natasha Zamena Bacchus-Sirju (“Natasha”), and Sheik Bacchus (“Sheik”). Natasha, as executor of the decedent’s estate, filed a New York medical malpractice wrongful death action to recover damages for an alleged delay in the diagnosis of the decedent’s ovarian cancer.

Following a jury trial, the jury found that the defendant Herbert J. Mosberg departed from good and accepted medical practice by failing to inform the decedent that an ultrasound revealed the presence of fluid in the cul-de-sac, a portion of the pelvis behind the uterus, by failing to order a CA 125 blood test, and by failing to refer the decedent to a gynecologic oncologist. The jury also found that such departures were a substantial factor in diminishing the decedent’s chance for a better outcome. The jury awarded the plaintiff the principal sums of $2,000,000 for pain and suffering incurred by the decedent prior to her death, $1,000,000 for past pecuniary loss sustained by Natasha and Sheik ($500,000 each), from the date of the decedent’s death to the date of the verdict, and $50,000 for future pecuniary loss for Natasha and Sheik ($25,000 each), intended to provide compensation for a period of five years.

The New York Appellate Court held: “the matter is remitted to the Supreme Court, Queens County, for a new trial on the issue of damages for past pecuniary loss, unless within 30 days after service upon the plaintiff of a copy of this decision and order, with notice of entry, the plaintiff serves and files in the office of the Clerk of the Supreme Court, Queens County, a written stipulation consenting to reduce the amount of damages for past pecuniary loss sustained by Natasha Zamena Bacchus-Sirju from the principal sum of $500,000 to the principal sum of $250,000 and the amount of damages for past pecuniary loss sustained by Sheik Bacchus from the principal sum of $500,000 to the principal sum of $100,000, and to the entry of an appropriate amended judgment accordingly; in the event the plaintiff so stipulates, then the judgment, as so reduced and amended, is affirmed, with costs to the plaintiff.”

Source Bacchus-Sirju v Hollis Women’s Center, 2021 NY Slip Op 04538.

If you or a loved one suffered harm as a result of medical negligence involving the diagnosis of cancer in New York or in another U.S. state, you should promptly find a New York medical malpractice lawyer, or a medical malpractice lawyer in your state, who may investigate your cancer misdiagnosis malpractice claim for you and represent you or your loved one in a cancer medical malpractice case, if appropriate.

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This entry was posted on Friday, August 27th, 2021 at 5:27 am. Both comments and pings are currently closed.

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