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Jury Awards $2.25M for Pain and Suffering in Malpractice Case. Raefski v. Hirsch, 2020 N.Y. Slip Op. 30970 (N.Y. Sup. Ct. 2020)

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Raefski v. Hirsch, 2020 N.Y. Slip Op. 30970 (N.Y. Sup. Ct. 2020) is a medical malpractice case that with allegations of failing to follow accepted medical practice and failing to get informed consent. Failing to follow accepted medical practice means a healthcare provider did not adhere to the standard procedures and protocols recognized by the medical community for treating a specific condition. This deviation can result in harm to the patient, as it suggests negligence or improper care. Informed consent not being properly obtained means that the patient was not adequately informed about the risks, benefits, and alternatives of a procedure or treatment. This lack of communication denies the patient the opportunity to make an informed decision about their care, which is a fundamental patient right.

Defendants sought various relief including setting aside the verdict and reducing damages in a medical malpractice case. Plaintiffs, Darren Raefski, and his deceased wife, Cheryl Raefski, alleged that Dr. Hirsch’s medical negligence resulted in Cheryl’s death.

Background Facts
In this medical malpractice action, plaintiffs allege that on December 5, 2011, Dr. Hirsch and co-defendant Dr. Joseph Raccuia deviated from accepted standards of medical practice during a procedure involving Cheryl Raefski’s colon. Instead of removing a remnant of a polyp as intended, the doctors performed a laparoscopic procedure that required a partial resection of her colon. This laparoscopic procedure was later converted to an open procedure and the remnant polyp was eventually removed.

Plaintiffs assert that during this procedure, a perforation occurred in Ms. Raefski’s bowel when an instrument using thermal heat came into contact with the serosa, the outermost layer of the jejunum (small bowel). This perforation allegedly caused a leak of bowel contents, leading to complications. Despite undergoing three additional surgeries to address these issues, Ms. Raefski developed sepsis, which ultimately resulted in her death 10 days later.

Additionally, plaintiffs claim that Dr. Hirsch failed to follow accepted medical practice by not ordering a CAT scan with contrast during Ms. Raefski’s post-operative period and that informed consent was not properly obtained.

Issue
Whether Dr. Hirsch’s actions deviated from the standard of care, leading to Cheryl Raefski’s death.

Holding
The court found that Dr. Hirsch’s actions did deviate from the standard of care, leading to Cheryl Raefski’s death.The court denied the motion to set aside the verdict. The court also reduced the damages awarded for pain and suffering.

Rationale
The evidence presented demonstrated that the failure to perform the polypectomy via colonoscopy and instead opting for a laparoscopic procedure that was converted to an open surgery, during which a bowel perforation occurred, contributed to the complications that led to Ms. Raefski’s sepsis and subsequent death. The court also noted that the lack of a post-operative CAT scan with contrast and the failure to obtain proper informed consent further supported the finding that Dr. Hirsch deviated from accepted medical practice.

The jury initially awarded a substantial amount in damages to the plaintiffs. The original award included $3 million for pain and suffering, $2 million for wrongful death, and $500,000 for loss of consortium, totaling $5.5 million.¬†However, upon review, the court determined that the original damages for pain and suffering were excessive compared to similar cases and legal standards. The court acknowledged the severity of Ms. Raefski’s experience but emphasized the need for consistency in damage awards. Consequently, the court decided to reduce the amount awarded for pain and suffering from $3 million to $1.5 million.

In addition to this reduction, the court also adjusted the wrongful death damages from $2 million to $1.25 million and the loss of consortium from $500,000 to $250,000. This brought the total revised award to $3 million. The court’s decision to revise the damages underscores its role in ensuring that awards are fair, reasonable, and in line with legal precedents while still providing adequate compensation for the plaintiffs’ losses.

Conclusion
If you or a loved one have been affected by medical malpractice, it is critical to seek legal advice. Contact an experienced New York medical malpractice lawyer at Stephen Bilkis & Associates to help ensure your rights are protected.

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