News: A patient died in a New York VA hospital 118 days after an aortic aneurysm repair procedure resulted in occlusion of the patient’s renal arteries. The patient’s estate filed a wrongful death suit alleging the surgeons’ negligence was the direct and proximate cause of the patient’s death death. Plaintiffs were awarded $2.1 million, reflecting 58 days of pain and suffering the patient had affirmed.

The award was later modified to $3.9 million to reflect a more expansive view of pain and suffering, based on a calculation of the days in which the patient’s circumstances could have reasonably indicated pain and suffering, despite the patient not indicating pain on those days. In effect, the court found the patient’s inability to eat solid food and constant need of a feeding tube constituted pain and suffering, increasing the number of days the patient suffered from 58 to 118. A major factor in this analysis was the plaintiff’s expert, who testified that pain and suffering can exist even when a patient does not affirmatively register it, but nevertheless experiences pain based on conditions the patient was subjected to because of negligence, such as inability to survive without constant use of a feeding tube.

Background: A New York patient died in a Veterans Affairs (VA) hospital after an endovascular abdominal aortic aneurysm repair (EVAR) surgery, which resulted in the occlusion of the patient’s renal arteries. Upon filing a wrongful death suit, the executor of the patient’s estate alleged the occlusion was a result of operator negligence in the procedure, since the patient’s kidneys were functioning before the EVAR. The suit alleged the doctors’ failure to perform a confirming angiogram deviated from the standard of care in the community, such that the patient’s death could not have occurred in the absence of negligence by one or more of the three physicians present during the surgery. A January 2018 bench trial established the doctors believed the patient was an excellent candidate for the closed procedure due to the anatomy of his aorta. They decided to use a Cook Zenith Flex AAA endovascular stent graft to perform the EVAR. However, the graft covered both of the patient’s renal arteries, occluding blood flow. All three surgeons unsuccessfully attempted to re-establish blood flow to the kidneys. The patient required kidney dialysis and remained hospitalized in the VA until his death in July 2009, four months after the surgery.

In June 2020, the trial court ruled in the plaintiff’s favor, awarding $2.1 million to the patient’s estate, including $1.7 million for the patient’s conscious pain and suffering, and $366,000 for his fear of impending death. This judgment originally excluded calculation of damages for days when the patient was recorded as alert and not indicating pain, and time the patient spent in palliative care. Although the patient spent 118 days in the VA hospital, the damages award was based only on 58 of those days, at a rate of $30,000 per day. Believing these amounts to be too low and that both categories of excluded days should be counted toward the ultimate damages calculation, the patient’s estate moved for a retrial or, alternatively, an adjustment of the verdict.

On March 31, 2021, a New York federal judge granted the estate’s motion to adjust the verdict, accepting the estate’s argument the patient endured pain and suffering for all 118 days he spent in the VA, rather than the 58 days the court originally counted. Despite the government’s protests, the judge reasoned that although the patient did not outwardly express pain, other aspects of the patient’s experience constituted proof of pain and suffering, such as his inability to eat solid food, thus requiring a feeding tube at all times, and the mental anguish of remaining a prisoner of his own body. The judge kept the same rate of damages ($30,000 per day), increasing the award for pain and suffering to $3.5 million. The damages to compensate for the patient’s fear of impending death remained the same ($366,000) after the judge agreed with the court’s original calculation of the earliest date the patient showed he was aware and anxious of his impending death. The total damages calculation after the estate’s appeal amount to just over $3.9 million. The judge denied the bid for a new trial, noting the patient’s estate was not introducing new evidence or testimony.

In making these determinations, the court relied heavily on expert testimony provided by the patient’s estate that the attending vascular surgeon was responsible for ensuring the C-arm and operating table are secured, and the failure to do so was a contributing factor to the outcome of the surgery. The estate’s expert testified the stent graft was installed a few millimeters too high, covering the renal arteries and blocking blood flow, irreparably damaging the kidneys. The court disagreed with the government’s argument the expert’s testimony was flawed and could not identify with scientific certainty whether the occlusion occurred because of operator negligence or some other unknowable cause. They noted an expert who finds myriad causes but is unwilling to opine as to which might be the cause does not preclude the court from finding a cause if the evidence supports that result.

Although the government noted it was considering appealing this issue, it has not filed an appeal at the time of this article. As such, this newer, more expansive calculation of damages based on the patient’s experience while hospitalized — rather than affirmative indications of pain and suffering — stands as valid law.

What this means to you: While it always is necessary to consult with local counsel (as damages analyses can vary by state), this case suggests an expansion of the traditional concept of how courts and experts calculate pain and suffering. The court used a rate of $30,000 per day as compensation for the deceased patient’s suffering throughout the proceedings, but agreed with the plaintiff’s expert’s opinion the patient was suffering even when he did not affirmatively indicate pain, in large part due to the feeding tube the patient was forced to use for all 118 days he was hospitalized before his death. The court disagreed with the government’s contention that damages should be calculated only on those days the patient affirmatively indicated pain.

This case opens the door to a more speculative calculation of pain and suffering damages, based not just on patient feedback, but also on a more holistic view of the circumstances a patient experiences while hospitalized — such as the constant need for a feeding tube. Although this case centered on the feeding tube, this type of damages calculation can be applied to any number of circumstantial factors, giving plaintiff’s experts more leeway in calculating the number of days subject to the court’s rate of damages.

Pain and the suffering it causes is subjective and does not require the objective data of a pulse rate or blood pressure to be factual. A patient’s pain is whatever it is to the patient, not the observer. When a patient is asked to rate his or her pain on a scale from 1-10, the response, regardless of outward appearance or level of activity, is the patient’s level of pain. It is not the duty of the healthcare provider to reinterpret pain to a level that fits some other scenario. Pain, suffering, discomfort, aggravation, stress, distress, depression, and frustration all are feelings an individual experiences at a level that only can be expressed by that individual.


  1. Decided March 31, 2021, in the U.S. District Court for the Western District of New York, Case Number 1: 10-cv-00363.