Judge ups settlement award in Buffalo VA Medical Center case.
U.S. District Judge William M. Skretny has made a revised determination in his issuance of an award in a malpractice case against the VA Medical Center in Buffalo, doubling the original amount to almost $4 million. In his most recent ruling, Skretny calculated the award for pain and suffering, counting every day of the four months that Howard Southard, a U.S. Army veteran, spent in intensive care before dying.
Wilma Coolidge sought justice for her brother’s death, and in summer 2009, was awarded $2.1 million, which accounted for only 58 days of the 118 he was there. The family objected and asked for a new trial or amended judgment.
Skretny said he “originally calculated the conscious pain and suffering award based on the number of days Southard exhibited pain or discomfort, as noted in his medical charts, and when he was agitated or undergoing surgical procedures under anesthesia.” He also “excluded days when the medical record indicated he was alert and did not indicate being in pain.”
Coolidge said Skretny’s initial decision “did not reflect that her brother was unable to eat or drink on his own for the entire hospitalization and did not consider Southard’s pain due to bedsores for the last two months of his life.” She also cited his mental distress as he was “forced to endure while he remained a prisoner in his own body,” and added he was “in absolute mental agony throughout every moment of his 118 days of consciousness, regardless of whether or not he was experiencing physical pain.”
In his decision, Skretny responded, “Reasons exist for this court to re-examine its findings about the duration of Mr. Southard’s pain and suffering. Substantial justice requires that plaintiff receive a full recovery for her reasonable damages for Mr. Southard’s pain and suffering to avoid manifest injustice. [Coolidge] is correct that Mr. Southard suffered during the 60 days he was noted as being alert and not in pain in the medication record and during his final days in palliative care.”
Assistant U.S. Attorney Mary K. Roach, in a March 4 written submission to the court, said the judge “properly declined to award pain and suffering damages for the 2009 periods including April 1 to April 24 and July 23 to July 27 because Southard was not conscious.”
However, Anne B. Rimmler, the family’s attorney, said, “I just really appreciate the fact that the judge would take the time and make the effort to make sure that justice was done.” She added, “He never was able to get out of bed. He never was able to speak or eat or drink. He was largely in isolation. It was a really horrible existence. Clearly, he went in for a couple days stay at most and ended up being confined to his bed. He lost over 100 pounds. He withered away to nothing…And what happened, a lot of times, when they came in to talk to him and asked him to rate his pain, he was sleeping, or he was out of it.” This, she argued, accounts for decreased mental and physical activity.