Decedent’s Statements Admissible Evidence of Pain and Suffering/Damages for Loss of Household Services Explained

The Second Department, in a case where medical malpractice was conceded, determined certain statements made by the decedent were admissible as excited utterances or present sense impressions.  In addition, the damages related to economic loss where decedent was not employed outside the home and devoted 20 hours per week to the care of his disabled daughter were analyzed:

Contrary to the hospital’s contentions, admissible evidence established the decedent’s conscious pain and suffering during the days prior to his death and on the day of his death. The decedent’s statements to his wife … complaining of pain, discomfort, hunger, difficulty breathing, and feeling that he was dying, were excited utterances or present sense impressions, or both, and therefore admissible as exceptions to the hearsay rule “for the truth of the matters they assert[ed]” … . The present sense impressions were sufficiently corroborated … by the testimony of the decedent’s wife regarding the decedent’s appearance when she visited him, as well as the testimony of the plaintiffs’ medical experts based on the hospital records. * * *

We agree with the hospital that the plaintiffs failed to establish the decedent’s lost earnings, past or future. However, “[i]n 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 [he or she] provided, as well as the compensable losses of a personal nature, such as loss of guidance” … .

“[T]he standard by which to measure the value of past and future loss of household services is the cost of replacing the decedent’s services” … . Hyung Kee Lee v New York Hosp Queens, 2014 NY Slip Op 04171, 2nd Dept 6-11-14