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Eyoma v. Falco

Decided: April 25, 1991.


On appeal from the Superior Court of New Jersey, Law Division, Bergen County.

Shebell, Havey and Skillman. The opinion of the court was delivered by Shebell, J.A.D.


In this case, among other issues, we are called upon to determine the elements of damages that may be awarded to the estate of a tortiously-injured party who, before death, existed in a comatose condition, unable to perceive pain or pleasure. This appeal arises out of the death of Francis S. Coker (decedent) who was admitted to Hackensack Medical Center on January 9, 1986 for removal of his gall bladder. The anesthesiologist assigned to him was defendant-respondent, Dr. William Brotherton; his recovery room nurse was defendant-appellant, Linda Falco, R.N. On the day of surgery, Dr. Brotherton brought decedent into the operating room at 11:30 a.m. Dr. Brotherton had previously participated in at least 150 gall bladder removal operations. After what Dr. Brotherton described as "a relatively short, simple procedure," the patient was transported to the recovery room at approximately 12:35 p.m.

Enroute to the recovery room, decedent attempted to lift his head and hands, to sit up, and to remove the airway tube that had been placed in his mouth. In the recovery room, decedent was initially breathing at a rate of twelve respirations per minute, and his blood pressure was stable; Nurse Falco, however, stated that decedent's respirations were shallow. Decedent responded to movement requests and was able to pull the oral airway from his mouth.

According to Dr. Brotherton, he finished removing decedent's airway tube and orally instructed a recovery room nurse, whose identity he could not recollect, "the patient got narcotics, please watch his respirations." In addition, Dr. Brotherton gave written

instructions "Post-op orders: Nasal cannula, three liters, .002 per minute in P.A.R. Discharge from P.A.R. when stable." Dr. Brotherton testified that based upon his observations, there was no need to administer any drug to reverse the anesthesia, though no monitoring tests to evaluate decedent's neuromuscular status were recorded by Dr. Brotherton. Apparently, after only a few minutes, Dr. Brotherton left the recovery room, but thereafter returned to check on the decedent.

Nurse Falco testified that after Dr. Brotherton left the recovery room she asked another nurse to watch the decedent. She then left the recovery room to care for another patient. Nurse Falco admitted she never got a verbal response from the other nurse, and that when she returned there was no one near decedent. She acknowledged that Dr. Brotherton told her to watch the decedent's breathing, but claimed she was not told that decedent had been given narcotics. She maintained that upon her return she checked the decedent and observed his respirations to be eight per minute.

Thereafter, Dr. Brotherton returned and inquired about the decedent's condition. Nurse Falco informed the doctor that the patient was fine. However, upon his personal observation, Dr. Brotherton realized that decedent had stopped breathing. Dr. Brotherton immediately attempted to resuscitate decedent; however, the patient's heart rate began to drop, and he went into cardiac arrest. Twenty minutes elapsed before decedent resumed breathing.

Decedent, because of oxygen deprivation, entered a comatose state and remained unconscious for over a year until his death on January 20, 1987. Decedent apparently suffered respiratory arrest before experiencing cardiac arrest. The respiratory arrest was due to respiratory depression resulting from the influence of anesthesia and a narcotic drug. During surgery, decedent was given Sufentanil, a narcotic drug with the capacity to enter the portion of the brain controlling respiration and

thereby shut down the respiratory system. Dr. Brotherton was aware of reports that Sufentanil can cause a patient to appear conscious and then later undergo a delayed reaction which terminates breathing.

Plaintiffs' medical expert testified that Dr. Brotherton deviated from the proper standard of care because he "should have stayed in the recovery room and checked on the patient for about at least ten minutes and then should have stayed longer if he wasn't satisfied the patient was doing well." According to this expert, with whom appellant Falco's expert concurred, the narcotic administered was "the most potent narcotic we have available to us today." Plaintiffs' expert explained that Dr. Brotherton should have taken greater care to monitor decedent once the breathing tube was removed because there was less stimulation of the patient without the tube. He also cited Dr. Brotherton's failure to communicate to Nurse Falco the specific drug given to the decedent, and the doctor's failure to take adequate measures to verify that he had sufficiently reversed the effects of a muscle relaxant given earlier, as departures from proper practice.

Nurse Falco's expert agreed that Dr. Brotherton deviated from accepted standards and stated:

I think Dr. Brotherton should have been aware that his patient might become renarcotized from that dose of Sufenta[nil] after the removal of the endotracheal tube should have stayed with this patient until he was absolutely sure that it was safe to do so and I believe he should have given some amount of Narcan to further ensure that the respiratory depressant effects of this dose were counteracted.

Falco's expert believed that Dr. Brotherton improperly delegated the duty to monitor the patient to recovery room personnel.

Two doctors testified on Dr. Brotherton's behalf. They asserted that it was the job of the recovery room nurse to monitor the patient and that the doctor had not deviated from medical standards in leaving the recovery room under the circumstances, nor had he deviated from any other requisite standards. Both experts concluded that the cause of the respiratory arrest was improper monitoring by the recovery room nurse

after Dr. Brotherton left the patient in her care. Plaintiffs' expert also testified that Nurse Falco deviated from requisite standards governing the conduct of a recovery room nurse by failing to ascertain the drugs administered to the decedent, leaving the patient without verifying that the patient would be monitored, and failing to recognize that the patient had stopped breathing.

The testimony of decedent's mother, Mary B. Eyoma, and the decedent's fiancee Gloria Harris, established the facts relevant to the issue of damages. Decedent was born on May 13, 1959, received a high school certificate in Nigeria, had a daughter by a woman in Nigeria, and in 1981 came to the United States. The daughter, born in September of 1981, was given the name Mary-Ann Coker, although the child's parents never married. The child lived with the decedent's mother in England and, according to the mother, the decedent sent money and gifts and remained in communication through several telephone calls a week. He last visited his daughter and mother in England three months before entering the hospital. His mother described a close, loving relationship between the decedent, herself, and Mary-Ann and referred to her son as her "backbone." She testified that the decedent sent money or things of value worth $600 per month in 1985: $400 to her, $200 to Mary-Ann. When decedent first slipped into a coma, his mother was with him every day for many weeks. She later visited every three months. When she was not visiting, she sent other family members.

Shortly after arriving in the United States in 1981, the decedent married. He was divorced in July 1985. A child of that marriage, Victoria, was born on March 24, 1984. Victoria lives with her mother in Brooklyn, New York. In 1985, decedent became engaged to marry Gloria Harris, and had planned to bring his daughter Mary-Ann to the United States to live with them after their marriage in August 1986. His fiancee testified that decedent had a "very good relationship" with Victoria. He visited her often to take her shopping and on

various outings. On February 20, 1985, the decedent was ordered to pay sixty-five dollars twice a month for Victoria's support.

According to his fiancee, decedent "was in great health, he -- we went to dances on the weekends, movies, he played tennis on Sundays when he could. He was in great health." He had many friends and enjoyed spending time with them when possible. He attended Ramapo College and then transferred to Passaic Community College, studying banking and finance. Decedent was a nurse's aid in various hospitals and was in the National Guard. He also worked as a part-time security guard for part of 1985. Decedent's income tax returns were admitted in evidence. His W-2 forms indicated that his earnings for 1985 amounted to $14,547.26, with $988.98 federal income tax withheld, $395.69 state tax withheld, and $1,025.50 social security tax withheld. His expenses appeared to have exceeded his reported income.

The trial judge charged the jury that, in addition to medical and funeral expenses, it could award survival damages to decedent's estate for decedent's loss of enjoyment of life during the time he was in a coma. Specifically, the court, in reviewing interrogatories, stated:

Now, the estate, and that's where that other blank is, when we talk about the deprivation of the enjoyment of the life of Francis Coker from the time that this arrest, pulmonary arrest, cardiac arrest came into being for that period in his lifetime when he was in the hospital in an unconscious state and you've heard the testimony of -- or from the mother who testified and the girl that he was engaged to testified and they told you what Francis did prior to his being hospitalized, his routine, what he enjoyed doing, what they did together, and you are to come up with a sum that is reasonable for this deprivation of enjoyment of life. [Emphasis added].

During the course of deliberations, the jury asked for further explanation of loss of enjoyment of life. The judge explained:

Now you'll recall when I spoke of it I said you can learn and recognize what Francis Coker enjoyed during life. That was testified to by Gloria Harris and by his mother. Now, the estate is entitled to those damages. Had he not been in a comatose state but not been able to enjoy life and he was a plaintiff whose damages would be awarded to him.

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