McDougald v. Garber

73 N.Y.2d 246, 536 N.E.2d 372 (1989)

Quick Summary

Emma McDougald (plaintiff) suffered brain damage resulting in a coma due to alleged malpractice during surgery by Garber and others (defendants). The jury awarded substantial damages for her losses, but the trial judge reduced this amount. The defendants challenged the award for nonpecuniary losses on appeal.

The Court of Appeals focused on whether a patient must be conscious to receive damages for ‘loss of enjoyment of life.’ Ultimately, they decided that such awareness is necessary and ordered a new trial on these specific damages because the initial instructions given to the jury were incorrect.

Facts of the Case

Emma McDougald (plaintiff) experienced a life-altering event during a surgical procedure in which she was subjected to a Cesarean section and tubal ligation. The surgery, conducted by Garber (defendant), with anesthesia services provided by Armengol and Kulkarni (defendants), led to a tragic outcome.

Due to oxygen deprivation during the operation, Emma McDougald suffered severe brain damage, resulting in a permanent comatose state. This devastating turn of events prompted Emma McDougald and her husband to initiate legal action against all involved medical professionals, asserting that their malpractice was the direct cause of her injuries.

The jury found in favor of the McDougalds and awarded significant damages for various losses, including conscious pain and suffering, loss of life’s pleasures and pursuits, and economic damages.

Procedural Posture and History

  1. The jury awarded Emma McDougald $9,650,102 in damages for various claims including conscious pain and suffering and loss of life’s pleasures.
  2. The trial judge reduced the award to $4,796,728, striking certain future care costs and combining the awards for pain and suffering and loss of life’s pleasures into one sum.
  3. The Appellate Division affirmed the reduced award.
  4. Defendants appealed the decision on the grounds related to nonpecuniary damages awarded for loss of enjoyment of life.

I.R.A.C. Format


Whether cognitive awareness is necessary for a plaintiff to recover damages for nonpecuniary losses, specifically for ‘loss of enjoyment of life,’ separate from pain and suffering.

Rule of Law

Nonpecuniary damages must serve a compensatory purpose and cannot be punitive unless the conduct was beyond mere negligence.

Reasoning and Analysis

The Court reasoned that nonpecuniary damages aim to compensate for physical and emotional consequences stemming from an injury. However, when an injured person is not cognitively aware of their loss, such as in a permanent comatose state, awarding damages for ‘loss of enjoyment of life’ does not serve a compensatory function as it has no meaning or utility for the individual.

The Court also expressed concern that separate awards for pain and suffering and for loss of enjoyment of life could lead to excessive, possibly punitive damages, which are not allowed in cases of mere negligence.

Furthermore, the Court declined to complicate the jury’s task by requiring them to discern varying degrees of cognition when assessing nonpecuniary damages. Instead, it proposed a simpler standard that there must be ‘some level of awareness’ for a plaintiff to recover such damages.

This approach ensures compensation is meaningful while avoiding speculative assessments based on uncertain cognitive science.


The Court modified the order of the Appellate Division by granting a new trial on the issue of nonpecuniary damages awarded to plaintiff Emma McDougald.

Dissenting Opinions

Judge TITONE dissented, arguing that loss of enjoyment of life is an objective loss and should be compensable regardless of the injured party’s cognitive awareness. He criticized the majority’s decision as arbitrary for denying recovery based on a criterion unrelated to compensatory goals and for failing to provide a logically consistent framework for assessing nonpecuniary damages.

Key Takeaways

  1. Cognitive awareness is required for recovery of nonpecuniary damages related to ‘loss of enjoyment of life.’
  2. The Court seeks to ensure nonpecuniary damages serve a compensatory function and are not punitive except in cases of egregious conduct.
  3. Nonpecuniary damage assessments should be simplified to avoid speculative judgments on cognitive science.

Relevant FAQs of this case

What is the role of cognitive awareness in assessing damages for nonpecuniary losses?

Cognitive awareness is pivotal in evaluating nonpecuniary damages because these damages are intended to compensate for subjective, non-monetary aspects tied to a plaintiff’s quality of life. Without cognitive awareness, the individual cannot experience or perceive loss, making the assessment of such damages conceptually challenging. Thus, courts generally require some level of consciousness to justify awards for nonpecuniary losses like loss of enjoyment of life.

  • For example: A person who is permanently unconscious may not be awarded damages for the diminished quality of life since they lack the awareness to experience this loss, as opposed to someone who, while severely disabled, remains conscious and aware of their circumstances.

How does compensatory vs. punitive damages distinction apply in nonpecuniary damage cases?

The distinction lies in the purpose of the award: compensatory damages aim to make the injured party ‘whole’ by providing monetary compensation for various losses, including emotional distress and loss of enjoyment of life. In contrast, punitive damages serve to punish egregious conduct and deter similar actions in the future. Nonpecuniary damages must be compensatory and cannot be punitive unless the defendant’s conduct was intentional or grossly negligent.

  • For example:A court awards compensatory damages to a plaintiff for the emotional trauma suffered due to an injury, refraining from punitive damages unless there’s clear evidence that the defendant’s behavior was malicious or recklessly disregarded safety.

In what scenarios might cognitive science findings influence damage assessments in personal injury cases?

Cognitive science can impact damage assessments when determining a plaintiff’s level of consciousness and their ability to experience pain or loss. The deeper understanding of how the brain processes these experiences can lead to more informed decisions on appropriate compensation levels.

  • For example:If advancements in cognitive science demonstrate that an individual in a minimally conscious state can still experience emotions and pain to some degree, this could substantiate claims for nonpecuniary damages where previously they might have been denied.


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