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March 18, 1986

ANNA RUFINO, as Guardian ad Litem of NEIL RUFINO, and ANNA RUFINO, Plaintiffs,

The opinion of the court was delivered by: STEWART



Anna Rufino as Guardian ad Litem of Neil Rufino and on her own behalf has brought suit under the Federal Tort Claims Act against the United States of America, claiming damages as a result of the defendant's negligence On April 12, 1981, Neil Rufino was a patient at the Veterans Administration ("V.A.") Hospital in the Bronx and, following heart surgery, he sustained injuries which rendered him comatose. The defendant has conceded liability. Trial was held solely on the issue of damages

 Rufino, was then 56 years of age, was operated on for myocardial infarction on April 12 and was apparently successfully recovering from surgery when, on April 14, as a result of the negligence claimed by plaintiff, he developed hypoxic encephalopathy and suffered massive brain damage, as a result of which he fell into a coma. He has remained a patient at the hospital since that tie

 Rufino retired prior to 1981. He receives Veteran's disability benefits totalling $ 3,302 per month, of which $ 1,928 are additional benefits due to the incident which occurred on April 14, 1981. He will receive these benefits for the rest of his life. Having been previously designated as an 80% service-connected disabled veteran, he is eligible for continued care at any V.A. hospital, for total treatment for the rest of his life at any private nursing home with which the V.A. has a contract, and to have any surgical and medical procedure performed by other doctors so long as such procedure is approved by a supervising V.A. physician. Rufino's family have, however, chosen to continue to have him remain at the Bronx V.A. hospital for the five years since the incident occurred. Since he con continue to receive this free medical care for his lifetime and plaintiff has indicated no dissatisfaction with it, we decline to grant any claim for past or future medical expense.

 Prior to the operation on April 12, 1981, plaintiff suffered from a history of hypertension, diabetes and obesity. The treating doctors and expert medical witnesses who testified agreed that Rufino has suffered extremely severe brain damage from which he will never recover. The only difference of opinion of any substance is the extent to which his condition has improved, if at all. Plaintiff's experts, relying on brief personal observations, on observations by members of Rufino's family and of a V.A. hospital nurse, and on hospital records, believe that Rufino's present condition may be described as a partially locked-in syndrome. In their view, he occasionally responds to stimulation in an understanding way and, although he has no means of communication, he is able to sense and understand voices and other means of communication attempted by members of his family. He can in their view experience pain, as indicated by his reaction, for example, when a pin is stuck in his foot. They believe that there is reason to believe that his condition has improved, although only to a limited extent. Significant improvement in the future, moreover, does not seem likely. He will continue to he a helpless, im mobile patient for his remaining life.

 One of defendant's witnesses, a V.A. hospital physician who sees Rufino frequently as port of his medical practice, does not believe that there has been any significant improvement. Although he observes that Rufino responds to some stimuli, he finds no significant cognition or purposefulness in these responses They are, he believes, only spontaneous reactions, without any accompanying understanding.

 Defendant's expert also disagrees with plaintiff's experts He has personally examined Rufino and has reviewed the same material available to plaintiff's experts He does not believe that Rufino in fact experiences or senses pain when stuck with a pin; rather, his reaction is only spontaneous and not purposeful. He also disagrees with the view that Rufino has a partially locked-in syndrome; in his view, it is not partial but total. He finds Rufino's life expectancy to be poor and no reason to believe there will be any improvement in his condition

 The medical experts, as we have attempted to indicate above, agree generally that Rufino's basic disability will not change;* to the extent they disagree, it is on the question whether he has begun to show some limited and occasional, but infrequent awareness of stimuli and other actions taken principally by members of his family in his presence. We are inclined to accept as more reliable the testimony of the defendant's witnesses, one of whom has had frequent opportunities over the past several years to observe Ruffino. We accept, however, the testimony of plaintiffs' experts to the extent that they have found some evidence of very limited conscious pain and suffering. Accordingly, we find that under the all the circumstances, plaintiff is entitled to recovery on the claims for past and future pain and suffering and for loss of consortium. (Plaintiff makes no claim for past or future earnings since Rufino had retired at the time of the injury.)

 Plaintiff is awarded $ 75,000 for pain and suffering (past and future) and $ 75,000 for loss of consortium (past and future). In making these awards, we have taken into account the $ 71,114.67 which plaintiff has received as of December 1, 1985, as additional benefits from the V.A. because of the incident on April 14, 1981. We have also taken into account his relatively short life expectancy. Plaintiff may submit a judgment.


 Dated: New York, New York

 March 18, 1986


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