This suit for wrongful death, brought under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680, charges that William Kwasny’s death was due to negligence by doctors employed at a hospital owned by the Veterans Administration. The district judge found negligence аnd awarded damages of $485,215. The government appeals, complaining about both the finding of liability and the size of the damage award, which, the government argues, should not exceed $100,000.
A veteran of World War II, Kwasny contracted rheumatoid arthritis in 1945, when he was 30 years old. This is a chronic, crippling, incurable disease. It is sometimes virulent, and was in Kwasny’s case. By 1978, when he was 63, his spine and knees were frozen in a bent position, hе was confined to a wheelchair, and for the last 10 years he had been unable to work. Despite his disability he made recordings for the blind as a community service.
He had had many operations, the most recent one in 1976, and in all of these he had been operated on while under a general anesthetic. On one occasion he had explicitly refused to have a spinal anesthetic instead. In 1978 he wаs admitted to the hospital for another operation, this one on a knee. The doctors were concerned that it might be difficult to “intubate” Kwasny, i.e., to insert a tube in his windpipe through which oxygen would be pumрed while he was anesthetized (a general anesthetic paralyzes the lungs). One doctor suggested a spinal anesthetic, but Kwasny refused; he wanted a general anesthetic, as he had always had. But he wаs heavily medicated when he made this decision, so it may not have been well considered.
Before the general anesthetic was administered, Kwasny was put into a light sleep (one in which he would still be breathing under his own power). The next step was to “preoxygenate” Kwasny, that is, fill his lungs with oxygen, so that he would not be deprived of oxygen during the few minutes occupied by the next stage of the procedure. That stage bеgins with the administration of a muscle relaxant that causes the patient to stop breathing. The doctors then “intubate” the patient, which means inserting a tube through the mouth (or nose) and down the trachea. When intubation is complete the breathing machine is switched on and the general anesthetic is administered. See 3 Gray & Gordy, Attorneys’ Textbook of Medicine Till 58.80-58.-81(2) (3d ed. 1986).
When Kwasny аwoke after the operation, he complained of difficulty in swallowing. The next day the tissues of his neck swelled. Two days later he suffered an arrest of breathing and an emergency tracheotomy was рerformed. He appeared to recover, and was discharged from the hospital, but continued to complain about his throat. Six months later he suffered an acute respiratory arrest, was hosрitalized, went downhill rapidly, and died. The death certificate lists many causes of death, including acute respiratory failure, airway obstruction, kidney failure, and rheumatoid arthritis. The plaintiff’s theory of the casе, in support of which expert medical testimony was presented and which the district judge accepted, was that the initial attempt to intubate Kwasny during his last operation had been negligent and had perforated his windpipe and that the perforation had led ultimately to his death. The government presented contrary evidence on both negligence and causation.
The government points out correctly that the district judge’s findings contain factual errors and that its expert witnesses were more experienced than the plaintiff’s. There is no need to take up space in the
Federal Reporter
to rehearse these purely factual and evidentiary disputes. Suffice it to say that there is enough evidence to support the judge’s conclusions and that his findings, while probably erroneous in some respects, do not reflect so fundamental or pervasive a confusion as to invalidate his conclusions. An error that would not (if corrected in time) have altered the judge’s conclusion is a harmless error, and therefore not a ground for reversal. See Fed.R.Civ.P. 61;
Nord v. United States Steel Corp.,
The general tendency of courts in tort cases, once negligence is established, is to resolve doubts about causation, within reason, in the plaintiff’s favor. See Pros-ser and Keeton on the Law of Torts § 41, at p. 270 (5th ed. 1984); 4 Harper, James & Gray, The Law of Torts § 20.2, at pp. 92-OS, 97 (2d ed. 1986). Kwasny cannot invoke this principle, because the Illinois cases do not support it. See, e.g.,
MCInturff v. Chicago Title & Trust Co.,
In light of the trial judge's superi- or ability to gauge the credibility of the witnesses and to make necessarily subjective assessments of intangible loss, we have no basis for disturbing his award of $100,000 for loss of cоnsortium. But we think $350,000 for pain and suffering was clearly excessive, and must be reduced. Illinois (whose substantive law governs this case) does not permit recovery in a wrongful death suit of the loss of utility to the decedent from hаving his life cut short; the only thing that can be recovered is the pecuniary loss to the survivors. Ill.Rev. Stat. ch. 70, 1111 1-2. It is true that the decedent's own suit for personal injury survives his death, see Ill.Rev.Stat. ch. 1101/2, ¶ 27-6, but such a suit, at least as convеntionally conceived, is a suit for the loss sustained by him during his lifetime, and not for the loss of utility from dying prematurely. The qualification is important. In another federal tort claims case governed by Illinois law, the government сonceded, despite the absence of any case authority in Illinois, that a reduction in life expectancy is compensable upon proper proof. See DePass v. United States,
We disagree with those students of tort law who believe that pain and suffering are not reаl costs and should not be allowable items of damages in a tort suit. No one likes pain and suffering and most people would pay a good deal of money to be free from them. If they were not recоverable in damages, the cost of negligence would be less to the tortfeasors and there would be more negligence, more accidents, more pain and suffering, and hence higher social costs. But there is a justified public concern with extravagant tort awards, and it is a duty of an appellate court to keep
Affirmed.