The Keene Brief

Dylan Keene was born on May 15, 1986. Shortly after delivery he experienced respiratory distress, septic shock, and seizures. Subsequent neurological examinations revealed severe brain damage. It was later determined that Dylan contracted meningitis that caused profound mental retardation associated with spastic quadriplegia, poor vision, chronic seizures, thermoregulatory instability, chronic respiratory congestion, gastro-esophageal reflux, and scoliosis. Dylan is incontinent and suffers from chronic constipation. He is unable to care for himself, and his participation in leisure activities is limited.

Despite his multiple disabilities, Dylan is able to communicate with facial expressions and vocalizations. He experiences both emotional pain and pleasure. Dylan responds to physical sensations and situations around him. The Keene family provides Dylan extraordinary loving home care and includes him in family activities. The Keenes are Dylan's constant careproviders and advocates. Medicaid pays the high costs of his medical services. Since 1992, he has attended the Boston College Campus School, where he receives special education services, including a full-time nurse.

Dylan's life expectancy was a contested issue in the case. This issue is important in wrongful birth cases because it is a major factor in the calculation of compensatory damages. The standard morality tables commonly used in personal injury cases are not applicable to a child like Dylan, who presents a particular set of disability conditions. Therefore, his life expectancy must be based on a comparable norm group that shares his mental and physical characteristics. Relying upon published research reports and expert testimony, the court ascertained Dylan's life expectancy to be in the range of 4.8 to 12.2 years from the time of trial. The court set a life expectancy of 10 years from the time of trial, at which point Dylan will be 26 years old. This life expectancy was the basis for the award of compensatory damages.

The Court's Damages Calculus

In response to the malpractice suit brought by Dylan's parents, the hospital's liability was declared by default and damages awarded (Dylan Keene v. Brigham and Women's Hospital, 2000). A sum of $4,108,311.66 was awarded to the Keenes. Future medical and other life care costs were based on the life expectancy of 10 years. Judge Judith Fabricant broke down these costs into three categories: (a) the ordinary maintenance that applies to everyone (e.g., food, housing); (b) home care provided by Dylan's parents (e.g., management, advocacy) and alternative care in Dylan's adult years (e.g., nursing services, hospitalization); (c) extraordinary medical care resulting from the injury to Dylan. In awarding damages for future costs of care, the court discounted (a) and part of (b), the home care provided by Dylan's parents.

It is the award of general damages that has become controversial. General damages compensate the plaintiff for claims such as pain and suffering, loss of companionship, and embarrassment. The courts further divide general damages into pecuniary or nonpecuniary damages. Pecuniary damages refer to compensation for the economic consequences of the injury (i.e., medical expenses, lost earnings, pain and suffering). Nonpecuniary damages refer to compensation for loss of enjoyment, loss of the pleasures and pursuits of life. Quoting Judge Fabricant: “The parties disagree, however, on a fundamental and novel legal question that must be resolved in order to determine this category of damages: whether and how the plaintiff is entitled to compensation for the loss of enjoyment of life that he would have experienced but for the injury” (Dylan v. Brigham and Women's Hospital Inc., 2000, p. 5).

The defendants argued that there should be no money damages for pain and suffering because Dylan is unaware of his suffering. Moreover, a separate loss of enjoyment claim was unjustified because Dylan had no conscious awareness of such a loss. Judge Fabricant awarded general damages for past and future pain and suffering, but the court denied additional compensation for Dylan's enjoyment of life claim. The court relied on Massachusetts' tort law and a ruling in a New York state court decision (McDougald v. Garber, 1989). Massachusetts law allows for loss of enjoyment damages as a component of pain and suffering provided the plaintiff has conscious awareness of his or her loss.

McDougald is a malpractice case in which a 31-year-old woman suffered oxygen deprivation during surgery, resulting in severe brain damage and leaving her in a permanently comatose condition. The Court of Appeals of New York affirmed a lower court decision denying the plaintiff compensation for loss of enjoyment of life. The court reasoned that “some degree of cognitive awareness” (a fact disputed by the parties) was prerequisite for such compensation. The court explained: “Simply put, an award of money damages in such circumstances has no meaning or utility to the injured person. An award of the loss of enjoyment of life cannot provide [such a victim} with any consolation or ease any burden resting on him” (McDougald v. Garber, 1989, p. 56). Applying McDougald, Judge Fabricant opined: “With the possible exception of family outings, there is nothing that Dylan's damage award could be spent on that could give him any pleasure, in substitution or compensation for the pleasure he does not have by virtue of his injury” (Dylan Keene v. Brigham and Women's Hospital, Inc., 2000, p. 40).

Although satisfied with the damages awarded, the Keenes were offended by the court's characterization of Dylan's cognitive impairment as one that forecloses his capacity to enjoy life as he experiences it. To do so is discriminatory and diminishes the value of Dylan's life and the lives of people with mental retardation. The Keenes appealed the ruling on their enjoyment of life claim directly to the Supreme Judicial Court of Massachusetts. The high court refused to hear the case and sent it down to the state Appeals Court for review. On September 19, 2002, the Appeals Court affirmed the decision of the Supreme Judicial Court. In affirming, the court agreed that damages for loss of enjoyment “should not be made where an injured plaintiff lacks cognitive awareness of his loss” (Dylan Keene v. Brigham and Women's Hospital, 2002, p. 9). The plaintiffs have appealed to the Supreme Judicial Court of Massachusetts. Oral arguments before the court were heard on January 9, 2003, and its decision is forthcoming.


The Keene case raises the legal issue of the value of a life of a person with mental retardation as measured in a loss of life enjoyment claim. Several questions are asked: Should the hospital be required to pay for Dylan's lost life? How many dollars does it take to replace a lost childhood? Does it matter that he does not know what he has lost? Is there an entitlement to compensation for the normal joys that Dylan will never know?

The Keene case highlights the differences among jurisdictions on the loss of enjoyment of life claim. Some jurisdictions award compensation for the claim as a separate category of general damages for the loss of life's enjoyments due to the injury. Other jurisdictions consider loss of enjoyment as a component of damages for pain and suffering. There is no controlling case on this issue in Massachusetts. Although the state's medical malpractice statute does not mention the loss of enjoyment as a category of general damages, neither is it specifically excluded. Consequently, the Superior Court of Massachusetts was persuaded by the McDougald case that damages for loss of enjoyment not be considered a separate element of general damages for pain and suffering. This ruling was predicated on a showing that Dylan did not possess the “conscious awareness” to know the extent of his loss. The Keene court, therefore, gave short rift to a 1982 West Virginia state appellate decision that recognized a separate loss of enjoyment claim. In Flannery v. United States of America, a case certified from the United States Fourth Circuit Court of Appeals, the Supreme Court of West Virginia awarded the plaintiff $1,300,000 in compensatory damages for the loss of ability to enjoy life. The case involved a 22-year-old male who, as a result of an automobile accident, remained in a semi-comatose state. Unlike the McDougald court, this court did not require some cognitive level of awareness be shown in making the award. The court opined that the fact that the plaintiff was “nonsentient” established his right to recover for the loss of the ability to enjoy life. Judge Miller wrote:

We believe that a loss of enjoyment of life is encompassed within and is an element of the permanency of the plaintiff's injury. To state the matter in a slightly different manner, the degree of a permanent injury is measured by ascertaining how the injury has deprived the plaintiff of the customary activities as a whole person. The loss of customary activities constitutes the loss of enjoyment of life” (p. 5). He further concluded “that a plaintiff in a personal injury action who has been rendered permanently semi-comatose is entitled to recover for the impairment of his capacity to enjoy life as a measure of the permanency of his injuries even though he may not be able to sense the loss of enjoyment of life. (Flannery v. United States of America, 1982)

The Massachusetts courts failed to distinguish the facts in Keene from those in McDougald and Flannery in applying the “some degree of cognitive awareness” test. As noted earlier in McDougald, a 31-year-old woman suffered oxygen deprivation during surgery, resulting in severe brain damage. She remained in a permanent comatose condition with no cognitive awareness. In Flannery, a 22-year-old man remained in a semi-comatose condition as the result of an automobile accident. Dylan Keene is neither in a semi-comatose or comatose state. In the plaintiff's Summation of Evidence, Dylan was described with these words:

Dylan Keene is a young man with strength and courage. Dylan loves the outdoors, the feel of the wind on his face. Dylan can sense the entry into the room of those who are most dear to him without spoken word. Dylan returns the selfless love he is given by his mother and father. Dylan melts to the voice of his mother—she is for him a constant. With great love, humor and puzzlement he noted six years ago the entry of his sister “Nikki” into his world and over a year ago his brother “Dougie.” Dylan loves the water. Like most of us, Dylan enjoys the tension relieved from his muscles. Dylan recognizes and responds to his family and caregivers. (Cited in letter from Patricia C. Williams to the American Association on Mental Retardation—AAMR, September 21, 2001).

These findings would have established that Dylan had more than “some degree of cognitive awareness,” and under a McDougald holding, he is entitled to compensatory damages for loss of enjoyment.

Keene discriminates against people with mental retardation, particularly those with severe retardation. Paradoxically, those who incur a more severe cognitive injury receive no or less compensation under a loss of life enjoyment claim. This was alluded to in Judge Titone's dissent in McDougald v. Garber (1989):

It is fundamentally unsound, as well as grossly unfair to deny recovery to those who are completely without cognitive capacity while permitting it to those with a mere spark of awareness, regardless of the latter's ability to appreciate either the loss sustained or the benefits of the monetary award offered in compensation. (p. 60)

There is also a danger in substituting one's subjective judgment about what degree of mental retardation negates the enjoyment of another's life experiences.

Finally, Judge Fabricant's decision has been criticized for its stark and erroneous depiction of people with severe mental retardation. The suggestion that Dylan's life with mental retardation as one lacking the capacity to experience life and even enjoying it devalues that life not only in monetary terms but in human terms as well. The Keene case is disconcerting because it resurrects an historical view that the lives of people with retardation are less than human and their value should be measured accordingly. Much has been accomplished in recent decades to correct this view by securing civil rights for people with mental retardation and improving their quality of life. Because it has been the courts that have been instrumental in this struggle, it is for the courts to correct one of its officials when she has erroneously departed from precedent.


Dylan Keene v. Brigham and Women's Hospital, Inc.
Findings of Fact, Rulings of Law, and an Order of Assessment of Damages, Commonwealth of Massachusetts Superior Court, March 14, 2000
Dylan Keene v. Brigham and Women's Hospital, Inc.
Massachusetts Appeals Court Slip Opinion, February 19, 2002
Flannery v. United States of America. 171 W.Va. 27
McDougald v. Garber, 73 N.Y.2d 246

Author notes

Author: Stanley J. Vitello, PhD, JD, Professor of Education, Rutgers–The State University of New Jersey, New Brunswick, NJ 08901–1259.