F&F# 89042A
MEDICAL MALPRACTICE – BIRTH TRAUMA – PREMATURE INFANT PERIVENTRICULAR LEUKOMALACIA AND CEREBRAL PALSY
Summary: Plaintiff incurred periventricular leukomalacia, spastic diplegia cerebral palsy, and hydrocephalus as a result of defendants’ medical malpractice in failing to administer appropriate therapy to her mother prior to childbirth. The jury returned a $7,500,000 award for plaintiff, which the Supreme Court, Westchester County, refused to set aside. The Appellate Division, Second Department, eventually sustained an award of $3,000,000.
Facts: The infant plaintiff was born in April of 1986, at 26 weeks gestation. Plaintiff alleged that the Defendants who attended to her mother at childbirth failed to provide antimicrobial therapy to treat a urinary tract infection, thereby causing the premature birth. Plaintiff’s Apgar score was 7 at 1 minute, and 8 at 5 minutes. Three days later, she developed a germinal matrix bleed. She has periventricular leukomalacia, spastic diplegia cerebral palsy, and hydrocephalus. She is mentally retarded.
Holdings of the Courts Below: The jury returned a $7,500,000 award for plaintiff, which the Supreme Court, Westchester County, refused to set aside. The defendants appealed.
Discussion: Without discussion, the Appellate Division, Second Department, lowered the award to $3,000,000. The final breakdown was: $750,000 for past pain and suffering, $1,500,000 for future pain and suffering, and $750,000 for lost earnings. The court acknowledged that “[t]he jury verdict is rational and based on a fair interpretation of the evidence.” 276 A.D.2d at 534.