$6,285,772-Medical Malpractice: Brain Damaged Baby Modified Jury Award Upheld

F&F# 83247A


: This First Department memorandum decision reinstated, but reduced, a $10,000,000 jury verdict awarded to a Plaintiff who suffered profound mental retardation, spastic quadriplegia, and blindness as the result of medical malpractice at his birth.

Facts: In July 1978, Plaintiff’s mother complained to her obstetrician, Dr. Mendez (who settled before trial) of labor pains although she was two months short of carrying full term. He sent her home, but told her if the pain continued, she should go to Union Hospital. Later, she was taken there by her brother. However, when they arrived, Dr. Mendez, who responded he was with a patient and that Plaintiff’s mother should wait for him. Dr. Mendez did not begin to examine Plaintiff’s mother until 3 hours after she had arrived at the hospital. At that point, he determined that she was going to deliver prematurely and told her to go to Jacobi (sued as NYCHHC). Several hours later, she was brought to Jacobi by ambulance. An emergency room examination revealed a probable breach presentation. She was brought to the delivery room, and about 1 1/2 hours after she arrived at Jacobi, Plaintiff was delivered by Cesarean section. He weighed 3 lbs. at birth. He suffered from cerebral palsy, severe retardation, spastic quadriplegia, and blindness. Plaintiff was 15 years old at trial, was unable to walk and required assistance in all aspects of daily living. At the time of trial he lived with his mother and two brothers.

Holdings of the Courts Below: Trial court was Supreme Count, Bronx County. Plaintiff’s expert testified that the condition of the child evidenced pre-delivery hypoxia, and that if he had been delivered even 30 minutes earlier he would have been normal. Defendants contended that the hypoxia was caused after the birth, by the fact that his lungs were undeveloped. Plaintiff won a unanimous jury verdict of $10,239,723. By a five to one vote, the jury apportioned the liability as follows: 33 1/3% for Dr. Mendez, 33 1/3% for Union Hospital, 33 1/3% for NYCHHC. (Dr. Mendez had settled for $975,000 before trial.)

However, the trial court agreed with Defendants that the injuries were caused after birth, stating that two measures of blood pH were consistent with difficulty after birth from prematurity, and inconsistent with hypoxia caused by cord compression, Plaintiff’s theory. Accordingly, the trial court set aside the verdict and dismissed the complaint. Plaintiff appealed to the Appellate Division, First Department.

Discussion: The First Department reinstated the liability verdict, but lowered it to $6,285,772. The final breakdown was: $2,500,000 for future custodial care, $2,000,000 for past and future pain and suffering, $1,500,000 for future lost earnings; $246,250 for future medical expenses (29 years); $39,522 for past medical expenses.

The court held: “As to Union Hospital, the jury could reasonably find that, given Ms. Reyes’ condition, a direction from her physician resulting in her waiting three hours for an evaluation should have been countermanded, or at least inquired into, by hospital staff. The jury could find as well that Union Hospital breached its duty of care in failing to arrange for an earlier ambulance to take Ms. Reyes to Jacobi Hospital.” 248 A.D.2d at 309.

“As to Jacobi Hospital, the trial court improperly substituted its judgment for the jury in finding that an emergency was not indicated due to a lack of evidence of fetal distress when Ms. Reyes arrived at Jacobi Hospital. In addition, contrary to the view of the trial court, the jury could find, based on the testimony of plaintiffs’ experts, that there was fetal hypoxia as a result of cord compression. The blood pH readings, relied on by the trial court, did not conclusively demonstrate post-birth hypoxia.” Id.