$6,929,000-Medical Malpractice – Brain-Damaged Baby Modified Jury Award Upheld

F&F# 92220A


Summary: In this medical malpractice case involving a brain-damaged baby, F&F won a $13,629,000 unanimous verdict at trial on behalf of infant plaintiff Karney. The award was reduced to $4,529,000 by the trial court judge, but F&F appealed to the Appellate Division, Third Department, which raised the award back up to $6,929,000.

Facts: Action was brought against plaintiff mother’s attending obstetrician, and the hospital where plaintiff was born, 11 weeks premature. A jury found that the obstetrician was negligent in failing to diagnose the mother’s pre-term labor and commence the administration of the drug Ritodrine to arrest labor, and that a hospital nurse was negligent in failing to notify the obstetrician of changes in the medical status of the mother and fetus at an earlier time. As the result of these departures, Plaintiff contended, he suffered hypoxia. At birth he weighed 2 lbs 6 ozs., with an Apgar score of 1 at 1 minute. “He was intubated and remained on ventilatory support virtually all the time he was at the hospital until his discharge in April 1984. At 15 months a diagnosis of cerbral palsy, spastic diplegia was made. This condition has left plaintiff unable to walk and almost totally dependent on others for his personal needs.” 251 A.D.2d 781.

Holdings of the Courts Below: A unanimous jury awarded plaintiff $13,629,900 in damages, finding the defendant hospital 30% negligent and defendants Dr. Dolkart and Newton Ob/Gyn Associates 70% negligent. The trial court set aside the liability finding against the hospital and held the damages award to be excessive, reducing the entire award to $4,529,000.

The plaintiff and Dr. Dolkart appealed.

Discussion: The Appellate Division, Third Department held that the reduction of the award left plaintiff with too little, and raised the total amount to $6,929,000. The court noted that “recent comparable cases have resulted in verdicts in the range of $6 to $9 million.” 674 N.Y.S.2d at 452 (citing another F&F case, Nevarez v. New York City Health and Hosps. Corp., 670 N.Y.S.2d 486). The court also held that Plaintiff’s $4,000,000 award for future group home expenses was not excessive, given that Plaintiff presented evidence that these costs could range from $3,700,000 (without inflation) to $8,400,000 (with a 2.6% inflation rate). The final breakdown affirmed by the Third Department was: $600,000 for past pain and suffering, $1,400,000 for future pain and suffering (60.6 years), $4,000,000 for future group home expenses (after age 21), $300,000 for home equipment adaptations and transportation; $250,000 for future aide or attendant (until age 21), $200,000 for future therapies; $100,000 for future medical supplies/equipment, $75,000 for future medical care; and $4,000 for laboratory work.