$7,500,000-Jury Verdict Upheld: Birth Trauma – Premature Infant Periventricular leukomalacia and Cerebral Palsy

F&F# 92091A


Summary: Plaintiff incurred periventricular leukomalacia (PVL) and spastic diplegic cerebral palsy as a result of defendant’s medical malpractice in delivering her at birth. The jury returned a $15,000,000 award for plaintiff, and the Appellate Division, Second Department eventually sustained an award of $7,500,000.

Facts: On July 2, 1989, plaintiff was born at 28 weeks gestation. She weighed 2 lbs, 10 oz and was born with no spontaneous respiration. After resuscitation efforts, Apgar scores were 4 at 1 minute and 7 at 5 minutes. The infant plaintiff developed central cyanosis before she was intubated. She was eventually diagnosed with periventricular leukomalacia (PVL) and spastic diplegic cerbral palsy.

Plaintiff’s experts contended that it was a departure from accepted practice to deliver the child in a labor room that was not equipped and staffed to resuscitate a premature infant. They testified that this departure resulted in a delay of effective ventilation and hypoxia, and that the hypoxia, superimposed on the child’s prematurity, resulted in PVL and cerebral palsy. At time of trial, plaintiff ambulated with a 4-legged walker, had a surgical attendant, had completely inverted feet, and had twice undergone surgical tendon lengthenings.

Holdings of the Courts Below: The jury returned a $15,000,000 award for plaintiff. The Supreme Court, Nassau County, ordered the verdict lowered to $7,500,000. The final breakdown was: $1,000,000 for past pain and suffering, $1,160,900 for future pain and suffering, $1,392,950 for future medical expenses and equipment, $1,392,950 for future physical and occupational therapy, $2,321,000 for future custodial care, and $232,200 for impairment of earning capacity. The defendant doctor, Edward Wright, appealed.

Discussion: The Appellate Division, Second Department, affirmed the Supreme Court’s judgment. The court held: “There was sufficient medical testimony from which the jury could rationally conclude that the plaintiff’s injuries were proximately caused by the negligence of the appellant, Dr. Edward Wright. Moreover, the verdict of the plaintiff was not against the weight of the credible evidence. . . .The damages awarded, as reduced by the Supreme Court and stipulated to by the plaintiff, do not deviate materially from what would be reasonable compensation.” [cites omitted] 277 A.D.2d at 266.