$94,812,240-Failure to delay premature birth and administer medication to enhance fetal lung development – cerebral palsy

F&F #94134A


Jury Verdict:     $94,812,240 (Unanimous 6/0)

Breakdown: $3,000,000 for past pain and suffering; $28,333,333 for future pain and suffering; $9,112,000 for future medical expenses; $44,000,000 for future custodial care; $4,288,000 for future rehabilitation services; $6,078,907 for future impairment of earning ability.


  • Spastic diplegia cerebral palsy
  • periventricular leukomalacia (PVL)

Plaintiff was 8 years old at the time of trial. He suffers from cerebral palsy as a result of periventricular leukomalacia secondary to neonatal respiratory distress syndrome attributed to his immature lungs.

Facts:     The Fitzgerald Law Firm Medical Malpractice Law Firm represented the plaintiff, a child with cerebral palsy.  Plaintiff’s mother presented to St. John’s Episcopal Hospital with contractions. She was determined to be 27 weeks pregnant and in preterm labor.   She was seen and treated by Dr. Mullick (a defendant in the case) who ordered a urinalysis and the administration of Brethine (terbutaline), a tocolytic medication, via subcutaneous injection. The urinalysis was positive for bacteria and the white blood cell count was elevated. She was discharged home at 5 PM on oral terbutaline and Keflex, an oral antibiotic.

Plaintiff’s mother returned to St. John’s just past midnight on 3 days later in pain and having contractions. She was seen by Dr. Menera (a defendant in the case), who ordered subcutaneous injections of Brethine. At about 1:20 AM, Plaintiff’s mother’s membranes ruptured and she was transferred to Interfaith Medical Center (a defendant in the case), a tertiary care facility. When she arrived she was no longer having contractions. The plaintiff was delivered via Caesarean section at 7:13 AM.

Pltf.’s obstetrical expert testified that plaintiff’s mother should have been kept in the hospital on when she first arrived at St. John’s with contractions at 27 weeks. According to the expert, she should have been put on IV antibiotics and subcutaneous Brethine or, if discharged home, been placed on a terbutaline pump. He contended that Dr. Menera departed from good and accepted practice by not administering corticosteriods, and that Dr. Mullick and Dr. Jean-Gilles should have administered tocolytics to delay labor and corticosteriods to enhance fetal lung development.

Post Trial Motions/Appeals:     Post trial motions resulted in a reduction of the jury verdict to $7 Million. Judgment was then entered pursuant to CPLR Article 50A. The Appellate Division reversed the judgment against Interfaith and Jean-Gilles. Leave to appeal from the Second Department’s Decision to the Court of Appeals has been sought by the Plaintiff.