On December 8, 2016, the Supreme Court of New York, Appellate Division, First Department (“Appellate Court”) affirmed the February 18, 2015 judgment entered in favor of the plaintiff who required a surgical amputation following a crush injury to his leg from being hit by a car. The New York medical malpractice defendants argued that the jury’s verdict was not supported by legally sufficient evidence or was against the weight of evidence.
The Appellate Court held that there was sufficient evidence presented by the plaintiff supporting his theory that the defendant doctor should have, in his attempt to save plaintiff’s leg, employed a Fogarty catheter to re-establish circulation in the larger blood vessels and then admitted plaintiff to ICU for 24 to 36 hours to determine whether the leg was viable.
The plaintiff’s medical expert had testified during trial that the chance of saving the plaintiff’s leg was 30%-40%, which the Appellate Court held was legally sufficient to support the verdict.
The New York medical malpractice jury had awarded the plaintiff $2,000,000 in past pain and suffering, $4,000,000 in future pain and suffering over 30 years, $6,477.10 for medical care annually for 30 years with a cost growth rate of 4%, $3,351.42 for medication annually for 30 years with a cost growth rate of 4%, $12,555.79 for equipment and supplies annually for 30 years with a cost growth rate of 4%, and $7,084.48 for physical therapy annually for 30 years with a cost growth rate of 4%. The New York medical malpractice jury also assessed interest on the judgment at a rate of 6%, which the Appellate Court modified to assess interest on the judgment at 3%, and to reduce the annual cost growth rate on the future expenses to 3%.
The Appellate Court also ruled that the trial court did not err in denying the defendants’ request to place on the verdict sheet the driver of the vehicle that struck plaintiff, who settled prior to the plaintiff filing his New York medical malpractice action, because the defendants are subsequent tortfeasors and the jury was correctly charged that its award was to be limited to the exacerbation of the original injury caused by medical malpractice.
The Appellate Court ruled that the defendants’ argument that plaintiff’s original injury and subsequent amputation were indivisible is without merit in that the experts testified as to what the condition of the leg would have been if it had been saved.
Lastly, the Appellate Court held that there was no basis to reduce the jury’s award of damages because the jury’s award did not deviate materially from what would be reasonable compensation (there was testimony that the plaintiff suffered from shrinking stump and ulcers from the prosthetic (the plaintiff has had five prosthetics), his condition and his ability to ambulate will only worsen over time, and at some point he will be confined to a wheelchair); the award was in line with similar verdicts which have been upheld.
Source Marin v. New York City Health and Hospitals Corporation, No. 1915.
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