The Supreme Court of the State of New York Appellate Division, Second Judicial Department (“New York Appellate Court”) held in its Decison & Order dated May 9, 2018 that the $5 million New York medical malpractice jury verdict ($1,000,000 for past pain and suffering and $4,000,000 for future pain and suffering) for a child born on February 23, 2009 and who suffered permanent injuries as a result of alleged medical negligence after her birth at the defendant hospital, was excessive because the damages awarded by the jury “deviate materially from what would be reasonable compensation.”
The child was born prematurely at 27 weeks of gestation at the defendant hospital. On March 9, 2009, while still in the care of the defendant, the plaintiff was diagnosed with necrotizing enterocolitis (“NEC”), which is an acute infection of the intestine sometimes seen in premature infants. The baby was transferred to another hospital on March 14, 2009, and ultimately underwent surgery for resection of portions of her intestine, on May 5, 2009. The plaintiff has since been diagnosed with short bowel syndrome secondary to NEC, which, it is anticipated, will cause her to suffer certain intestinal problems for the rest of her life.
The plaintiff filed her New York medical malpractice lawsuit alleging that the defendant negligently caused NEC by feeding her increased calories and concentrated breast milk, and that the defendant was negligent in failing to order a surgical consultation upon diagnosing her with NEC and failing to timely transfer her to another hospital capable of surgically treating her.
The New York medical malpractice jury determined that the defendant did not depart from acceptable medical practice in its feeding of the plaintiff, but that it did depart from such practice by failing to obtain a surgical consultation upon diagnosing her with NEC and failing to timely transfer her to another hospital. The jury also found that these departures were substantial factors in causing injury to the plaintiff in awarding damages for the plaintiff’s past pain and suffering and for the plaintiff’s future pain and suffering.
The trial judge granted the defendant’s post-trial motion to set aside the verdict on the issue of damages to the extent of directing a new trial on damages unless the plaintiff stipulated to a reduction of the damages awards for past pain and suffering to $75,000 and for future pain and suffering to $500,000. The plaintiff appealed.
The New York Appellate Court stated that the jury rationally could have concluded that the defendant was negligent in failing to order a surgical consultation when it diagnosed the plaintiff with NEC and in failing to timely transfer her to a hospital capable of treating her surgically, and that these departures were a proximate cause of the plaintiff’s injuries.
Nonetheless, the New York Appellate Court agreed with the trial judge “that the jury verdict indicates that the jury found that the defendant did not cause the plaintiff’s NEC inasmuch as it determined that the defendant was not negligent in its feeding of the plaintiff. Upon rejecting this claim, the jury found only that the defendant was responsible for the delay in obtaining a surgical consult and transferring the plaintiff to another hospital. The plaintiff’s expert testified that this delay allowed the plaintiff’s NEC to become more severe and complex, and resulted in the loss of more bowel. Under these circumstances, we agree with the court that the damages awarded were excessive to the extent indicated, as they deviate materially from what would be reasonable compensation.”
Source Hollingsworth v. Mercy Medical Center, 2018 NY Slip Op 03340.
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