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On 30 May 2000, the infant plaintiff was born approximately twelve weeks prematurely


The Facts:

On 30 May 2000, the infant plaintiff was born approximately twelve weeks prematurely in a medical facility operated by defendants. The infant plaintiff suffered from neonatal respiratory Brooklyn distress syndrome, and he was placed in neonatal intensive care, where his blood oxygen and blood acidity was monitored by defendants’ staff. The blood oxygen was continuously measured by a pulse oximeter: a device, attached to the patient’s finger that uses light to measure the amount of oxygen in the blood. A respirator and breathing tube was used when it was noted that the infant plaintiff cannot breathe. At 11:00 AM on the following day,

Defendants’ staff performed arterial blood gas analysis, which is a laboratory analysis of a drawn blood sample that specifies both the acidity and the amount of saturated gas in the sample. The test demonstrated that the pH of the infant plaintiff’s blood was 7.254. At around 2:30 PM, a doctor, also of defendants’ staff, ordered a second arterial blood gas analysis. At 3:00 PM that afternoon, the blood oxygen saturation was over 90%, according to the pulse oximeter. At 4:15 PM, the blood oxygen saturation dropped to around 50%-60% from a previous level of over 90%. Shortly thereafter, defendants’ staff noted that the infant was suffering from a hemorrhage in the lungs. Consequently, the staff cleared the blood from the lungs and then adjusted the respirator settings and breathing tube. The staff then administered a paralytic to immobilize the infant plaintiff and prevent him from removing the breathing apparatus. At 8:00 PM, another arterial blood gas analysis was done, the result of which was a pH of 6.7, which is dangerously low. The staff then adjusted the respirator to administer more oxygen through forced breathing. The following day, medical imaging showed that the infant plaintiff had suffered a brain hemorrhage and hydrocephalus, which is increased intracranial pressure on the brain caused by the accumulation of fluid. The hemorrahge caused periventricular leukomalacia, the destruction of white matter of the brain. This, in turn, caused the infant plaintiff to develop cerebral palsy; a brain injury.

Subsequently, plaintiffs commenced an action to recover damages for the neonatal medical malpractice on the ground of the birth injury or birth injury accident; that defendants, through their agents, engaged in acts and omissions that constitute medical malpractice; that this malpractice caused the infant plaintiff to develop cerebral palsy and caused derivative losses to his mother. At the close of trial, plaintiffs also sought damages for pain and suffering.

The jury returned a verdict for plaintiffs, deciding that defendants’ staff departed from good and accepted medical procedure by failing to monitor the infant plaintiff’s blood gas levels and by failing to maintain a proper acid/base balance in the infant plaintiff’s blood; that these departures were a substantial factor in the infant plaintiff’s present condition; that defendants’ staff should have known that the condition of the infant plaintiff had deteriorated since forced breathing was first administered and that defendants’ staff should have known that the condition of the infant plaintiff would continue to deteriorate. With respect to damages, the jury awarded: $75,000 for pain and suffering of the infant plaintiff up until the present date; $4,500,000 for future pain and suffering of the infant plaintiff, based on a life expectancy of 70 years; $7,500,000 for earnings lost by the infant plaintiff; $4,500,000 for necessary future medical care; $1,500,000 for future therapy needs; $4,500,000 for needed supplies;

$3,000,000 for home or facility care; and $6,000,000 for the derivative claim asserted by infant plaintiff’s mother and natural guardian.

Defendants now move for an order setting aside the jury verdict and dismissing the complaint, or, alternatively, setting aside the jury verdict and ordering a new trial.

Plaintiffs cross-move for an order directing judgment in the instant action.

The Ruling:

Defendants assert four arguments in favor of their motion.

First, that the defendants were prejudiced by the court’s decision to permit testimony regarding claims beyond those specified in plaintiffs’ bill of particulars; specifically, that the bill of particulars makes no mention of any alleged failure to perform adequate arterial blood gas tests.

The court denies the argument, noting the language of the bill of particulars, which alleged malpractice because of the failure to properly and timely oxygenate and failure to properly assess infant’s condition immediately after birth on the part of defendants’ agents. There is no authority cited for defendants’ argument that alleged malpractice immediately after birth would not include malpractice the day after birth, neither is there any authority for their position that an alleged failure to monitor arterial blood gas is a different theory than failure to properly assess infant’s condition. Moreover, since the arterial blood gas tests were part of the infant plaintiff’s chart, there is no merit to defendants’ claim that allowing testimony of the tests constituted prejudice or unfair surprise.

Thus, there is no merit to Long Island defendants’ claim that permitting arterial blood gas testimony prejudiced them.

Second, defendants assert that the court erred when it precluded their expert from testifying that sepsis either caused or may have caused the infant plaintiff’s present condition; that relevant medical records identify that the infant plaintiff was infected by bacteria and there would have been no prejudice or surprise to plaintiffs if their expert testified regarding sepsis.

Here, defendants’ disclosure makes no mention of infection. Defendants’ own neonatal expert conceded that the sepsis theory was an afterthought during direct examination.

Notwithstanding any present argument to the contrary concerning expert disclosure, the strategy of advancing that infection caused the present condition of the infant plaintiff was quite literally conceived by counsel for defendants and their hired neonatal medicine expert.

Thus, there is no merit to defendants’ contention that the court should have permitted their expert to testify about sepsis.

Third, defendants’ contentions that plaintiffs’ case was not legally sufficient or that the verdict was against the weight of credible evidence or inconsistent is bereft of merit.

A trial court’s discretionary power to set aside a jury verdict should be undertaken with considerable caution and only where the jury could not have reached the verdict on any fair interpretation of the evidence. As repeatedly held, a court must first conclude that there is simply no valid line of reasoning and permissible inferences which could possibly lead rational men to the conclusion reached by the jury on the basis of the evidence presented at trial.

Here, there is ample evidence that, if believed, provided a valid line of reasoning that on various occasions, the acts or omissions of defendants’ staff were departures from good and accepted standards of medical practice, and that these acts or omissions were substantial factors in causing the present condition of the infant plaintiff. The jury was free to credit the testimony of one neonatal medicine expert and discredit the other. A jury is not required to accept an expert’s opinion to the exclusion of the facts and circumstances disclosed by other testimony and/or the facts disclosed on cross-examination. Indeed, a jury is at liberty to reject an expert’s opinion if it finds the facts to be different from those which formed the basis for the opinion or if, after careful consideration of all the evidence in the case, it disagrees with the opinion.

Fourth, defendants’ argument that the verdict is inconsistent because the jury decided that defendants’ staff failed to properly monitor blood gas and acid/base balance, but decided defendants’ staff did not fail to properly monitor the oxygen level, is also without merit.

Monitoring the oxygen level through the pulse oximeter was insufficient to determine the total health of the infant plaintiff. There is no inconsistency in the jury’s finding that blood oxygen was not improperly monitored but other characteristics of the infant plaintiff’s blood were ignored.

And fifth, with respect to the award, defendants correctly note that some of the jury’s award is speculative or excessive.

On the value of loss of future earnings of the infant plaintiff, the award was not based on any competent evidence or testimony and is speculative; the award for future pain and suffering and loss of services deviated materially from what would be reasonable compensation; and the cost of supplies and equipment should be reduced accordingly.

In conclusion, the motion is granted solely to the extent that a new trial is ordered on the amount of damages awarded for future pain and suffering unless plaintiffs serve and file a written stipulation to reduce the jury award of damages for future pain and suffering, damages for future lost earnings, damages for medical care, equipment and supplies, and damages for loss of services. The verdict rendered for pain and suffering to date and home/facility care remain undisturbed. Plaintiffs’ cross motion for an order directing judgment on the verdict is denied.

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