Opinion
50525/02.
Decided November 13, 2006.
Kenny Rodriguez — Pro Se, Pro Se, DIN 94A6769, Butler Correctional Facility, Red Creek, NY, Attorney for Petitioner.
Christine A. Ryan, Esq., Assistant Attorney General, New York, NY, Attorney for Respondent.
Upon the foregoing papers, defendants move for an order, pursuant to CPLR 4404, setting aside the jury verdict in the instant action 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.
Plaintiffs submit a draft proposed judgment as an exhibit submitted with their cross motion.
This is an action to recover damages for neonatal medical malpractice. On May 30, 2000, the infant plaintiff was born approximately twelve weeks prematurely in a medical facility operated by defendants. The infant plaintiff suffered from neonatal respiratory distress syndrome, and he was thus placed in neonatal intensive care, where his blood oxygen and blood acidity was monitored by defendants' staff, under the direction of Dr. Mohammed Ashir. 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 were used when it was noted that the infant plaintiff could not breathe on his own.
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, Dr. Rehanna Kahn, 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.
Plaintiffs commenced the instant action, alleging that defendants, through their agents, engaged in acts and omissions that constitute medical malpractice. Plaintiffs argue that this malpractice caused the infant plaintiff to develop cerebral palsy and caused derivative losses to his mother. Discovery ensued and was completed. The action was tried by jury from January 6, 2006 to January 12, 2006.
In sum, plaintiffs' argument, as demonstrated by the expert testimony of neonatologist Dr. Richard Inwood, is as follows: although the infant plaintiff was born prematurely, his health improved significantly for the first 24 hours after birth. However, during the following morning, the attempts by defendants' staff to keep plaintiff's blood sufficiently oxygenated were failing. This was demonstrated by the breathing rate and respirator pressure noted on the chart at 11:00 AM on May 31, 2000 — the same time as the arterial blood gas analysis that revealed a pH of 7.254. Defendants' staff should have known that the condition of the infant plaintiff had deteriorated since forced breathing was first administered. Also, defendants' staff should have known that the condition of the infant plaintiff would continue to deteriorate.
Dr. Inwood, noting the missing results of the arterial blood gas analysis ordered at 2:30 PM by Dr. Kahn, if performed at all, testified that the failure of defendants' staff to perform a second arterial blood gas analysis until 8:00 PM constituted a departure from good and accepted medical practice. He also testified that in the nine hours between the two analyses, which resulted in a pH of 7.254 and then a pH of 6.7, the infant plaintiff did not have a medically acceptable level of blood oxygen saturation. The lack of oxygen in the bloodstream caused cells to produce energy anaerobically, which caused lactic acid to build up in the bloodstream. This lactic acid buildup, in turn, damaged the premature blood vessels in the brain and lungs, and this damage caused the present condition of the infant plaintiff.
Dr. Inwood also provided his opinion regarding how defendants' staff administered oxygen. He testified that the staff erred by not administering the correct respirator pressure. Moreover, he noted that the oxygen level of the infant plaintiff's blood did not improve to an acceptable level during respirator adjustments.
Also, Dr. Inwood opined that the administration of a paralytic required an immediate arterial blood gas analysis, and the failure to obtain one constituted a deviation from good medical practice. Lastly, he stated that less than 10%-15% of premature babies later suffer from a brain injury of the sort suffered by the infant plaintiff. Plaintiffs conclude that the omissions of defendants' staff constituted medical malpractice and caused cerebral palsy in the infant plaintiff.
Dr. Inwood also testified that the failure to administer surfactants — chemicals which enable the patient to breathe by reducing lung surface tension — was a departure from good and accepted medical practice. After direct examination of Dr. Inwood, defendants moved to strike this testimony, and the court granted the motion.
Plaintiffs called other witnesses: Dr. Leon Charash, a pediatrician, who testified about the cause of the infant plaintiff's cerebral palsy and the behavioral and cognitive effects thereof; Dr. Joseph Carfy, a specialist in rehabilitation medicine, who had examined the infant plaintiff and testified about the care that the infant plaintiff will require throughout his life; and Michael Soudry, a forensic economist, who testified regarding the present value of the estimated cost of caring for the infant plaintiff, as well as the value of lost earnings. Soudry testified, inter alia, that future lost earnings is between $1,404,072 and $5,419,085.
Defendants argued that the condition of the infant plaintiff is a result of complications associated with premature birth. Defendants maintain that Dr. Inwood conceded under cross examination that absent any malpractice, around 15% of premature babies develop a brain hemorrhage that could cause cerebral palsy.
Defendants called neonatologist Dr. Alan Spitzer as part of their case. He disagreed that the lack of an arterial blood gas analysis between 11:00 AM and 8:00 PM would constitute malpractice, but he also opined that a 2:30 PM test was performed and incorrectly logged as a second 11:00 AM test. He also testified that, prior to 4:15 PM, one could assume that the infant plaintiff was doing well based on the pulse oximeter. Also, he testified that it would have been redundant to order an arterial blood gas analysis at 4:15 PM, since the pulse oximeter results already suggested the right course of action — vigorously administer more oxygen — which was skillfully performed by defendants' staff. He further testified that while the lung hemorrhage and consequent desaturation were serious events, they were adequately addressed and did not cause lasting consequences. He disagreed with Dr. Inwood's criticism of the staff's operation of the respirator and opined that if the administration forced oxygen in the manner suggested by Dr. Inwood would have caused a pneumothorax that, in turn, would have killed the infant plaintiff. In sum, Dr. Spitzer concluded that, based on the infant plaintiff's chart and the limits of intensive neonatal care, plaintiff's present condition is the result of premature birth and not any malpractice on the part of defendants' staff.
With respect to the brain hemorrhage and cerebral palsy, Dr. Spitzer testified that the white blood cell count of the infant plaintiff suggested he suffered from sepsis and a bacterial infection that caused substantial inflamation, which in turn affected blood flow to his brain. He was prepared to also testify that prenatal conditions had caused or may have caused the infant plaintiff's condition. This testimony was objected to by counsel for plaintiffs, noting that the pretrial expert witness submission by the defendants did not mention either sepsis or a prenatal condition as part of defendants' case. This court sustained that objection. The jury was then instructed to disregard the testimony regarding sepsis, and defendants were precluded from offering testimony regarding a prenatal condition.
Referred to by counsel discussing this matter outside of the presence of the jury as "microcephaline" and, with respect to the infant plaintiff, "microcephalic".
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. The jury also decided that these departures were a substantial factor in the infant plaintiff's present condition.
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 Vanessa Lovett.
Defendants assert four arguments in favor of their motion. The first argument is that the defendants were prejudiced by this court's decision to permit testimony regarding claims beyond those specified in plaintiffs' bill of particulars. Specifically, defendants claim that the bill of particulars makes no mention of any alleged failure to perform adequate arterial blood gas tests.
Defendants had moved this court, on the record (pp. 3-6) for the same relief. This court denied it, 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, nor 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. In short, there is no merit to defendants' claim that permitting arterial blood gas testimony prejudiced them.
The second argument asserted by defendants is that this court erred when it precluded their expert from testifying that sepsis either caused or may have caused the infant plaintiff's present condition. Defendants assert that relevant medical records identify that the infant plaintiff was infected by bacteria, and thus, there would have been no prejudice or surprise to plaintiffs if their expert testified regarding sepsis.
However, in opposition, plaintiffs cite relevant authority on this issue. In Dalrymple v. Koka ( 2 AD3d 769), in which plaintiff suffered injuries while giving birth and alleged that medical malpractice caused her injuries, the defendants asserted in their expert disclosures pursuant to CPLR 3101 (d) (1) (i) that their experts "would testify that the . . . labial injury constituted an accepted risk of vaginal delivery' . . . which was not caused by the defendants' treatment and was exacerbated by the injured plaintiff's smoking . . . [n]o mention was made of an infection or pre-existing condition" ( Id. at 770). The trial court permitted the experts to testify that plaintiff's injuries were in part due to chronic infections, implicating the infectious agents condyloma and human papillomavirus ( Id.). The jury found in favor of defendants ( Id.). The Second Department of the Appellate Division reversed, holding that the expert witness disclosure in that case did not encompass a claim of existing infection ( Id. at 771).
In the instant action, defendants' disclosure pursuant to CPLR 3101 (d) (1) (i) makes no mention of infection. Defendants argue that an existing infection falls under the assertion, included in the disclosure, that "the child's course and condition were dictated by factors which were outside the control of defendants". However, and as noted by plaintiffs, defendants' own neonatal expert conceded that the sepsis theory was an afterthought during direct examination:
"Q. . . . When for the first time did you mention to me [counsel for defendants] about the Kelbsiella [ sic] sepsis?
A. We talked briefly I believe a week ago about sepsis in general and the concerns that I had about any baby who became sepsis [ sic], and I believe it was in our conversation yesterday, that we discussed Klebsiella a little bit more specifically, and the fact is that one of the most notorious microorganisms in newborn medicine for creating these kind of diffuse problems in babies" (Transcript of Trial Proceedings, p. 281).
Given this exchange during direct examination at trial, it is patent that, notwithstanding any present argument to contrary concerning expert disclosure pursuant to CPLR 3101 (d) (1) (i), 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 on the eve of trial. Accordingly, there is no merit to defendants' contention that this court should have permitted their expert to testify about sepsis.
Defendants claim that a statement contained in their expert witness disclosure, "the child's course and condition were dictated by factors which were outside of the control of the defendants" encompasses the claim that the infant plaintiff was subject to an infection. Assuming, arguendo, that such a statement would be allowable notwithstanding the rule in Dalrymple v. Koka against expert testimony in medical malpractice that an existing infection caused the plaintiff's injuries unless said testimony regarding infection was noted in expert witness disclosure, as plaintiffs note, it is not a necessary conclusion that any infection of the infant plaintiff was "outside the control of the defendants".
Also without merit are defendants contentions that plaintiffs' case was not legally sufficient or that the verdict was against the weight of credible evidence or inconsistent. 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" ( Higbie Constr., Ltd. v. IPI Indus., 159 AD2d 558, 559; Lolik v. Big V Supermkts., 86 NY2d 744, 745-746). The Court of Appeals specifically held in Cohen v. Hallmark Cards ( 45 NY2d 493, 498) that 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" ( Id., see also Vecchione v. Amica Mut. Ins., 96 NY2d 708).
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.
Defendants correctly note that their neonatal medicine expert testified that no departures from good and accepted medical practice occurred. Defendants also correctly note that their expert testified that, even if plaintiffs' version of the facts were true, no act or omission of defendants' staff could have caused the present condition of the infant plaintiff. However, 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 . . . [i]ndeed, 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 ( Zapata v. Dagostino, 265 AD2d 324, 325; see also Herring v. Hayes, 135 AD2d 684; Ensign v. New York Life Ins. Co., 204 App Div. 690).
Defendants' argument that the verdict is inconsistent because the jury decided 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. As plaintiff's expert testified (and the jury is permitted to credit his testimony), monitoring the oxygen level through the pulse oximeter was insufficient to determine the total health of the infant plaintiff. The expert testified arterial blood gas analysis, which demonstrated the concentration of other gases besides oxygen present in blood, as well as the pH level of the blood, was required to be done with a greater frequency in order to determine the health of the infant plaintiff. Thus, 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.
With respect to the award, defendants correctly note that some of the jury's award is speculative or excessive. Specifically, plaintiff's economist testified that the "high" value of loss of future earnings of the infant plaintiff is $5,419,085. However, the jury awarded $7,500,000. The excess of this award was not based on any competent evidence or testimony and is thus speculative ( see generally Altman v. Alpha Obstetrics and Gynecology, P.C., 255 AD2d 276). Moreover, the award for future pain and suffering deviated materially from what would be reasonable compensation to the extent it exceeds $3,000,000 ( see e.g. Santiago v. New York City Health and Hospitals Corp., 278 AD2d 220; Royal v. Booth Memorial Medical Center, 270 AD2d 243). In addition, plaintiff's economist testified that the cost of future medical care is $1,978,009 ($4.5 million awarded by the jury), the cost of supplies and equipment to be $738,614 ($557,434 for home equipment and $181,180 for supplies as opposed to $4.5 million awarded by the jury) and $465,920 (the total amounts provided by Dr. Carfi times 16 years, as opposed to $1.5 million awarded by the jury) and the jury's verdict for these categories should be reduced accordingly from a total of $10,500,000 to a total of $3,182,543. Lastly, the award of $6,000,000 for loss of services deviated materially from what would be reasonable compensation to the extent it exceeds $500,000 (see e.g. Cousineau v. Mulbury, 273 AD2d 911; Rodgers v. 72nd Street Associates, 269 AD2d 258).
In sum, the motion is granted solely to the extent that a new trial is ordered on the amount of (a) damages awarded for future pain and suffering unless plaintiffs serve and file in the office of the Clerk of the Supreme Court, Kings County, within 30 days of service upon them of a copy of this decision and order, a written stipulation to reduce the jury award of damages for future pain and suffering from the sum of $4,500,000 to the sum of $3,000,000; (b) damages for future lost earnings unless plaintiffs stipulate to reduce the jury award for future lost earnings from the sum of $7,500,000 to the sum of $5,419,085; (c) damages for medical care, equipment and supplies unless plaintiffs stipulate to reduce the jury award for medical care equipment and supplies from a total of $10,500,000 to a total of $3,182,543; and (d) damages for loss of services unless plaintiffs stipulate to reduce the jury award for loss of services from $6,000,000 to $500,000. The verdict rendered for pain and suffering to date ($75,000) and home/facility care ($3,000,000) remain undisturbed. Plaintiffs' cross motion for an order directing judgment on the verdict is denied. Defendants shall serve a copy of this order with notice of entry on plaintiffs within thirty days of the date of the order.
The foregoing constitutes the decision and order of the court.