Pain and Suffering Award reduced for Shoulder Injury incurred during delivery

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A pregnant female went into labor and presented to a medical center where a certified nurse midwife delivered the infant. During delivery, the midwife applied excessive lateral traction to the baby. As a result the infant suffered a permanent injury.   In particular, the infant sustained mild Erb’s palsy, had a difference in arm length of 3/4³ which will continue to grow as he gets older, and may need future surgery to correct contractures. Erb’s palsy is a paralysis affecting the arm that is often the result of shoulder dystocia during birth, for instance if the infant’s head and neck are pulled to the side during the birth. Depending on the severity of the injury, the paralysis may be complete or partial, and may require surgery or rehabilitative therapy, or it may resolve on its own over several months

The infant sued the midwife and the medical center for medical malpractice. The midwife and medical center wanted to let the jury know that the infant’s expert had been censured by a private organization for providing false testimony. The infant’s expert denied that he had been rebuked.  The trial judge did not allow the jury to hear this argument.  At the close of trial, the jury found in favor of the infant. The jury awarded the infant $20,000.00 for past pain and suffering, $600,000 for future pain and suffering for 20 years, and $380,000 in future lost earnings for 38 years. The Bronx County Supreme Court denied the midwife and medical center’s motion to set aside the jury’s verdict.

The New York Supreme Court, Appellate Division, First Department, agreed with the lower court in the denial of the motion to set aside the jury’s verdict, but remanded with regard to the amount of the future pain and suffering award. In particular, the court held that the evidence was good enough to support the jury’s verdict, the trial court exercised its latitude in prohibiting evidence of the infant’s expert’s prior rebuke, but the jury verdict awarding $600,000 for future pain and suffering was excessive.

As to addressing the infant’s medical expert, the Court found the trial court exercised its discretion in precluding the evidence of the infant’s expert’s prior censure. The midwife and medical center failed to establish that the censure for conduct that the expert denied, and had failed to provide evidentiary value and some tendency to show a lack moral turpitude regarding the credibility issue.

The jury verdict awarding $600,000 for future pain and suffering was excessive. The infant suffered from a mild form of Erb’s palsy as a result of the CNM’s negligence. The sum of $600,000 for future pain and suffering deviated materially from what would be reasonable compensation. The court remanded for a new trial solely on the issue of damages for future pain and suffering, unless the infant stipulated to reduce that award to $300,000.

See: Delgado v. Murray, 2014 WL 813974, 2014 N.Y. Slip Op. 01416 (N.Y.A.D. 1 Dept., March 04, 2014) (not designated for publication).

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