DEFENDANTS’ MOTION TO SET ASIDE THE VERDICT FINDING LIABILITY IN THIS MEDICAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN GRANTED, PLAINTIFF’S MOTION TO SET ASIDE THE VERDICT AWARDING NO DAMAGES FOR PAST AND FUTURE PAIN AND SUFFERING OR FUTURE LOST WAGES SHOULD HAVE BEEN GRANTED, PLAINTIFF ALLEGED HER CHILD WAS INJURED IN UTERO (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that defendants’ motion to set aside the verdict finding liability in this medical malpractice action should not have been granted, and the plaintiff’s motion to set aside so much of the verdict as awarded no damages for past or future pain and suffering or future lost earnings should have been granted. The action alleged damage to plaintiff’s child in utero:

Here, the plaintiff adduced legally sufficient proof to establish a departure from the standard of care and as to causation. In particular, the plaintiff’s expert obstetrician-gynecologist, Barry Schifrin, opined that the child suffered a placental “abruption plus or minus fetomaternal transfusion,” which caused “a problem of oxygen availability in the baby’s brain.” Schifrin opined that continuous EFM testing should have been undertaken beginning on the date of the mother’s fall, November 4, 2008. Schifrin testified that the EFM performed on November 12, 2008, showed that the child had been in distress for “quite some time.” The plaintiff’s expert pediatric hematologist, Jill DeJong, opined that the child’s anemia was related to a fetomaternal transfusion. Based on that evidence, the jury could have reasonably found that had the respondents undertaken or begun continuous EFM on November 10, 2008, the harm to the child would have been avoided or mitigated. Further, although the respondents’ experts opined that the respondents did not depart from accepted practice, the jury was entitled to resolve the conflicting expert testimony in the plaintiff’s favor  … . Accordingly, the Supreme Court should not have granted that branch of the respondents’ motion which was to set aside the jury verdict on the issue of liability and for judgment as a matter of law … .

The jury’s failure to award any damages for past pain and suffering and future pain and suffering deviates materially from reasonable compensation, in light of the evidence of the severe deficits suffered by the child, her ongoing need for medical treatment, ongoing medical events such as intractable seizures, and evidence of her consciousness and ability to interact with others (see CPLR 5501[c] …). The jury’s failure to award any damages for future lost earnings also deviates materially from reasonable compensation … . Larkin v Wagner, 2019 NY Slip Op 02327, Second Dept 3-27-19