Merrill v. Albany Medical Center Hospital

[67] OPINION OF THE COURT Main, J. On August 4, 1977, it was determined that the infant plaintiff (hereinafter plaintiff), then 22 months of age, required major surgery for the removal of a suspected malignant tumor from her right lung. After surgery had proceeded for approximately one hour, plaintiff suffered cardiac arrest. She was resuscitated by defendant Dr. Martin E. McKneally (hereinafter defendant), who enlarged the incision in her chest so as to enable him to manually massage plaintiff’s heart. This procedure restored the heart’s function and despite the incident, the operation proceeded. It was completed about two hours later. However, at its conclusion, plaintiff lapsed into a coma. This condition lasted for two months and was determined to have been caused by a lack of oxygen for at least 5 to 10 minutes during the operation. The consequences were catastrophic, causing plaintiff to suffer severe and diffuse brain damage with marked difficulty with both intellectual and motor functions. In 1979, plaintiff and her mother commenced this action against the following: Albany Medical Center Hospital; Drs. Medha Praham and Rob Roy, resident anesthesiologists attending plaintiff during the surgery; Dr. Alexander McDonald, the hospital’s teaching anesthesiologist; and defendant. At the conclusion of the trial, but prior to summations and submission of the case to the jury, plaintiff’s case against the hospital and the other doctors was settled for the total sum of $2,000,000. The case went to the jury solely as to defendant. The verdict apportioned liability as follows: against the hospital 30%; Dr. Praham 30%; Dr. Roy 30%; Dr. McDonald 7%; and defendant 3%. The total award to plaintiff was $12,393,130 and to her mother $261,556.09. The trial court thereafter reduced the verdicts to $10,393,130 and $177,000, respectively, assessing 3% of each amount to defendant (see, General Obligations Law § 15-108). This appeal by defendant ensued. The sole issue presented on this appeal is whether the verdict is excessive. Plaintiff’s damages were separately stated in response to the trial court’s interrogatories as follows: pain and suffering $1,500,000; loss of future earnings $1,302,928; future medical expenses $2,000,000; custodial care including allowance for nursing care $5,603,309; and rehabilitation services $1,986,893. The mother’s recovery was broken down as follows: medical expenses to date $24,297.90; custodial care to [68] date $37,258.19; and nursing services rendered to date $200,000. It is well settled that a jury’s assessment of damages should not be disturbed unless it is so excessive or inadequate that it shocks the conscience of the court (Welty v Brown, 57 AD2d 1000, appeal dismissed 42 NY2d 995; Good v Mantaibano, 50 AD2d 885). Such a principle, of course, requires careful review of the medical testimony, which in this case was uncontested by any conflicting expert medical testimony. Dr. Martin W. Kremenitzer, a pediatric neurologist and professor of pediatric neurology at Yale University, testified of finding that in plaintiff "we have evidence for a girl with diffuse brain damage with marked difficulty with both intellectual and motor functions; she is spastic * * * she has cerebral palsy; she can’t think; she can’t talk; she can’t ambulate on her own; she will need extensive help from opthalmology, neurology, rehabilitation, physical therapy and special education * * * indefinitely for life”. As to his prognosis of her development even with optimum care, he concluded that "I seriously doubt whether she will walk independently, whether she will be able to, in any way, become employed, whether she will be able to maintain a house, a room, to cook for herself. I don’t think I can think of a single area of functioning where she will be independent.” According to Dr. Jeffrey Schumacher, her attending pediatrician since 11 months after the surgery, plaintiff cannot learn to walk with a walker and she cannot manage a wheelchair. She is suffering spasticity and contractures of leg muscles which produce pain. Continuous therapy is needed to maintain the status quo. If she fails to receive the therapy, she will have many medical complications, ranging from minor things such as heel cord tightening to scoliosis or hip dislocation; Dr. Schumacher testified that plaintiff experiences continuous pain from this condition. In addition, plaintiff is legally blind and cannot watch television or read. According to Dr. Kremenitzer, plaintiff will develop arthritic disease of her spine. Her disabilities and limitations seem unending and, most significantly, her capacity to feel pain and experience suffering is undiminished. She has a life expectancy of 77 years. As the Court of Appeals has noted: "It goes without saying that [the] court, lacking clairvoyance, in evaluating a verdict intended to compensate for a projected long lifetime of pain, suffering, helplessness and all the other tangible and intangible losses that were sure to follow, face[s] an unusually difficult judgmental responsibility, for the fulfillment of which [69] no less than a sophisticated elasticity will ever do. In no two cases are the quality and quantity of such damages identical. As has been pointed out by pragmatists and theorists who have wrestled with the problem of how damages in such cases may justly be arrived at, evaluation does not lend itself to neat mathematical calculation” (Caprara v Chrysler Corp., 52 NY2d 114, 126-127). This jury was in an understandably difficult position and either was overcome with sympathy, and this case would engender sympathy in abundance even from the most calloused sort, or perhaps was aroused by the unsettling incident which occurred just prior to the commencement of the surgery about which no more need now be said, or perhaps felt bound by the testimony of plaintiff’s expert on damages, since it was hardly challenged. For whatever reason, its verdict was excessive and must be reduced. Therefore, the judgment should be modified and a new trial ordered as to the issue of damages only, unless, within 20 days after the service of a copy of the order to be entered herein, plaintiff shall stipulate to reduce the amount of the verdict in her favor to $6,143,130, in which event, the judgment, as so reduced, should be affirmed.