Maria D’Alessio by her g.a.l. Carmela D’Alessio v. Methodist Hospital of Brooklyn

Maria D’Alessio by her g.a.l. Carmela D’Alessio v. Methodist Hospital of Brooklyn

BRAIN DAMAGE

Kings, NY

$26,000,000, reduced as excessive by the trial judge to $ 5,000,000

$5,000,000.00

VIII/46-8 MEDICAL MALPRACTICE — FAILURE TO DIAGNOSE RENAL FAILURE IN 2-MONTH-OLD — SEVERE BRAIN DAMAGE — REMITTITUR

Maria D’Alessio by her g.a.l. Carmela D’Alessio v. Methodist Hospital of Brooklyn 31000/83 12-day trial Verdict 11/30/90 Judge Joseph S. Levine, Kings Supreme

VERDICT: $26,000,000, reduced as excessive by the trial judge to $ 5,000,000 in a 3-page post-trial decision dated 4/10/91. Liability: Methodist Hospital 65%; Dr. William Owens (Pltf.’s treating pediatrician, original Deft. before declaring bankruptcy; he died before trial) 35% negligent. Breakdown: $6,000,000 for future pain and suffering for 35 years (reduced to 2,500,000); $12,000,000 for future custodial care ( reduced to $2,000,000); $8,000,000 for future therapy (reduced to $500,000 ). Judge Levine also ruled that Deft. was entitled to a reduction of 35% for the percentage of liability assigned by the jury to Dr. Owens, Pltf.’s private treating pediatrician. This action subsequently settled for a structured settlement with a present value of $4,000,000. See below. Jury: 2 male, 4 female.

Pltf. Atty: John E. Fitzgerald of Fitzgerald & Fitzgerald, Yonkers

Deft. Atty: Eugene McGarry of O’Brien, McGarry, Murtagh & Mayr, Rockville Centre

Facts: Pltf. was born on 8/30/71. She had dysmorphic facial features and an abnormality on chromosome #20. She was admitted to Deft. Hospital (65% liable) at 10:30 AM on 11/6/71 vomitting and suffering from diarrhea. She also had a fever for 3 days. Pltf. was diagnosed with bronchopneumonia and an IV and stat blood gas tests were ordered by a resident. The IV was started at 12:30 PM and electrolytes and blood gases were taken at 2:18 PM and at 5 PM, respectively. Pltf. claimed that when she was admitted to the hospital, the infant was suffering from moderate hypernatremic dehydration and impending shock. Pltf. contended that Deft. ‘s failure to note the child’s recent urine output and its failure to examine the mucous membranes was a departure from accepted medical practice. Pltf. contended that a BUN reading of 40 at 2:18 PM should have alerted Deft.’s residents to renal failure.

Pltf. contended that the hypernatremic dehydration was not diagnosed until 4:30 PM, when the child was comatose secondary to hypovolemic shock. Pltf.’s expert contended that Deft.’s fluid therapy was too low and that the hypotonic solution should have included human albumin. Pltf. argued that Deft.’s failure to record the child’s intake-output made it impossible to monitor her hydration, and Pltf. lost an additional 3 oz. in weight and body water during the first 24 hours that she was hospitalized. Pltf. also contended that Deft. was negligent for failing to provide a physician to supervise its residents.

Deft. contended that Pltf.’s private treating pediatrician, Dr. William Owens (35% liable, discontinued before trial), should have admitted her to the hospital sooner. Deft. also argued that Dr. Owens was responsible for the child’s care, and produced countersigned resident notes and orders. Dr. Owens had testified at his deposition that Pltf. was a service patient of the hospital.

Injuries: profound mental retardation; mild cerebral palsy; seizure disorder. Pltf. was age 20 at the time of trial and is ambulatory. Deft. argued, through the testimony of a geneticist, that Pltf.’s mental retardation was caused by her chromosomal abnormality. On cross- examination, this expert conceded that when Downs Syndrome and sex chromosome abnormalities (neither of which Pltf. had) are excluded, only 1% of institutionalized mentally retarded people have a chromosomal abnormality. (Note: Down’s Syndrome is related to an abnormality of chromosome #21; Pltf.’s abnormality was in chromosome #20.) Offer: $2,250, 000 (policy limit); demand: $3,275,000. Pltf. Experts: Dr. William E. Homan, pediatrician, White Plains; Dr. Harvey Bennett, pediatric neurologist, Brooklyn; Edmond Provder, rehabilitation and vocational expert, Manhattan; Seymour Barcun, Ph.D., economist, Edison, New Jersey. Deft. Experts: Dr. John Branche, pediatrician, Hempstead; Dr. Bhim Sen Nangia, pediatric neurologist (treating physician at the time of the alleged malpractice), Staten Island; Dr. Jessica Davis, geneticist, Manhattan; Meira Shahan, Ph.D., geneticist, Manhattan.

In a 3-page post-trial decision dated 4/10/91, Judge Levine reduced the award to $5,000,000 as excessive. He then ruled that under Killen v. Reinhardt, 71 A.D.2d 851, 419 N.Y.S.2d 175, Deft. was entitled to a 35% reduction assigned by the jury for Dr. Owens’ liability. “The fact that the plaintiff discontinued her claim against Dr. Owens without receiving a monetary settlement does not remove the case, particularly under the circumstances present here, from applications of General Obligations Law ? 15-108.” Decision at p. 3. The court also noted that this case “falls into the gap” in that CPLR ? 50-A (requiring a present value calculation) did not apply. He noted that, to avoid a “potential windfall judgment” for Pltf. ” . . . some courts have ruled that the only solution to this dilemma is the trial court’s power to deal appropriately with excessive verdicts.” Id., citing Hudson v. MABSTOA, ___ Misc.2d ___, NYLJ 12/24/90 [see NYJVR VIII/24-1] (J. Gammerman). The case then settled for a structured settlement with a present value of $4,000,000. Settlement apportionment: $1,879,020 payment up front, plus monthly payments of $7,000 per month guaranteed for 20 years and increasing at 3% per year, and lump sum payments totalling $1, 000,000. During jury deliberations, Hartford Insurance Co., Deft.’s insurance company, offered its policy limit of $2,250,000, which Pltf. rejected.