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Pain and Suffering Limited for Infant Delivery Shoulder Injury


A fetus was noted to have shoulder dystocia prior to delivery. The mother presented to a medical center where a certified nurse midwife (CNM) delivered the infant. During delivery, the CNM applied excessive lateral traction. As a result the infant suffered a permanent brachial plexus injury. The infant sustained mild Erb's palsy, showed no appreciable difference in strength between his right and left arm, had a difference in arm length of 3/4″ which will continue to grow as he gets older, and may need future surgery to correct contractures.

 

The infant sued the CNM and the medical center for medical malpractice. The CNM and medical center wanted to submit evidence to the jury that the infant’s expert had been censured by a private organization for providing false testimony. The infant’s expert denied the conduct. The trial judge did not allow the jury to hear the evidence. At the close of trial, the jury found in favor of the infant. The jury awarded the infant $20,000 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 CNM and medical center’s motion to set aside the jury’s verdict.

 

The New York Supreme Court, Appellate Division, First Department, affirmed 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. The court held that the evidence was sufficient to support the jury's malpractice verdict, the trial court providently exercised its discretion in precluding evidence of infant's expert's prior censure, and the jury verdict awarding $600,000 for future pain and suffering was excessive.

 

The evidence was sufficient to support the jury's malpractice verdict. The infant’s experts opined that the CNM used excessive lateral traction to deliver the infant, who suffered from shoulder dystocia. The excessive lateral traction resulted in a permanent brachial plexus injury. The opinions of the infants' experts were not based solely on the fact that he suffered from a permanent brachial plexus injury. Although the CNM and medical center’s expert reached a different conclusion concerning causation, the jury was free to accord more weight to the testimony of the infant’s experts.

 

The trial court providently exercised its discretion in precluding the evidence of the infant's expert's prior censure. The CNM and medical center failed to establish that the censure, for conduct that the expert denied, had sufficient evidentiary value and some tendency to show moral turpitude to be relevant on 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.

 

The New York Supreme Court, Appellate Division, First Department, affirmed the trial court’s denial the CNM and medical center’s motion to set aside the jury’s verdict, but remanded with regard to the jury’s excessive award of $600,000 for future pain and suffering.

 

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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