| Sankar v Jamaica Hosp. Med. Ctr. |
| 2009 NY Slip Op 09205 [68 AD3d 844] |
| December 8, 2009 |
| Appellate Division, Second Department |
| Hyvia Sankar, Appellant, v Jamaica Hospital MedicalCenter et al., Respondents. |
—[*1] Martin Clearwater & Bell LLP, New York, N.Y. (Arjay G. Yao and Kenneth R. Larywon ofcounsel), for respondents.
In an action to recover damages for medical malpractice, the plaintiff appeals, on the groundof inadequacy, from a judgment of the Supreme Court, Queens County (Weiss, J.), entered June9, 2008, which, upon a jury verdict awarding her the sums of only $40,000 for past pain andsuffering and $140,000 for future pain and suffering, is in favor of her and against thedefendants, Jamaica Hospital Medical Center and Linda Mae Belstein, in the principal sum ofonly $20,000, reflecting the application of General Obligations Law § 15-108 to thesettlement of her cause of action against another defendant for the sum of $160,000.
Ordered that the judgment is reversed, on the facts and in the exercise of discretion, withcosts, and the matter is remitted to the Supreme Court, Queens County for a new trial on theissue of damages for future pain and suffering unless within 30 days after service upon thedefendants of a copy of this decision and order, the defendants shall serve and file in the office ofthe Clerk of the Supreme Court, Queens County, a written stipulation consenting to increase theverdict as to damages for future pain and suffering to the principal sum of $240,000, and to theentry of an amended judgment accordingly; in the event the defendants so stipulate, then thejudgment, as so increased and amended, is affirmed insofar as appealed from, without costs ordisbursements. The jury verdict insofar as it awarded the sum of $40,000 for past pain andsuffering is affirmed.
As a result of the defendants' negligence, the plaintiff, an infant, suffers from a mild form ofErb's palsy. The plaintiff's expert testified that the plaintiff's disability is a limited one, related toelevating her left arm above her head and moving her left arm away from her body. Specifically,she can only elevate her arm to between 160 and 170 degrees, instead of to a full 180 degrees.Nonetheless, this is a permanent injury she will have to live with for the rest of her life, which isexpected to be another 70 years. While there is no difference in the length of her arms, and noatrophy in the left arm, the plaintiff has scapula winging, where her shoulder blade sticks outfrom her back when she moves her arms. According to the plaintiff's expert, the scapula wingingcondition is an indication of shoulder weakness that will pose difficulties for the plaintiff innumerous activities which require elevating her arm above her head.[*2]
Under the circumstances, the jury award of $140,000 forfuture pain and suffering deviated materially from what would be reasonable compensation(see CPLR 5501 [c]; cf. Charles v Day, 289 AD2d 190 [2001]).
The plaintiff's remaining contentions are without merit. Dillon, J.P., Dickerson, Belen andRoman, JJ., concur.