| Skelly-Hand v Lizardi |
| 2013 NY Slip Op 07895 [111 AD3d 1187] |
| November 27, 2013 |
| Appellate Division, Third Department |
| Susan Skelly-Hand et al., as Parents and Guardians ofRachel Elizabeth Hand, an Infant, Respondents-Appellants, v Jose Lizardi,Appellant-Respondent. |
—[*1] The Mills Law Firm, LLP, Clifton Park (Christopher K. Mills of counsel), forrespondents-appellants.
Garry, J. Cross appeals from an order and judgment of the Supreme Court (Demarest,J.), entered November 19, 2012 in St. Lawrence County, upon, among other things, averdict rendered in favor of plaintiffs.
Plaintiffs are the parents of Rachel Elizabeth Hand (hereinafter the child) who wasdelivered in 1996 by defendant, an obstetrician-gynecologist. A complication known asshoulder dystocia, in which the child's shoulder becomes lodged against the mother'spubic bone, occurred during the delivery. The child was born with an injury to herbrachial plexus—a group of nerves running from the neck into herarm—and was diagnosed with Erb's palsy. Plaintiffs commenced this medicalmalpractice action in January 2012. Following a trial, a jury returned a verdict inplaintiffs' favor. Defendant moved to set aside the verdict, and plaintiffs cross-moved toset aside the verdict as to damages. Supreme Court denied both motions, and plaintiffswere awarded judgment in a total amount of approximately $3,150,000. Defendantappeals and [*2]plaintiffs cross-appeal.
To sustain a finding of medical malpractice, there must be "proof that [the]defendant[ ] deviated from accepted medical practice and that such deviation was theproximate cause of [the] plaintiff's injury" (Adams v Anderson, 84 AD3d 1522, 1523 [2011]; see Dentes v Mauser, 91 AD3d1143, 1144 [2012], lv denied 19 NY3d 811 [2012]). Here, defendantcontends that plaintiffs did not establish that the child's injury was proximately caused bydefendant's failure to deliver her by cesarean section, and that Supreme Court thus erredin denying his motion to set aside the verdict. We disagree. Plaintiffs' expertobstetrician-gynecologist, Lawrence Borow, testified that physicians should seek topredict and avoid shoulder dystocia by evaluating various risk factors, the most importantof which is the baby's birth weight. Borow stated that a significant risk factor forshoulder dystocia is a birth weight of more than 8 pounds 13 ounces, and that this riskfactor was applicable to the subject child, who weighed nine pounds, two ounces at birth.Prior to the delivery, defendant had estimated—based upon his measurements andan ultrasound examination—that the child weighed less than eight pounds, and hebased his decision not to call for a cesarean section in part upon this estimate. Borowtestified that all such estimated weights are subject to a margin of error of 15%, andopined that in view of other risk factors present in this case—such as the mother'sshort stature, the father's relative height of well over six feet, the mother's weight and thebirth weight of the parents' older child—defendant should have recognized that thechild's true weight could be substantially greater than his estimate, resulting in asignificant risk of shoulder dystocia. Finally, Borow noted that the mother's labor failedto progress after an initial four-hour "trial." Based upon all of these factors, he opinedthat defendant should have made the decision to deliver the child by cesarean section,that his failure to do so deviated from the accepted standard of care, and that this failureproximately caused the child's injury. The jury apparently accepted this opinion, findingthat defendant deviated from the standard of care by failing to prepare for and perform acesarean section and that this failure was a substantial factor in bringing about the child'sinjury.
As defendant contends, Borow also opined that defendant used an impropertechnique in delivering the child and that this technique was the specific cause of thechild's brachial plexus injury. The jury apparently rejected this opinion, finding thatdefendant did not deviate from the standard of care by using the technique in question.However, we disagree with defendant that this jury determination precludes a conclusionthat defendant's negligence was the proximate cause of the injury. In order to proveproximate cause, plaintiffs were required to provide expert testimony establishing that itwas more likely than not that defendant's breach caused the child's injury, but were notobliged to eliminate all other potential causes (see Lang v Newman, 54 AD3d 483, 487 [2008],affd 12 NY3d 868 [2009]; Turcsik v Guthrie Clinic, Ltd., 12 AD3d 883, 886 [2004];Villa v City of New York, 148 AD2d 699, 701 [1989]). Here, the medicaltestimony established that the child's injury would not have occurred had the shoulderdystocia been avoided by performing a cesarean section. In addition to Borow's opinionto this effect, the child's treating surgeon—a specialist in brachial plexusinjuries—testified that the main cause of such injury is shoulder dystocia and thatthe child's injury was related to this condition. Even defendant's expert opined that theinjury was caused by "[t]he forces of labor." Viewing this testimony in the light mostfavorable to plaintiffs, it cannot be said "that there is simply no valid line of reasoningand permissible inferences which could possibly lead rational [people] to the conclusion"that the child's injuries were proximately caused by defendant's failure to deliver her bycesarean section (Imbierowicz vA.O. Fox Mem. Hosp., 43 AD3d 503, 505 [2007] [internal quotation marks andcitations omitted]; see Swartz vSt. Mary's Hosp. of Amsterdam, 101 AD3d 1273, 1276 [2012], lvdenied 21 NY3d 859 [2013]; Lang v Newman, 54 AD3d at 487). Further,[*3]giving due deference to the jury's credibilityassessments and resolution of the conflicting expert testimony, we cannot say that theevidence regarding proximate cause preponderated so strongly in defendant's favor thatthe jury's conclusion could not have been based on any fair interpretation of the evidence(see Biello v Albany Mem.Hosp., 49 AD3d 1036, 1037-1038 [2008]; compare Dentes v Mauser,91 AD3d at 1146).
Defendant next contends that the damage awards of $1 million for the child's pastpain and suffering and $1 million for her future pain and suffering should be set aside asunreasonable, while plaintiffs contend that the award for future pain and suffering shouldbe increased. The amount of a damage award for personal injuries is a factual question tobe resolved by the jury and is set aside only when the award "deviates materially fromwhat would be reasonable compensation" (CPLR 5501 [c]; see Vogel v Cichy, 53 AD3d877, 878 [2008]). This Court accords deference both to the jury's damage assessmentand to the trial court's decision on a motion to set aside a verdict assessing damages (see Ciuffo v Mowery Constr.,Inc., 107 AD3d 1195, 1198 [2013]; Felitti v Daughriety, 12 AD3d 909, 910 [2004]). As awardsfor pain and suffering cannot be precisely quantified, the reasonableness of such awardsis measured by reviewing comparable cases, and analyzing such factors as "the nature,extent and permanency of the injuries, the extent of past, present and future pain and thelong-term effects of the injury" (Nolan v Union Coll. Trust of Schenectady, N.Y., 51 AD3d1253, 1256 [2008], lv denied 11 NY3d 705 [2008]; see Ciuffo vMowery Constr., Inc., 107 AD3d at 1197).
Many of the decisions involving brachial plexus birth injuries upon which defendantrelies in arguing for a reduction of the award are unhelpful as they fail to indicate theseverity of the underlying injury (see Abdelkader v Shahine, 66 AD3d 615, 616-617 [2009];Miller v Weisel, 15 AD3d458, 458-459 [2005]; Reid v County of Nassau, 215 AD2d 466, 466-467[1995]; Sutherland v County of Nassau, 190 AD2d 664, 664-665 [1993], lvdenied 81 NY2d 710 [1993]; Stackhouse v New York City Health & Hosps.Corp., 179 AD2d 357, 357-358 [1992]), while others describe the injury as mild (see Sankar v Jamaica Hosp. Med.Ctr., 68 AD3d 844, 844-845 [2009]; Charles v Day, 289 AD2d 190, 191[2001]). In arguing for an increased award, plaintiffs rely primarily upon a decision thatreduced a jury award for future pain and suffering to $2,950,000 in a case involving athree-year-old with Erb's palsy (see Harding v Onibokun, 14 Misc 3d 790, 798 [Sup Ct,Jefferson County 2006]).
Here, the evidence fully established the severe impact of the child's injury. Thechild's treating surgeon—whose practice is limited to brachial plexusinjuries—described her injury as "more severe" than most of those he has treated.Other providers testified that her arm and shoulder function is severely limited and that itis difficult or impossible for her to do tasks requiring the use of two hands. The child,who was 16 years old at the time of trial, underwent extensive and often painful oruncomfortable medical treatments and therapies throughout her childhood, including fivesurgeries and lengthy periods of wearing braces, splints or casts on her injured arm.Additionally, she wore a back brace to treat scoliosis syringomyelia, a condition causallyrelated to her brachial plexus injury. There was evidence that her appearance, socialadjustment and self-confidence had been affected and that her surgeries and treatmentshad at times prevented her from attending school. With assistance, she can participate incertain recreational activities, including horseback riding, but she is completelyprecluded from engaging in many other athletic pursuits by the injury's effects on herstrength, balance and coordination. The evidence established that she will require variousmedical treatments and therapies indefinitely, and that her continuing need for assistancewith basic activities of daily living such as bathing, grooming and dressing will restricther future opportunities and permanently limit her [*4]independence. Considering this evidence, and upon reviewof the previously-discussed damage awards for brachial plexus injuries as well as reviewof cases involving other significant impairments to the shoulder and arm (see e.g. Garrow v Rosettie Assoc.,LLC, 60 AD3d 1125, 1125-1126 [2009] [and cases cited therein]), we do notfind that the damages awarded for past and future pain and suffering materially deviatefrom the range of reasonable compensation (see CPLR 5501 [c]; Garrison v Lapine, 72 AD3d1441, 1443 [2010]). Supreme Court properly declined the parties' respectiverequests to modify the jury's award.
Stein, J.P., McCarthy and Spain, JJ., concur. Ordered that the order and judgment isaffirmed, without costs.