On October 15, 1998, Eung Maing, then 37 years old and 41 weeks pregnant with her first child, was admitted to St. Vincent’s Hospital in Queens, New York. The doctors determined that she had insufficient amniotic fluid and labor should be induced.

After a difficult 24 hours or so, a low forceps delivery was performed and baby Daniel was born.

His Apgar score was one out of 10 because of a faint heartbeat so Daniel was intubated and taken to the intensive care unit where he remained for six days. Upon discharge, he appeared to be in good shape. Two years later, though, Daniel’s parents noticed that he had an abnormal gait and he was diagnosed with mild cerebral palsy.

Mrs. Maing had her own medical problems. During the course of delivery she sustained a fourth degree laceration of her vagina that extended to her rectum. It was repaired in the hospital but she later developed a rectovaginal fistula and other extensive and long lasting gastrointestinal problems.

In an ensuing lawsuit against the hospital and the doctors, plaintiffs claimed that:

1. the doctors were negligent in their repair of Mrs. Maing’s vaginal laceration and
2. Daniel should have been delivered via Cesarean section, like this:

As a result of the malpractice, plaintiffs claimed and in 2008 the jury agreed:

1. Daniel had sustained brain damage in his forceps delivery that left him with left side hemiparesis causing his walking problems as well as attention deficit disorder, and
2. Mrs. Maing had sustained permanent incontinence resulting in nine surgeries, including a diverting colostomy and the ultimate need of a permanent colostomy.

Daniel was awarded $7,150,000 for his pain and suffering ($150,000 past – 10 years, $7,000,000 future – 65 years) and Mrs. Maing was awarded $11,000,000 ($4,500,000 past, $6,500,000 future – 34 years).

On a post-trial motion, the trial judge issued a decision reducing the awards in Maing v. Fong as follows: to $2,650,000 for Daniel ($150,000 past, $2,500,000 future) and to $5,000,000 for Mrs. Maing ($2,000,000 past, $3,000,000 future).

In an appellate court decision released on March 30, 2010 in Maing v. Fong (2nd Dept. 2010), Mrs. Maing’s $5,000,000 pain and suffering award was affirmed while Daniel’s $2,650,000 award was deemed inadequate and increased to $4,150,000 ($150,000 past, $4,000,000 future).

Once again, New York judges have rendered decisions involving very serious injuries in which, without any adequate explanation, they ordered millions of dollars of modifications to jury verdicts for pain and suffering. The trial judge’s decision fails to state the reasons for reducing Mrs. Maing’s $11,000,000 jury award for her pain and suffering to $5,000,000; nor does the appellate court decision that affirmed that $6,000,000 reduction. And neither decision set forth any reason for disturbing Daniel’s future pain and suffering award (the trial judge reduced it from $7,000,000 to $2,500,000 while the appellate judges then increased it to $4,000,000).

Our research team at New York Injury Cases Blog has dug up the facts that the judges refused to divulge ( the foregoing details as to the injuries were not disclosed in either opinion) and we have uncovered the legal arguments made by the parties and the case precedents that applied.

The defense argued that Daniel’s future pain and suffering award was excessive, his injuries were more akin to an orthopedic problem than to brain damage and any characterization of Daniel’s case to the plethora of “brain damaged infant” cases (that often result in multimillion dollar verdicts) would be woefully misplaced. While Daniel was in poor condition at birth, he responded well to treatment and was discharged from the hospital after one week.

Daniel appeared to be developing normally until he was 2 ½ years old when a left foot inversion and weak left lower extremity dorsiflexion were noted. He underwent physical therapy, wore a foot brace and by the age of five he was rollerblading.

At trial, there was evidence that Daniel was an outstanding student with an IQ in the 97th percentile and he could run and had a normal gait except for inversion of his toes that was diagnosed as tibial torsion – a usually temporary early childhood condition in which the tibia is twisted inwards and looks like this:

Daniel’s lawyers argued that he has mild cerebral palsy but with profound consequences that will get worse as he gets older. They exhibited Daniel’s walk to the jury and, while not dramatic, they argued that it is awkward, he has a slight limp and he can’t play sports. His parents said he avoids using his left hand.

As to Daniel’s mental condition, a neuropsychologist testified that he has major attention and behavioral problems, is hyperactive and very impaired in his ability to handle daily living tasks. The expert acknowledged that Daniel is smart but concluded that he has moderate to severe attention deficit disorder which is permanent and will get worse.

The law (CPLR 5522) requires appellate courts to identify the reasons for their decisions in cases where they modify a pain and suffering damages verdict under their powers in CPLR 5501. They should look to comparable prior cases when adding to or reducing from a jury verdict. If any of them did so in Maing v. Fong, we have no indication.

Here are some recent cases in which significant awards were sustained on appeal for injuries similar to Daniel’s that the judges in his case failed to cite or discuss in their opinions:

• Lovett v. Interfaith Medical Center (2nd Dept. 2008) – $4,575,000 for a six year old who suffered brain damage at birth causing cerebral palsy, spastic diplegia, mental retardation, sleep apnea and motor skill deficits. He cannot communicate and is wheelchair bound.
• Flaherty v. Fromberg (2nd Dept. 2007) – $4,250,000 for a seven year old who suffered brain damage at birth causing cerebral palsy and spastic quadriplegia. He is fed by a tube and is totally dependent on his family and caretakers.

As to Mrs. Faing, the defense had little to rebut the gruesome nature of her injuries and treatment. It had been 10 years during she’d been undergoing surgery after surgery (nine in all) to try to remedy her incontinence (the details of which are very unsettling) and there was credible testimony that she’s going to need a permanent colostomy. The issue, therefore, was not so much the severity of Mrs. Faing’s pain and suffering but what figure represents reasonable compensation. Was it $11,000,000 as the jury said? Or $5,000,000 as the judges said? Or something more or less?

Here are some recent cases in which significant awards were sustained on appeal for injuries similar to Mrs. Faing’s that the judges in her case failed to cite or discuss in their opinions:

• Salmeri v. Beth Israel Medical Center (2nd Dept. 2007) – $1,820,000 for a 49 year old man who underwent four surgeries due to malpractice in treating his acute perforated diverticulum, suffered daily stomach pain, had to wear an abdominal binder and suffered from a fistula in his stomach.
• Herrera v. St. Martin (2nd Dept. 2006) – $3,000,000 for a 55 year old woman with total paralysis of her lower extremities and incontinence.
• Beverly H. v. Jewish Hosp. and Med. Center of Brooklyn (2nd Dept. 1987) – $700,000 for a woman who underwent an episiotomy during delivery of her child and over the next 18 months required four surgeries including a colostomy.

Inside Information:

• Mr. Faing presented a claim for loss of consortium. The jury rejected it and awarded him nothing at all. The trial judge found that $1,000,000 should have been awarded to Mr. Faing and the appellate court agreed.
• In Capone v. Ciancolo (Supreme Court, Kings County, Index # 37310/06; 2/27/10), a $5,000,000 jury verdict was rendered for pain and suffering in favor of a 48 year old man in a car accident who sustained a laceration of his colon requiring a colostomy (removed after eight weeks) and a hernia that required surgery. No doubt, the parties in that case will now look to the decision in Maing v. Fong in arguing for a reduction or affirmance of the verdict amounts.