Destiny Avila was born at Harlem Hospital on January 5, 2001. It was a difficult delivery – Destiny was 10 pounds and her clavicle had to be forcibly fractured to get her out. Then, she was intubated and sent to the neonatal ICU for two days. Apparently all was well and baby and mother were discharged on January 9, 2001 (four days after birth).
Here is where Destiny Avila’s saga began:
By the time she was three years old, Destiny’s mother noticed she had developmental delays. An evaluation indicated that she had a developmental age of only 10 months. Her mother promptly started a lawsuit in 2004 against the hospital and its doctors claiming medical errors during delivery had caused brain damage to her baby.
After a three week trial in Manhattan Supreme Court, on October 18, 2007 the jury rendered an $8,000,000 verdict in plaintiff’s favor.
In Avila v. City of New York, an appeals court has now set aside the verdict and ordered a new trial because the trial judge erroneously dismissed a juror and seated an alternate after deliberations had begun.
Plaintiff’s medical experts had testified that the doctors should have performed a caesarean section because of the baby’s large size and indications that she was not receiving enough oxygen. They felt that Destiny had sustained hypoxic ischemic encephalopathy (permanent brain injury due to a lack of oxygen or adequate blood flow to the brain) and they concluded she has mild cerebral palsy as a result.
The defendants’ medical experts could not have disagreed more. The said a vaginal delivery was appropriate and that Destiny suffered no significant injuries other than the clavicle fracture and that injury was no one’s fault. Most importantly, they were adamant that Destiny was not suffering from cerebral palsy. Instead, they strongly urged that any medical or developmental problems plaintiff may have had were minimal and/or within the spectrum of a previously diagnosed autism disorder.
The defense urged that the only injury Destiny sustained at birth was a fractured clavicle:
In awarding plaintiff $8,000,000 ($500,000 past – 6 ½ years, $7,500,000 future – 74 years), the jury clearly rejected the defense claims that there was no medical negligence and that the injuries were minimal. While the defense argued that there was no negligence, they did concede that Destiny was 50% globally delayed with speech and language deficits.
On appeal, the defense claimed that:
- plaintiff should not have been allowed to present expert testimony that she had cerebral palsy since this was a brand new never before disclosed theory,
- the trial judge committed an error requiring reversal when, without meaningful inquiry, she seated an alternate juror without defense counsel’s consent after discharging a deliberating juror who claimed there was intimidation inside the jury room, and
- if the verdict on liability should be upheld the amount of damages was grossly excessive and should be reduced
The appeals judges agreed with the defense that the verdict must be reversed because of the juror dismissal and seating of an alternate without consent and they vacated the verdict (thus rendering the other two issues moot).
Here are the details as to the drama inside the jury room. After deliberations began, the lone female juror, “Juror Number 3,” ran out of the jury room and said:
“I’m not going in there again. I am not going to – I’m starting to physically fight and I’m not going to be in the room.”
Things were pretty crazy inside the jury room:
After speaking with the entire panel, the judge sent them back to deliberate further. The day ended with the jury having reached a partial (undisclosed) verdict. The next morning, Juror Number 3 delivered a note to the judge complaining that another juror had been intimidating and threatening and that he physically threatened another juror and yet other jurors had to intervene. Juror Number 3 wrote that she was not comfortable she could make a rational decision in the case.
The judge then dismissed Juror Number 3, seated an alternate juror and a full verdict was reached after four more hours of deliberation.
Alternate jurors are chosen during jury selection so that if, before jury deliberations begin, a regular juror dies or becomes ill or for any other reason is unable to perform his duty, an alternate will be available and seated. There is no provision in the statute, CPLR 4106, that contemplates seating an alternate after jury deliberations begin. That’s because citizens in civil actions have a constitutionally protected right to a jury of six. Only if the attorneys all consent may an alternate be allowed to deliberate after deliberations begin.
Defendants in this case, though, did not consent. Had the judge conducted an inquiry into Juror Number 3’s concerns before discharging her then defense counsel may have consented but the judge’s dismissal of Juror Number 3 without meaningful inquiry was held to be improper and therefore seating of the alternate was also improper.
The question of whether $8,000,000 in damages was excessive was briefed fully by the parties on appeal but not resolved because it became moot. Should plaintiff again prevail on liability, it’s unlikely that such a sum would be sustained.
Here are some of the recent appellate decisions that sustained pain and suffering awards for brain damage in the multi-million dollar range (and plaintiff’s injuries in Avila v. City of New York do not appear to be nearly as severe as those in any of these cases):
- Lopez v. NYCHHC (1st Dept. 2000)- $3,100,000 for 30 years of future pain and suffering where infant suffered cerebral palsy, spastic quadriplegia and inability to speak, sit or walk
- Reed v. City of New York (1st Dept. 2003) – $2,500,000 for 30 years of future pain and suffering for multiple skull fractures and very substantial brain damage leading to memory loss, a permanent inability to lie down, total loss of smell, severe orthopedic disabilities and pain, depression and suicidal ideation
- Paek v. City of New York (1st Dept. 2006) – $3,000,000 for 40 years of future pain and suffering for a 35 year old woman with permanent significant cognitive deficits affecting her memory, attention span and concentration as well as severe depression and constant pain from persistent headaches
- Plaintiff did not seek an award of future damages for medical care. While not dispositive of whether there will be future pain and suffering, where there are no likely future medical costs the claim for future pain and suffering is often discounted by jurors. Not so in this case so far but with another jury that could be a problem for the plaintiff’s future pain and suffering claim.
- Plaintiff, age 6 at trial, had no physical disabilities, a normal gait and was described by her mother as a happy child who likes to dance and play.
- Plaintiff claimed that Destiny will never have functional communication, be able to live independently or hold a job.
- With a new trial, Destiny will have aged a few more years and the new jury will be better able to estimate her future damages, should plaintiff again prevail on liability.