Tragedy struck on January 28, 2004 when four year old Nico Rivera died. He’d fallen ill on December 22nd with what appeared to be flu-like symptoms and over the next 4 1/2 weeks, his parents took him several times both to and from his pediatrician’s office and the hospital. After his second seizure, Nico stopped breathing, his father resuscitated him and an ambulance returned him to the hospital but he died that day.

Autopsies indicated that the cause of death was acute myocarditis (an inflammation of the muscular wall of the heart).

Nico’s parents sued (Rivera v. Greenstein, Supreme Court, Bronx County, Index # 26799/04) claiming that the pediatrician was negligent in her failure to have ordered heart-related tests that would have discovered the cardiac involvement and that had these tests been done Nico would have received the medical care he needed to survive.

On December 9, 2008, the Bronx County jury found that:

  • the pediatrician was negligent in failing to order a cardiac evaluation and  certain tests (a CK-MB test, an EKG and a serum troponin test) and that these failures were substantial factors in causing Nico’s death
  • $3,000,000 was fair and just compensation for Nico’s  4 1/2 weeks of pain and suffering

Here is a copy of the actual verdict sheet completed by the jurors.

The defense asked the judge to dismiss the complaint notwithstanding the verdict or, alternatively, to reduce the damages award because it was excessive. In his post-trial decision, the judge determined that the liability verdict was proper; however, he opined that the $3,000,000 pain and suffering award was "a classic case of a runaway jury" and that it should be reduced to $300,000. The judge cited no cases in support of the reduction.

On appeal this week in Rivera v. Greenstein (1st Dept. 2010), the entire case against the pediatrician has been dismissed on liability grounds. The appellate judges, in an unusually detailed opinion discussing complicated medical facts, ruled that there was no evidence that the doctor departed from accepted medical standards in failing to order the cardiac tests because:

  1. the tests she did perform and Nico’s symptoms could also indicate problems with other areas of his body and
  2. all of the tests she did perform indicated a normal heart

Additionally, as a separate basis for dismissing the case, the appellate judges found that plaintiff had failed to establish proximate cause. In medial malpractice cases, this is often referred to as the "so what" defense – meaning that even if there was mistreatment the plaintiff must link up that negligence with the claimed injury in order to win at trial.

Here, plaintiff did not present evidence as to what care Nico should have received for his presumed heart condition that would have made a difference. The failure to show what the doctor could have done to save Nico had she discovered myocarditis meant that proximate cause was lacking and the verdict could not stand.

Here is PJI 2:70, the pattern jury instruction language New York judges use regarding the meaning of proximate cause.

Had the liability verdict been upheld, there is little doubt but that the $3,000,000 pain and suffering verdict would have been reduced and some figure closer to the $300,000 ordered by the trial judge would have been assessed by the appellate judges. 

Without in any way suggesting that the death of this young boy was not tragic or that he did not suffer a great deal, prior case law indicates clearly that $3,000,000 was excessive under the facts in this case in which during all or some of 4 1/2 weeks before his death, Nico’s pain and suffering included:

  • unable to sit, walk or stand on his own
  • had to be fed by his parents
  • did not talk
  • cried often
  • sustained two seizures

There is little case law as to pain and suffering damages analogous to this case; however, there have been a few cases (most of which we discussed here, here, here and here) that would give some guidance as to a sustainable figure for Nico Rivera’s pre-death pain and suffering:

  • Frenchman v. Westchester Medical Center (2d Dept. 2010) – $1,000,000 in medical malpractice case; 7 1/2 months of constant pain, morphine use and fear of death
  • Dowd v. New York City Transit Authority (2d Dept. 2010) – $1,200,000 in a bus-pedestrian accident case; 18 minutes from impact to death; legs partially amputated, crush injuries, fear of impact and death
  • Perez v. St. Vincents Hospital (2d Dept. 2009) – $800,000 in medical malpractice case; 30 minutes of choking on food
  • Ramos v. Shah (2d Dept. 2002) – $450,000 in medical malpractice case; 10 days of pain from dehydration
  • Johnson v. Queens Long Island Med. Grp. (2d Dept. 2000) – $1,200,000 in medical malpractice case; 12 weeks of stomach pain and vomiting, need for colostomy and seizures
  • Hoehmann v. Siebkin (2d Dept. 2007) – $525,000 in medical malpractice case; 10 days of pain from massive inflammation of colon and multiple organ failure

In Nico Rivera’s case, there was no evidence that he was aware of or feared his impending death, significant factors present in each of the foregoing cases.

Inside Information:

  • Plaintiffs settled before trial for $150,000 their claims against a neurologist who’d treated Nico years earlier for a suspected neurogenic disorder and who examined Nico and ordered a brain MRI a few days before Nico died.
  • There were two autopsy reports, both of which stated that on gross inspection the heart appeared normal.  One report (from the hospital) found microscopic evidence of focal myocyte necrosis (muscle cell death) on 2 of 34 slides and stated therefore that myocarditis was the cause of death. The other report (from the city’s medical examiner) did not find myocyte damage but stated the cause of death was myocarditis based on the hospital slides.
  • There was only one mention in any medical records as to pain Nico suffered from before he died – the day after the pediatrician first saw him, she noted that he appeared "uncomfortable when legs touched."
  • Plaintiffs’ attorney was Elsa Rodriguez Preston; the pediatrician was represented by Schiavetti, Corgan, DiEdwards, Weinberg & Nicholson (Carl Weinberg at trial and Samantha E. Quinn on appeal).