After only 23 1/2 weeks gestation, Zalaya Tart was born prematurely at St. Barnabas Hospital in the Bronx on April 29, 2005. She weighed only 542 grams (1.1 pounds) and was just on the edge of being able to survive.

Zalaya had a host of life-threatening medical problems associated with her extreme prematurity and low birth weight so an arterial line was placed in her right arm to continually monitor her blood pressure and get samples of her blood whenever needed.

An arterial line (not a newborn)

At 3 p.m. the next day, a nurse noted that several fingernails on on Zalaya’s right hand were turning blue, demonstrating cyanosis (a sign of decreased oxygen in the bloodstream).

That evening, doctors removed the arterial line from Zalaya’s right arm and placed it in her left arm. Tragically, though, circulation in the right fingers could not be reestablished and several days later, parts of four fingers on Zalaya’s right hand became gangrenous and fell off.

Zalaya’s right hand was left grossly disfigured with four fingers auto-amputated approximately at the level of the proximal inter-phalangeal joints looking similar to the middle diagram in column A below (a grainy photograph of the exhibit that is part of the trial record in the ensuing lawsuit can be seen, here):

Kia Bynoe, Zalaya’s mother, brought a lawsuit claiming that the care her daughter received at the hospital was negligent and caused the loss of her fingers. On March 19, 2012, the Bronx County jury found that there had indeed been malpractice and the jury awarded pain and suffering damages in the sum of $4,500,000 ($300,000 past – seven years, $4,200,000 future – 68 years).

Now, in Tart v. New York Bronx Pediatric Medicine, P.C. (1st Dept. 2014), the liability finding has been affirmed; however, the appeals court agreed with the defense that the damages award was excessive and it ordered a reduction to $1,200,000 ($200,000 past, $1,000,000 future).

Plaintiff’s counsel argued that the award was reasonable emphasizing the fact that Zalaya’s right hand was terribly deformed, she cannot use her right hand at all and that two hands are needed¬† to perform many of life’s activities that are taken for granted which Zalaya could not do, such as buttoning a shirt, tying a shoelace, putting on a belt, fastening a bra and brushing hair.

The defense argued that the pain and suffering award was excessive because “absent from plaintiffs’ proof was any evidence that [Zalaya] suffers any significant disability and/or pain and suffering from the loss of parts of four fingers of her right hand.” Further, the defense noted, Zalaya suffered from cerebral palsy, brain damage, hemiparetic gait and other neurological dysfunctions, none of which were attributable to or caused by the failure to remove the arterial line in time but were instead simply the result of Zalaya’s extreme prematurity and concomitant neurological complications and developmental delays.

Inside Information:

  • Ms. Bynoe had been carrying twins. Zalaya’s twin brother died following a pulmonary hemorrhage less than a day after he was born.
  • During deliberations, a juror reported to the trial judge that she was being coerced by other jurors who had already made up their minds and that some jurors had texted messages to outsiders. After the judge spoke with the concerned juror, he told her to return to the jury room and shortly thereafter the jurors reached a verdict. After the trial, the juror thanked the judge and stated: “When I went back, there was a big change among us and we were able to work it out.”
  • The jury rejected plaintiff’s claim that the hospital and its physicians were negligent in failing to administer magnesium sulfate so as to (a) delay labor and (b) prevent pre-term labor and Zalaya’s neurological injuries and related disabilities.
  • While the jury was deliberating, the trial judge had his court officers remove one of the defense lawyers from the courtroom for several minutes. The judge said the lawyer had purposely violated his directive regarding a jury read-back and he was upset with the lawyer’s demeanor in other regards. The judge said: “You have been a problem since day one.” After he was escorted out, the judge said: “Next time I put him in cuffs. Total disservice.”