Shannon Reilly was born on November 1, 2002 at St. Charles Hospital in Port Jefferson. Doctors quickly noticed Shannon was suffering seizures and she was later determined to be suffering from cerebral palsy.
In the ensuing lawsuit against the hospital and the obstetrician, Shannon’s parents claimed that her delivery was improperly managed allowing a hypoxic event to occur causing brain damage and cerebral palsy.
The case was tried three times in Suffolk County.
- In 2009, the jury rendered a defense verdict. On appeal, the dismissal as to the physician was affirmed but the case was reinstated as to the hospital.
- In a 2012 retrial, the jury was hung so the case went to trial again.
- In a 2013 retrial, the jury reached a plaintiff’s verdict and awarded $130,000,000 in damages:
- $92,500,000 for pain and suffering ($10,000,000 past – 10 years, $82,500,000 future – 55 years)
- $5,500,000 loss of earnings capacity (29 years)
- $32,000,000 (approx.) for future medical expenses (including $15,600,000 for a living center at age 44, $5,800,000 for home health aides, $5,600,000 for physical, occupational and speech therapies and $2,300,000 for medications)
On a post-trial motion, the judge reduced the awards for future medical expenses by about $3,000,000 and loss of earnings by $1,000,000. He also reduced the pain and suffering award by $85,600,000 to $6,900,000 (past to $400,000 and future to $6,500,000).
On appeal, the hotly contested liability finding has been affirmed in Reilly v. St. Charles Hospital (2d Dept. 2016), the awards for economic damages have been modified (resulting in an allowance of about the same $32,000,000 the jury awarded), the loss of earnings award has been reinstated and the pain and suffering award has been further modified downward and now stands at $4,250,000 ($750,000 past, $3,500,000 future).
In the latest decision, the appellate court referred to four previous appellate court decisions but with no explanation as to their significance. All were medical malpractice cases in which newborns sustained brain damage. The pain and suffering awards for the four plaintiffs were reduced from between $5,000,000 and $20,000,000 to between $2,250,000 and $4,250,000.
The citation to these cases, though unexplained, is important. It appears to relate to the differing positions of the parties in Reilly as to the application of the CPLR 5501 “deviates from what would be reasonable compensation” standard for the review of verdict amounts claimed to be excessive or inadequate.
Generally, to determine whether an award deviates materially from what would be reasonable compensation, the courts look to awards approved in similar cases, especially recent awards sustained by the appellate courts. To be “comparable,” the cases cited must involve injuries that are sufficiently similar to the nature, extent, circumstances and duration of the injuries sustained by the injured plaintiff.
Defendant argued on appeal in Reilly that CPLR 5501(c) requires the court to compare the pain and suffering awards in that case to approved such awards only in other medical malpractice infant brain damage cases, not to cases, as urged by plaintiff, that involve other catastrophic injuries with non-medical malpractice defendants. Applying that narrow construction, defendant argued, meant that the appellate court should compare the pain and suffering awards in Reilly only to other brain damage infant medical malpractice cases and that therefore the $4,250,000 sustained in 2007 for an infant diagnosed with cerebral palsy in Flaherty v. Fromberg should set the maximum limit for pain and suffering in Reilly as that was the highest sustained pain and suffering award in a brain damage infant medical malpractice case at the time Reilly was briefed.
Plaintiff argued that the pain and suffering award in Reilly as reduced by the trial judge from $92,500,000 to $6,900,000 should be increased to an amount commensurate with sustained awards for other persons (not limited to infants in newborn medical malpractice cases) who sustained catastrophic injuries (not limited to brain damage) such as the $16,000,000 sustained for pain and suffering in Peat v. Fordham Hill Owners Corp., discussed by us here, for a 37 year old man applying sealer to a floor in an unfinished apartment whose body was engulfed in flames when vapors from the sealing lacquer ignited and caused severe burns over much of his body.
Curiously, the decision in Reilly does not even mention the same court’s decision in Sence v. Atoynatan, issued seven weeks earlier, in which $9,015,000 was allowed for pain and suffering damages in a medical malpractice newborn brain damage case. We discussed the decision in Sence here.
Shannon Reilly suffers from hypoxic-ischemic encephalopathy, and will for the rest of her life. Here are some of the injury details:
- cannot walk independently
- is unable to control her tongue and mouth
- has facial hypotonia, causing a drooling effect
- will never be able to speak
- will always be dependent upon others for all aspects of daily living
- is incontinent
- will require residence in a skilled nursing facility when her mother is gone
- is well aware of everything going on and has emotional overlay that will continue to get worse
- sleeps in a special needs bed
- attends special needs school in a wheelchair
- The law firms in Reilly were Kramer Diloff, Livingston & Moore for plaintiff and Mauro Lilling Naparty LLP for the defendant. These are both very experienced, well-known and highly respected firms.
- In 2009, before the defense verdict was rendered in the first trial, plaintiff’s settlement demand was $35,000,000 against an offer of $8,000,000. In 2013, before the $130,000,000 verdict, plaintiff’s settlement demand was $16,000,000 against which there was no offer from the defendant.
- In the 2013 trial, the jury initially returned a verdict of $10,000,000 for past pain and suffering and $1,500,000 for future pain and suffering over 55 years. Plaintiff’s counsel then sought a sidebar arguing that it appeared the jury only awarded annual amounts rather than total dollar amounts. The judge then reinstructed the jury as to how they were to return their verdict on future damages awards and then they returned a revised verdict on the future damages awards, awarding $82,500,000 for future pain and suffering over 55 years.
- Under Public Health Law Article 29-D, the New York Medical Indemnity Fund (the MIF) was established in 2011 to provide funds for future health care costs associated with birth-related neurological injuries caused by medical malpractice in order to reduce premiums for medical malpractice insurance coverage. Where, as here, plaintiff qualifies for the MIF, future medical expenses are paid out of the MIF rather than by the defendant. This reduced the defendant’s payout in this case by about $15,000,000.