On June 27, 2012, a two and a half year old boy born with a hole in his heart underwent atrial septal defect repair open heart surgery at Montefiore Hospital in Manhattan. His sternum was sawed and forced open, he was put on bypass while his heart was lifted from his chest and repaired and then his bones were sutured together with wire. He awoke from surgery with a scar down his chest, a breathing tube down his throat, a drainage tube, a Foley catheter and intravenous needles in his jugular vein and arm.
The surgery was successful but a needle fragment was mistakenly left behind in the boy’s chest requiring surgical removal 90 minutes later.
The infant’s mother claimed that her son sustained substantial damages as a result of the second surgery and a Bronx County jury agreed, awarding pain and suffering damages in the sum of $2,000,000 ($1,000,000 past – six years, $1,000,000 future – 41 years).
The trial judge agreed with the defense that the award was excessive and she reduced it to $600,000 ($150,000 past, $450,000 future). In P.D. v. LaCour-Gayet (1st Dept. 2021), the appellate court reduced the award even further – to $250,000 ($150,000 past, $100,000 future).
Here are the injury details:
- Thirty minute bedside surgery to remove broken needle
- Fear and pain right before and during the removal surgery
- Psychological damages including adjustment reaction, anxiety, reduced ability to handle stress and aggressiveness including inability to sleep alone, fear of doctors, fighting with others and school failures
Defendants argued that any psychological deficits the infant had were related to the massive heart surgery he underwent, not the minor suture opening and needle removal procedure.
There was substantial disagreement as to whether the infant was placed under general anesthesia for the needle removal surgery and thus incapable of experiencing conscious pain or whether he was merely given sedation. His mother (not present in the room) testified that she heard him screaming in fear and pain before and during the needle removal surgery.
- The infant plaintiff did not testify.
- Both sides presented testimony from expert psychiatrists.
- Plaintiff’s attorney asked the jury to award $2,000,000 and that’s just what they did.