Tuesday, April 16, 2013

First Department Dismisses a $5.5 Million Medical Malpractice Verdict

Disclaimer: This is an MLN case

In Bustos v. Lenox Hill Hospital, the jury determined that the defendant Hospital departed from accepted practice in connection with (1) the dosage of an epidural block administered during plaintiff’s delivery of her infant child and (2) the maneuvers performed on plaintiff during the delivery.  The jury also concluded that such departures from accepted practice caused the plaintiff’s claimed injury, which consisted of a 9.5 centimeter pubic symphysis diastasis, and awarded plaintiffs $5.5 million ($4.5 million for her past and future pain and suffering and $1 million for her husband’s loss of services).  The Supreme Court denied the Hospital’s motion to set aside the jury’s verdict. 

Based upon the insufficiency of the expert testimony proffered by the plaintiffs, the First Department unanimously reversed the trial court’s Order, and directed that the plaintiffs’ complaint be dismissed.  With respect to the alleged departure from accepted practice in connection with the epidural dosage, the Court concluded that the plaintiffs’ “own expert conceded that the dosage was standard and appropriate.”  Concerning the birthing maneuvers, the Court noted that the “only testimony plaintiffs’ expert gave as to the alleged deviation from the accepted standard of medical care in the performance of the birthing maneuvers was that the maneuvers ‘were excessive and caused th[e] injuries’ and deviated from the appropriate standard of care.”  Noting that the plaintiffs’ expert failed to “explain or in any other way support his opinion,” the Court concluded that the opinion “was speculative and conclusory and without probative force.”

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