Monday, December 2, 2013

Third Department Affirms $2 Million Erb's Palsy Award

In Skelly-Hand v. Lizardi, the Third Department affirmed a $2 million award for pain and suffering for an Erb’s palsy injury. In affirming the order, the Third Department criticized the lack of details in the cases the defendants cited, noting “Many of the decisions involving brachial plexus birth injuries upon which defendant relies in arguing for a reduction of the award are unhelpful as they fail to indicate the severity of the underlying injury.”  The court also pointed out that some of the cases the defendant cited “describe the injury as mild,” whereas the court described the injury in this case as "severe.'" 

Particularizing the injury, the Court stated that the child, age 16 at the time of trial: (1) has severely limited use of her arms and shoulders; (2) cannot perform tasks requiring the use of her two hands without extreme difficulty; (3) underwent extensive and often painful or uncomfortable medical treatments; (4) had five surgeries; (5) required lengthy periods of wearing braces, splints or casts on her injured arm; (6) wore a back brace to treat scoliosis syringomyelia, a condition causally related to her brachial plexus injury; (7) suffered social adjustment and self-confidence issues due to her injuries; (8) has diminished strength, balance and coordination; and (9) needs assistance with basic activities of daily living such as bathing, grooming, and dressing. 


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