Pina Ex Rel. Abreu v. Chuang

2017 NY Slip Op 242, 146 A.D.3d 528, 43 N.Y.S.3d 902

Opinion

Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered January 11, 2016, which, after a jury trial, denied defendants’ motion to set aside the verdict on the issue of liability or, alternatively, to set aside the verdict awarding infant plaintiff $150,000 for past pain and suffering and $250,000 for future pain and suffering for 21 years, unanimously affirmed, without costs.

The record shows that while performing a caesarean section delivery, defendant physicians lacerated the baby’s face during the incision of the uterus, resulting in an approximately three centimeter scar on infant plaintiff’s face. Although the happening of the injury itself does not mean that there was a departure from the standard of care (see Johnson v St. Barnabas Hosp., 52 AD3d 286, 288 [1st Dept 2008], Iv denied 11 NY3d 705 [2008]), the verdict was supported by legally sufficient evidence that the standard of care required defendants to have discovered the location of the infant plaintiff’s cheek during this non-emergent, elective, procedure (see Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978]; Ross v Mandeville, 45 AD3d 755 [2d Dept 2007]).

The aggregate award of $400,000 for past and future pain and suffering does not deviate materially from what is reasonable compensation under the circumstances (CPLR 5501 [c]).

Concur — Sweeny, J.R, Renwick, Mazzarelli, Manzanet-Daniels and Feinman, JJ.