It's not everyday that you find a well written article about a court decision. I must be reading too many mainstream newspapers. The New Jersey Law Journal has written about what may be an important medical malpractice case in New Jersey. It's a good article.
Here is the background on the case:
The plaintiff, Casey Pellicer, underwent successful spina bifida surgery at St. Barnabas Hospital in Livingston, N.J., in 1998 when he was 4 months old. During recovery, an endotracial tube aiding his breathing moved, depriving his brain of oxygen for five to 15 minutes. The Essex County suit alleged that medical personnel failed to respond quickly enough, did not administer the correct drugs and did not call for help.
Casey was rendered a quadriplegic, is blind and cognitively delayed, and will require around-the-clock care for the rest of his life. His attorney says Casey will live for six or seven decades.
The first trial ended in a mistrial in June 2004 because St. Barnabas had, until then, failed to produce heart monitor printouts.
The second jury, in November 2004, awarded Pellicer's family $75.9 million in damages: $50 million for pain and suffering, $13.1 million for loss of services, $10.5 million for a life-care plan, $1.6 million for future lost wages and $700,000 for past and future services rendered by the boy's mother, Areli Pellicer.
Superior Court Judge Francine Schott set aside the $13.1 million award for loss of services, finding no legal precedent, but added about $8 million in prejudgment interest.
The jury found the attending anesthetist, Anne Olesnicky, 50 percent liable for failing to act quickly enough after the tube moved out of place; Drs. Norman Zieg and Michael Vallee, 25 percent and 15 percent liable, respectively, for failing to properly supervise Olesnicky; and a nurse, Delphine Anderson, 10 percent liable for failing to properly supervise the child. The defendants were covered by the hospital's malpractice insurance policies.
Now the appellate court knew it needed to focus on the $50 Million dollar pain and suffering portion of the verdict. Everyone else will and we will hear about how it may be excessive. In order for the award to be excessive it must "shock the judicial conscience". So why did this amount not shock the conscience? Here's the courts answer:
"The defendants' own expert testified that this child's life can't be a normal life expectancy because the child will suffer, his words, suffer through repeated infections as a result of the impairments that came about from being deprived of oxygen. And so the $50 million does not shock my conscience."
"Tort reform" is something we hear about all the time. It's not a topic that I will jump into here, but you can be sure that we will hear about this case when that topic comes up again. From what I can see, this case was decided on the merits of the individual case itself.
I can't go without saying that this was an excellent article by the New Jersey Law Journal. I found it on Law.com. Well Done.
Links: Pellicer v. St. Barnabas Hospital, A-1472-05 This gets you to the written decision 114 pages long.
