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A New Jersey appeals court has refused to disturb a $70.8 million medical malpractice award to the family of a brain-damaged infant, ruling it was not excessive in light of the injuries. The Appellate Division declined on Monday to reduce the verdict or order a new trial on liability or damages in the case, Pellicer v. St. Barnabas Hospital , A-1472-05. The case carried a double whammy for the medical community because the court had refused to permit the New Jersey Hospital Association to join the case as amicus. The association had sought to argue that the $50 million pain-and-suffering component would set a dangerous benchmark and threaten hospitals’ finances. Instead, the three-judge panel chose to confine its analysis to the facts at hand, finding that courts should not interfere with a jury award unless it was shocking. The court also pointed to a state Supreme Court decision last month that acknowledged the absence of a “neat formula” to help determine damages. The plaintiff, Casey Pellicer, underwent successful spina bifida surgery at St. Barnabas Hospital in Livingston 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. The appeals court summarily rejected each of the defendants’ challenges. “Trial courts should not interfere with jury damage awards unless so disproportionate to the injury to shock the judicial conscience,” the panel said, citing Baxter v. Fairmount Food Co., 74 N.J. 588 (1977). The appellate judges, Stephen Skillman, Joseph Lisa and John Holston Jr., particularly addressed the challenge to the $50 million pain-and-suffering award, and quoted Schott as saying: “This is a very seriously damaged child, a child who was perhaps brought as close to death as one can come without actually crossing over.” She added: “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.” The judges also quoted a July ruling by the state Supreme Court in Johnson v. Scaccetti, A-36-06, that discussed how pain-and-suffering damages should be viewed. “[A] civil plaintiff has a constitutional right to have a jury decide the merits and worth of her case,” the Court said. “Determining just compensation for an accident victim, particularly when the damages are not susceptible to scientific precision, as in the case of pain and suffering damages, necessarily requires a high degree of discretion. That is so because there is no neat formula for translating pain and suffering into monetary compensation. “ The extent of Pellicari’s permanent impairment warrants the $50 million pain-and-suffering award, the judges said. They added that the award also was based on disability and the loss of enjoyment of life. “It is well established that ‘conscious perception is not needed for disability and impairment damages, because such damages compensate for interruption of function which diminishes the individual’s capacity for physical and mental activity,’” they said, quoting Arenas v. Gari, 309 N.J. Super. 1 (App. Div. 1998). Officials from the New Jersey Hospital Association did not return telephone calls seeking comment. The association had wanted to argue the public policy implications of such a high award. The appeals court did not address the concerns raised by the association, or even mention it. The Pellicer family’s attorney, Craig Rothenberg, says the association had no standing to join the case. “Political discussions have no place in a medical malpractice case like this,” says Rothenberg, of Union’s Rothenberg & Pashaian. Olesnicky was represented by Caryn Lilling of Mauro Goldberg & Lilling in Great Neck, N.Y.; Zeig by Frederick Hughes Jr. of Lindabury, McCormick, Estabrook & Cooper in Westfield; Vallee by Joseph Garrubbo of Garrubbo, Capece & Millman in Westfield; and Anderson by Louis Ruprecht of Ruprecht, Hart & Weeks in Millburn. None returned telephone calls seeking comment.

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