ANTUNES v. THE NASSAU COUNTY MEDICAL CENTER

Monday, February 25, 2002

Supreme Court

Nassau County

Justice Winslow

ANTUNES v. THE NASSAU COUNTY MEDICAL CENTER ” This is a medical malpractice action in which it was alleged that on February 21, 1997, the defendants departed from good and accepted medical practice in connection with the care and treatment of MATTHEW ANTUNES, an infant, who had been delivered nineteen days earlier, at the premature gestational age of 22 weeks. The matter was tried in IAS Part 18 of this court, before the Hon. F. Dana Winslow, from April 10, 2001 through May 16, 2001, on which date the jury rendered a verdict in plaintiffs’ favor on liability. In response to special interrogatories, the jury found that the defendants departed from good and accepted medical practice on February 21, 1997, by reason of the following acts or omissions:

1) allowing a plugged tube to disrupt a viable airway in MATTHEW ANTUNES;

2) failing to timely begin resuscitation efforts on MATTHEW ANTUNES;

3) stopping the “code” during the time MATTHEW ANTUNES’ heart rate was below 60; and

4) failing to evaluate and treat MATTHEW ANTUNES from 6:40 a.m. until 11:00 a.m.

The jury further found that each of these departures was a substantial factor in causing injury (permanent neurological impairment) to MATTHEW ANTUNES, and awarded damages to him and his mother, ANNA MARIA ANTUNES, in the total sum of seventy-five million dollars ($75,000,000.00), as follows:

To Matthew Antunes:

Past pain and suffering $zero Future Pain And Suffering (66 years) 5 million Future Medical Expenses (66 years) 45 million Future Lost Earnings 20 million

$70 million

To Anna Marie Antunes: (for services rendered to MATTHEW ANTUNES)

For past Services rendered $1 million

For future services Rendered (20 years) 4 million

$5 million

Defendants now move pursuant to CPLR 4404(a) for an order:

i) granting judgment notwithstanding the verdict (“JNOV”) and dismissing the complaint on grounds that the defendants did not receive a fair trial; or

ii) granting JNOV dismissing the complaint on grounds that plaintiff failed to make a prima facie showing of departure or causation; or

iii) granting the defendants a new trial on all issues on grounds that the verdict was against the weight of the evidence; or

iv) vacating the damages award or directing a remittitur on grounds that the verdict deviates materially, on the whole and in its components, from what would be reasonable compensation [CPLR 5501(c)].

Defendants further move for an order directing a hearing to determine collateral source reduction of the award [CPLR 4545], the appropriate discount rate to be applied for purposes of structuring the judgment [CPLR 5031(e)]; and the amount of any applicable tax offsets [CPLR 4546]; and for such other relief as the court deems just and proper.

The court now addresses each of these grounds, seriatum, and determines the motion as follows.

Defendants argue that they were deprived of a fair trial because of (a) remarks made in the opening statement by plaintiff’s counsel (defendants’ first motion for a mistrial); (b) the refusal of the court to grant defendants’ second motion for a mistrial based on “juror misconduct;” (c) the refusal of the court to grant defendants’ third motion for a mistrial on account of defense counsel’s sudden departure from the courtroom and inability to proceed for ostensibly medical reasons; and (d) allegedly prejudicial conduct on the part of the trial judge with regard to various courtroom protocols, practices and procedures governing the conduct of the trial (including questions put to witnesses by the court, allowing the plaintiff ANNA MARIA ANTUNES to be visually identified by a defendant doctor in the courtroom, and requiring that counsel avail themselves of available “real-time” transcript technology in the courtroom. ¹) Defense counsel’s motion papers further suggest that the trial Judge was predisposed against the defendants and/or harbored and displayed personal animus towards defense counsel. The court unequivocally denies any such bias or animus. In light of the fact that the contentions regarding animus were withdrawn during oral argument, the court will not comment upon them further.