Appellate Court Restores Verdict After Hospital Delayed Diagnosis of Brain Bleed

Carlyle Roberts arrived at Kings County Hospital Center in Brooklyn by ambulance on June 11, 2013, after a hit-and-run car crash. Staff treated him for a fractured ankle and a head injury. A CT scan of his head that day showed a chronic subdural hematoma but no acute bleeding, and he stayed in the hospital for weeks with symptoms from the hematoma.

On July 2, 2013, an MRI was ordered to rule out a diffuse axonal injury. Roberts moved during the scan, the study came back incomplete, and the medical staff decided against repeating it rather than sedate him. No repeat CT scan of his head followed. On July 22, a physical therapy session was cut short when Roberts was too fatigued to move to the edge of the bed without help, and no CT scan was done then either. The next morning he was lethargic, slurring his speech and unable to follow commands. An emergency CT scan was ordered at 7:09 a.m. and performed about four hours later. It showed an acute subdural hematoma.

Roberts, then 67, underwent an emergency craniotomy. He spent roughly a year in rehabilitation and came out of it with permanent cognitive impairment, left-side hemiparesis with contractures and spasticity, and incontinence. He was left primarily dependent on a wheelchair and on other people for the ordinary tasks of a day.

The action was brought on Roberts's behalf against New York City Health and Hospitals Corporation, which operates Kings County Hospital Center. It is captioned Yu v. New York City Health and Hospitals Corporation, Kings County Index No. 507744/14. The claim was that the hospital failed to timely diagnose and treat the subdural hematoma: no repeat CT scans between July 2 and July 21, no CT scan on July 22 after the aborted physical therapy session, and a delay in carrying out the emergency scan ordered on July 23.

The jury found for Roberts in 2019 and awarded $10,000,000 for past pain and suffering covering six years, $11,500,000 for future pain and suffering over 11.5 years, and $7,861,000 for future medical and support care expenses, a total of $29,361,000.

The hospital corporation moved under CPLR 4404(a) to set the verdict aside and for a new trial in the interest of justice, arguing misconduct by plaintiff's counsel, principally during summation, and asking in the alternative that the damages be cut. On October 22, 2019, Kings County Supreme Court Justice Debra Silber granted the new trial.

The Appellate Division, Second Department reversed on February 24, 2021, holding that the trial court had improvidently exercised its discretion in ordering a new trial in the interest of justice on the basis of attorney misconduct. The panel did agree that the pain and suffering award deviated materially from reasonable compensation, and ordered a new trial on that element alone unless Roberts stipulated within 30 days to reduce past pain and suffering to $4,000,000 and future pain and suffering to $5,000,000. The $7,861,000 future expense award was left undisturbed, leaving $16,861,000 standing.

Silberstein, Awad & Miklos, P.C. (Robert A. Miklos) appeared for the plaintiff on the appeal, with Pollack, Pollack, Isaac & DeCicco, LLP (Brian J. Isaac) of counsel, per the counsel block of the appellate decision. New York City Health and Hospitals Corporation is a public benefit corporation that runs the city's municipal hospital system.