Appellate Court Restores Verdict After Hospital Delayed Diagnosis of Brain Bleed
After trial: The Appellate Division, Second Department reinstated the verdict on February 24, 2021 (Yu v New York City Health & Hosps. Corp., 191 AD3d 1040), reversing a Kings County Supreme Court order (Justice Debra Silber, October 22, 2019) that had set it aside for a new trial in the interest of justice over alleged misconduct in plaintiff's counsel's summation. The same panel found the $21,500,000 pain and suffering award excessive and directed a new trial on that element unless the plaintiff stipulated within 30 days to $4,000,000 past and $5,000,000 future; the $7,861,000 future expense award was left undisturbed. We could not independently confirm whether the plaintiff stipulated or a second damages trial followed, whether the hospital corporation sought further review, or the exact date of the jury verdict (it preceded the October 22, 2019 order, and the jury measured past pain and suffering over six years from the 2013 injury). Sources also differ on who was named as plaintiff of record: the appellate caption is Yu, while one case digest describes Roberts's children acting as his guardians, so this file does not state the relationship. New York City Health and Hospitals Corporation is a city-backed public benefit corporation, so the judgment is expected to be paid, though payment could not be independently confirmed.
Won by Silberstein & Miklos.
A Kings County jury found New York City Health and Hospitals Corporation liable for the delayed diagnosis and treatment of a subdural hematoma in Carlyle Roberts, a 67-year-old brought to Kings County Hospital Center in Brooklyn after a hit-and-run crash, leaving him cognitively impaired, weak on his left side and dependent on others. The jury awarded $29,361,000, including $21,500,000 for pain and suffering, before the trial judge set the verdict aside and ordered a new trial over alleged misconduct in plaintiff's counsel's summation. The Appellate Division, Second Department reversed that order on February 24, 2021, reinstated the verdict, and separately found the pain and suffering award excessive, cutting it to $9,000,000. With the $7,861,000 future expense award left undisturbed, $16,861,000 stood. 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.
What happened
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.
Sources
This account is drawn from contemporaneous public reporting and the court record.
- 1.New York Official Reports, Yu v New York City Health & Hosps. Corp., 2021 NY Slip Op 08215 (App Div, 2d Dept, Feb. 24, 2021): the decision itself, establishing the jury award components, the October 22, 2019 order of Justice Debra Silber, the reversal, the reduction to $4,000,000 past and $5,000,000 future pain and suffering, and the counsel block naming Silberstein, Awad & Miklos, P.C. (Robert A. Miklos) for the appellant
- 2.CourtListener, Yu v. New York City Health & Hosps. Corp., 191 A.D.3d 1040, 142 N.Y.S.3d 580, decided February 24, 2021, Index No. 507744/14: citation, filing date and docket confirming the appellate record
- 3.FindLaw mirror of the same Second Department opinion: the clinical chronology (June 11, 2013 admission, the incomplete July 2 MRI, the aborted July 22 physical therapy session, the July 23 emergency CT scan) and the counsel of record
- 4.New York Injury Cases Blog (John Hochfelder), May 2021: independent case commentary confirming Roberts's age, the injuries (cognitive impairment, hemiparesis, contractures and spasticity, incontinence, a year of rehabilitation, wheelchair dependence), the award components and the appellate reduction to $9,000,000
More proven verdicts from Silberstein & Miklos
All Silberstein & Miklos proven verdicts →A 72-year-old woman was thrown to the floor of a Queens city bus in April 2012 when the driver pulled away from the curb before she reached her seat, tearing the menisci in her knee and causing spinal and post-concussive injuries. A Supreme Court, Queens County jury found MTA Bus Co. negligent and awarded her $1,500,000 in past and future pain and suffering. The Appellate Division, Second Department affirmed both the liability finding and the damages award in full in 2018. Robert Miklos of Silberstein, Awad & Miklos, P.C. represented her at trial and on appeal.
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