Cepeda v. New York City Health and Hospitals Corporation

• Decision Date: 06 March 2003
• Citation: 756 N.Y.S.2d 189,303 A.D.2d 173
• Parties: MILAGROS CEPEDA, Appellant,<BR>v.<BR>NEW YORK CITY HEALTH AND HOSPITALS CORPORATION et al., Respondents.
• Court: New York Supreme Court — Appellate Division

303 A.D.2d 173

756 N.Y.S.2d 189

MILAGROS CEPEDA, Appellant,

v.NEW YORK CITY HEALTH AND HOSPITALS CORPORATION et al., Respondents.

Decided March 6, 2003.

Concur — Andrias, J.P., Buckley, Williams and Gonzalez, JJ.

The decedent was born in severe distress due to defendants' failure to timely monitor almost nine hours of fetal distress, acidosis, sepsis, and meconium aspiration, and the delay of a "crash" cesarean section delivery occasioned by a shift change in personnel. The decedent's compromised condition required constant invasive procedures during her 12-day life, including intubation and placement in a heart-lung machine for a therapy known as extra corporeal membrane oxygenation (ECMO), which required catheterization through the neck into the heart in order to bypass her damaged lungs. The ECMO incubated a secondary candida infection that resulted in slow respiratory decomposition and death.

The trial court reduced the award on the rationale that, as a newborn, the decedent could not have had any cognitive awareness of her impending death. However, while "some level" of cognitive awareness is a prerequisite to recovery for loss of enjoyment of life, the factfinder is not required "to sort out varying degrees of cognition and determine at what level a particular deprivation can be fully appreciated" (McDougald v Garber, 73 NY2d 246, 255 [1989]). Thus, given the evidence of the decedent's consciousness for most of her short life, we find the trial court's reduction of the jury's verdict excessive.