Sankar v. Jamaica Hospital Medical Center ( 2009 )

As a result of the defendants’ negligence, the plaintiff, an infant, suffers from a mild form of Erb’s palsy. The plaintiff s expert testified that the plaintiffs disability is a limited one, related to elevating her left arm above her head and moving her left arm away from her body. Specifically, she can only elevate her arm to between 160 and 170 degrees, instead of to a full 180 degrees. Nonetheless, this is a permanent injury she will have to live with for the rest of her life, which is expected to be another 70 years. While there is no difference in the length of her arms, and no atrophy in the left arm, the plaintiff has scapula winging, where her shoulder blade sticks out from her back when she moves her arms. According to the plaintiffs expert, the scapula winging condition is an indication of shoulder weakness that will pose difficulties for the plaintiff in numerous activities which require elevating her arm above her head.

Under the circumstances, the jury award of $140,000 for future pain and suffering deviated materially from what would be reasonable compensation (see CPLR 5501 [c]; cf. Charles v Day, 289 AD2d 190 [2001]).

The plaintiffs remaining contentions are without merit. Dillon, J.P., Dickerson, Belen and Roman, JJ., concur.