In a recent decision an appellate court reversed Justice Kevin Kerrigan's Order to set aside a plaintiff's verdict in a brain damaged baby case. Because the jury reasonably found malpractice but unreasonably failed to award any monetary compensation to the child, the appellate court ordered that a new trial be held limited to damages. A Queens County jury agreed with plaintiff's experts who testified that obstetrician, John Wagner's departed from accepted medical standards for failing to arrange continuous external fetal monitoring of a mother 37 weeks pregnant who complained of a fall causing abdominal pain. Instead, Dr. Wagner sent the mother home. Two days later the baby was delivered by emergency cesarean section but suffered brain damage due to extreme anemia and low blood volume resulting in cerebral palsy. 

The jury also  agreed that the obstetrician's failure to arrange continuous fetal monitoring was a substantial factor in the child's inability to speak, walk and dependence on "round-the-clock nursing care". However, the jury did not award any money damages for pain and suffering, loss of enjoyment of life or future lost wages. Worse yet, the trial judge granted the defendant's motion to set aside the jury verdict against them and to award judgment to the defendant's as a matter of law. The appellate court explained: "the jury's failure to award any damages...deviates materially from reasonable compensation, in light of the evidence of the severe deficits suffered by the child...." Larkin v Wagner, 96 NYS 3d 664.