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$43,000,000 for a woman who developed cerebral palsy due to oxygen deprivation and meconium aspiration

Case: Busone v. Bellevue Women’s Hospital

Parties:
Plaintiff (Appellee) - J. Tracy Busone individually and as parent of Tiffany Busone
Defendant (Appellant) - Bellevue Women’s Hospital

Court: Supreme Court, Appellate Division, Third Department, New York

Procedural History

J. Tracy Busone and her daughter Tiffany brought an action against Bellevue Women’s Hospital in Saratoga County alleging that Bellevue was responsible for her cerebral palsy. The jury found the hospital liable for medical malpractice, awarding Tiffany Busone $43 million. The hospital appealed the verdict.

Summary of Facts

In Saratoga County, 25 year old New York woman Tiffany Busone claimed that Bellevue Hospital was responsible for her cerebral palsy because she was resuscitated and intubated incorrectly. She was not able to get enough oxygen due to meconium aspiration caused by lack of proper care and treatment. Tiffany consequently suffered brain damage, which left her with cerebral palsy. Tiffany currently is confined to a wheelchair and has limited communication abilities.

Outcome at Trial

The jury awarded Tiffany and her mother a $43 million verdict.  Of that $43 million, the jury awarded $20 million for Tiffany’s home health care, $15 million for future pain and suffering, and $6 million for past pain and suffering.  The remainder of the verdict went toward previous medical expenses and lost earnings.

Issues on Appeal

Bellevue Women’s Hospital appeals from an order of the Supreme Court entered May 1, 1998 in Saratoga County. Defendant appeals the lower court’s decision to grant Plaintiff's motion to vacate a default judgment against her following her inability to respond to Defendant’s summary judgment motion. Defendant also appeals an amended order of that court, entered in Saratoga County, which denied defendant's motion for summary judgment dismissing the complaint.

Appellate Court Holdings

First, Plaintiff’s failure to timely respond to Defendant’s motion was due to her inability to find and retain a new lawyer.  She had had the same attorney for more than nine years, had shown repeated attempts to find counsel, and demonstrated a lack of funds to retain a medical expert.  Hence the Appellate Court found that vacating the default judgment entered against her for her failure to expeditiously retain counsel was proper. Second, Plaintiff was able to show a meritorious defense to Defendant’s motion for summary judgment.  Her deposition testimony raised a triable issue of fact.  Hence, the denial of Defendant’s motion for summary judgment was properly dismissed by the lower court.

Relevant Application of Law

First, the Appellate Court was quick to point out that Plaintiff’s failure to timely retain counsel was not willful.  The court cited Winney v County of Saratoga, 252 AD2d 882, 884, and Goodsill v Middleburgh Little League, 213 AD2d 843, 844 to support that notion.  The court future stated that the decision to vacate a default judgment rests within the sound discretion of the court as set forth in Fishman v Beach, 246 AD2d 779, 780.  The trial court correctly found that Plaintiff had a reasonable excuse for the default and a meritorious defense. Next, the Appellate Court pointed to particular issues of material fact which were in dispute, including parts of Plaintiff’s deposition testimony.  Therefore, under Celotex v. Catrett, (1986), Defendant’s motion for summary judgment was properly dismissed by the lower court.

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