$1,550,000 for a Girl in New York With Limited use of one Side of Her Body

Cases from years ago can still offer insight into the many ways negligence in health care can lead to cerebral palsy - and what can be done to find relief in court. The perfect example: Devito v. Opatich, in which a child suffered considerably due to a medical professional's poor timing during delivery. While this case was concluded in court (and again in appeals) over twenty years ago, it continues to serve as precedent for a variety of other malpractice cases involving cerebral palsy and other disorders. Read on to learn more about this landmark cerebral palsy case - and how it continues to influence modern cerebral palsy malpractice lawsuits.

Case History

In the early 90s, the Devito family alleged that the negligence of defendant J.M. Opatich prompted considerable damage to their child's left cerebral hemisphere. Timing appears to have been the primary issue here; in a later appellate case, court representatives explained, "the failure to deliver the infant prior to the spontaneous delivery represented a departure from good and accepted medical practice and was a substantial factor in bringing about the infant plaintiff's injury." Eventually, the child developed cerebral palsy on the right side of her body.

The Verdict

Conflicting expert testimony caused some doubt as to the ultimate cause of the infant's cerebral damage. Ultimately, however, the jury was willing to believe the observations made by the infant plaintiff's parents, along with the expert witness testimony they presented. As a result, the family was awarded $1,550,000 in damages.


This case's enduring value lies not so much in what occurred in the lower court, but rather, in records of the related appellate proceedings. In appeals, the defendant argued that the initial court had erred by including loss of the daughter's society (frequently confused with loss of consortium) in the original damages. According to the defendant, loss of society is not compensable and should therefore have not been a factor in the family's award. The defendant also claimed that insufficient proof linked negligence to the child's eventual diagnosis of cerebral palsy. The appellate court disagreed, affirming the majority of the lower court's decision.

Unfortunately for the Devito family, the Court of Appeals also concluded that, as the defendant claimed, loss of society was not compensable. In making this decision, the appellate court cited several previous cases, including:

  • Gilbert v Stanton Brewery
  • De Angelis v Lutheran Medical Center
  • White v City of New York

The appellate court also cited a lack of proof of loss of services as sufficient reason for its siding with the defendant. As a result, while the general accusation of malpractice stood and the Devito family still received considerable damages for their daughter's suffering, the $50,000 of the original judgment relating to the loss of society was reversed.

Key Takeaways From Devito v. Opatich

Upsetting courtroom losses often prove more instructive than legal victories. Such is the case with Devito v. Opatich and similar medical malpractice lawsuits. While this case proved a net victory for the Devito family - after all, they won considerable damages - the reversal of tens of thousands from the original judgment was a clear disappointment. Their failure to secure damages for loss of society may prove instructive for families in similar situations.

The validity of loss of consortium, society, or companionship as a cause for damages in medical malpractice or wrongful death varies considerably from one state to the next. In New York, loss of society has regularly been referred to as non-compensable by both lower and appellate courts. This standard was reaffirmed in Devito v. Opatich, in which, despite the appeals court agreeing that the defendant's negligence had prompted unwarranted suffering for the plaintiff's family, the court ultimately reversed a substantial portion of the original award.

Since this case was concluded, it has been cited in a myriad of additional court cases involving loss of society. It stands to reason, then, that future plaintiffs should show caution when citing loss of society as a cause for compensation in similar malpractice cases.

As medical malpractice law - especially in regards to cerebral palsy - evolves, it is important to look to past cases for insight into what could or could not happen not only in lower courts, but also in appeals. With Devito v. Opatich, we can see that evidence of negligence - and its connection to cerebral palsy - alone is not enough. Plaintiffs must be able to prove that they warrant the full extent of damages awarded, or they risk losing all or a portion of said damages in appellate court.