Delaney v. Misericordia Hosp

In Delaney v. Misericordia Hosp. (Sup Ct, Bronx County, Part 16, index No. 16596/86), a medical malpractice action stemming from injuries sustained by an infant plaintiff during delivery, Justice Lottie E. Wilkins rejected the defendant's argument that services provided in the schools may be used to reduce the jury's award for therapies under CPLR 4545. Justice Wilkins held that the: "plaintiff's concerns about proposed budget cuts in funding for special education-related services are warranted. However, the Court need not consider that circumstance since Dr. Ehrenreich's testimony, by itself, sufficiently dilutes the reasonable certainty requirement. Especially, when consideration is given to his testimony concerning the prior discontinuance of in school therapeutic services to the infant-plaintiff, together with the periodic bureaucratic approvals and reviews necessary to obtain and continue such treatments, and, not least, that the choice of practitioners for the supply of such therapeutic services is restricted by the limits of the state contractual rate of payment. Therefore, based upon the foregoing, I do not find with reasonable certainty that the therapies which the jury concluded that the infant plaintiff will need, will be replaced by any so-called collateral sources which have been presented by Dr. Ehrenreich in his testimony." (Slip opn, at 3-4.)