Royal v. Booth Mem. Hosp

In Royal v. Booth Mem. Hosp. (Sup Ct, Queens County, index No. 11718/89), Justice Joseph F. Lisa rejected the defendants' claim that services supplied through the school under the IDEA constitute a collateral source. Among the factors noted by the court in rejecting the defendants' claim was that "Dr. Ehrenreich's testimony in regard to the bureaucratic approvals necessary to obtain and continue appropriate and necessary service defeats defendants' proof as to the reasonable certainty standard." (Supra, slip opn, at 4.) With regard to the persons who render those services, the court noted that they are "not subject to parental choice or approval" and they are limited to those willing to accept a rate of pay approved by the Board of Education. (Supra, slip opn, at 5.) The court further found that even if it otherwise found that the reasonable certainty requirement was satisfied, it would find that the school services do not replace the jury's award for private therapies. The court explained: "However, even if the court might be persuaded to accept the benefits provided by IDEA as a collateral source to offset the cost of therapies before the age of 21, the trial evidence presented in this case militates against such result. The plaintiff's expert's unrebutted testimony at trial was that the plaintiff needed physical, occupational and speech therapies in addition to those provided in the school setting. Apparently the jury accepted this testimony and made an award on that basis. Thus, defendants have also failed to establish that the benefits provided by IDEA replace a particular category of economic loss, i.e. additional therapies, for which the jury made an award." (Supra, slip opn, at 5-6.)