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Spano v. Bertocci11/4/2002
This opinion is uncorrected and subject to revision before publication in the Official Reports.
(*1)
Argued - April 5, 2002
DECISION & ORDER
(Index No. 24352/97)
(*2) In an action to recover damages for medical malpractice, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Dabiri, J.), dated September 29, 2000, as granted that branch of the motion of the defendant Esther Baldinger pursuant to CPLR 4404(a), which was, in effect, to set aside so much of the jury verdict as was in favor of the infant plaintiff and against that defendant, and the defendant Esther Baldinger cross-appeals, as limited by her notice of appeal and brief, from so much of the same order as denied that branch of her motion which was, in effect, to set aside so much of the jury verdict as was in favor of the plaintiff Andrea Spano and against her.
ORDERED that the order is affirmed insofar as appealed from; and it is further,
ORDERED that the order is reversed insofar as cross-appealed from, and that branch of the motion of the defendant Esther Baldinger pursuant to CPLR 4404(a) was, in effect, to set aside so much of the jury verdict as was in favor of the plaintiff Andrea Spano and against her is granted; and it is further,
ORDERED that one bill of costs is awarded to the defendant Esther Baldinger.
The plaintiff Andrea Spano (hereinafter the mother) suffers from epilepsy, and requires medication to control epileptic seizures. From 1990, and at all relevant times through 1995, her treating neurologists, including the defendant Dr. Esther Baldinger, have prescribed Depakote to control her seizures. Although she had previously been informed that she should not become pregnant while taking Depakote because it increased the risks of birth defects, in or about June 1994, the mother told Dr. Baldinger that she was trying to become pregnant. According to the mother, Dr. Baldinger informed her that she could safely become pregnant while taking Depakote, as long as she also took folic acid. In or about December 1994, the mother became pregnant with the infant plaintiff, who was born in August 1995, with, among other medical conditions, spina bifida.
The mother, on behalf of herself and the infant plaintiff, commenced the instant action against, among others, Dr. Baldinger to recover damages for medical malpractice. The mother alleged causes of action on behalf of herself and the infant plaintiff based on lack of informed consent and Dr. Baldinger's alleged departures from good and accepted medical practice. At trial, the plaintiffs asserted, inter alia, that Dr. Baldinger had departed from good and accepted practice in her treatment of the mother by, among other things, failing to remove the mother from Depakote and placing her on an alternative medication, by increasing the mother's dosage of Depakote while she was pregnant, and by relying on folic acid as protection against the risks posed by Depakote. They also asserted causes of action based on lack of informed consent due to Dr. Baldinger's alleged failure to warn the mother of the risks of birth defects inherent in taking Depakote.
(*3) After trial, the jury found in Dr. Baldinger's favor on the foregoing issues concerning her alleged departure from good and accepted practices, but found in favor of the plaintiffs on the cause of action based on lack of informed consent. The jury awarded damages to the mother for the extraordinary costs of raising the infant plaintiff to age 21, and to the infant plaintiff for past and future pain and suffering, future loss of earnings, and the ext
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