Shunt Failure Left Boy Severely Brain-Damaged. Kramer Dillof Won a $50 Million Verdict Against New York Hospital.

Samuel Desiderio was born with hydrocephalus, a condition requiring a shunt to drain excess fluid from the brain. In October 1990, he was admitted to New York Hospital for a shunt revision. The procedure failed. The hospital did not catch or correct the malfunction in time, and the resulting pressure caused severe, permanent brain damage.

The injuries transformed every aspect of Samuel's life. He breathes through a permanent tracheostomy, takes nutrition through a gastrostomy tube, and suffers a reactivated seizure disorder that produces episodes several times a day, some requiring immediate resuscitation. Experts testified he was expected to live another 55 years with full-time nursing care.

Thomas Moore tried the liability case. New York Hospital did not contest fault at trial, so the jury focused entirely on damages. It awarded $1.5 million for past pain and suffering and roughly $48.4 million in future losses, the bulk of it ($40 million) for round-the-clock nursing care projected over Samuel's lifetime. The combined verdict came to approximately $50 million.

The hospital appealed, but not to disturb the jury's numbers. Its challenge targeted the structuring formula used to calculate the annuity payments required under CPLR Article 50-A for future damages exceeding $250,000. The hospital argued the periodic-payment schedule should be set so total outlays would not exceed the jury's nominal award. Matthew Gaier argued the appeal for the plaintiff, contending the statute required dividing each future-damage category by the number of years it covered and compounding at 4 percent annually, a method that yields substantially higher payments over time.

The New York Court of Appeals unanimously affirmed in April 2003, adopting the plaintiff's reading of the structured-judgment statute. The decision settled a question that had divided lower courts and, in doing so, strengthened the annuity protections available to catastrophically injured plaintiffs across New York State.