St. Barnabas Asthma Case: The ECMO Transfer Decision

A 40-year-old asthma patient entered St. Barnabas Hospital in December 2010 with a condition her physicians had managed nine times before. Ten days later, she was seizing, and the brain damage was permanent.

Redish v. Adler is a case about the decision not to transfer and whether the failure to pursue extracorporeal membrane oxygenation at a capable facility constituted a departure from accepted standards of care, a question that parallels the hospital diagnostic failure theory in comparable malpractice verdicts. This analysis covers plaintiff's causation theory, the trial dispute over standard of care, the $110.6 million jury award, and the two-stage appellate reduction that brought pain and suffering damages from $90 million to $10 million.

Case Background: The Clinical Progression Behind Liability

The record in Redish v. Adler (2019) traces a ten-day deterioration from a manageable respiratory presentation to catastrophic neurological injury. Plaintiff's causation theory depended on proving that the physiological decline was both foreseeable and addressable at identifiable decision points.

Keimoneia Redish was admitted to St. Barnabas Hospital in the Bronx on December 4, 2010, with a life-threatening asthma exacerbation. Blood gas analysis on admission confirmed hypercapnic respiratory failure, with CO₂ levels significantly above the normal range of 35–40 mmHg, establishing hypercapnic respiratory failure.

From December 4 through December 10, Redish's pH remained at or below 7.05, a level expert testimony characterized as extremely low against a normal range of 7.35 to 7.45.

When bronchodilator and steroid protocols failed to reverse the respiratory failure, the treatment team moved to salvage therapy: isoflurane inhalation anesthesia administered in the operating room on December 7. The intended mechanism was bronchiole dilation to restore gas exchange. Instead, Redish suffered hypotension — a known side effect of the anesthesia — that persisted through December 10.

The causation chain plaintiff built at trial linked four concurrent physiological insults:

• Prolonged hypercapnia with CO₂ levels far exceeding normal thresholds from December 7 through December 10
• Severe acidosis (pH at or below 7.05 throughout the period)
• Sustained hypotension from failed salvage therapy
• Acute kidney failure

On December 14, 2010, Redish seized. Neurologist Dr. Kevin Sheth testified she was in a deep coma and nearly met brain death criteria. The anoxic encephalopathy was permanent, producing motor impairment, severe cognitive deficits, dysarthria, wheelchair confinement, and total dependence on 24-hour care.

Legal Proceedings: What ECMO Had to Do With It

The central liability question in Redish was not whether ECMO works for asthma patients. It was whether the physicians at St. Barnabas had a duty to consider ECMO and pursue transfer to an equipped facility when conventional therapies failed.

ECMO — extracorporeal membrane oxygenation — functions as an external circuit that drains venous blood, removes CO₂, oxygenates it, and returns it to the body. In a venovenous configuration, it temporarily assumes lung function, allowing clinicians to reduce ventilator settings while bronchospasm resolves. St. Barnabas did not have ECMO capability. Transfer to an equipped facility was the only pathway to this intervention.

Plaintiff's pulmonology expert, Dr. Henry J. Silverman, testified that ECMO was the appropriate next step when the lungs fail to exchange gases and that the defendant physicians departed from accepted medical practice by failing to consider or recommend ECMO transfer. Defense expert Dr. Jennifer Cunningham testified that ECMO and HFOV for status asthmaticus were "novel" salvage therapy rather than standard of care, and not superior to the inhalation anesthesia that had been administered.

The jury resolved the dispute through specific findings against each physician defendant. The opinion described the departures:

• Dr. Ciubotaru failed to include in his initial consult that ECMO should be considered if anesthesia did not work
• Dr. Ciubotaru also failed to recommend ECMO after the December 7 anesthesia attempt
• Dr. Stumacher failed to consider transfer for ECMO on December 8, 2010

The critical distinction is that liability attached to the failure to consider ECMO, not to a definitive finding that ECMO was the standard of care, a framing that reflects patterns seen in landmark malpractice verdicts where delayed intervention, rather than outright negligence, anchors liability. The appellate court affirmed, holding the jury's verdict was supported by legally sufficient evidence and apportioning fault: Dr. Adler 32%, Dr. Ciubotaru 25%, Dr. Stumacher 25%, Dr. Ahmed 18%.

Verdict and Outcome: The $110.6M Jury Award

The seven-week trial in Bronx Supreme Court produced a total award of $110,640,958. The jury deliberated ten hours before returning its verdict.

The pain and suffering component dominated: $60,000,000 for past pain and suffering and $30,000,000 for future pain and suffering, calculated over 34.5 years of remaining life expectancy. No lost income claim was made.

Economic damages comprised the remaining $20,640,958. Past economic damages totaled $1,700,000, split between $850,000 in past hospital expenses and $850,000 for past home health aide costs. Future medical expenses exceeded $10,000,000, with the verdict itemizing categories including:

• Home health aide to age 55: $115,231 annually
• Medications: $930 annually with 1% growth rate over 34.5 years
• Durable medical and mobility equipment: $1,481 annually over 33 years
• Traumatic brain injury and medical day programs over 34.5 years

The verdict sheet listed all four physician defendants separately. Plaintiff's experts included Dr. Silverman on pulmonology and critical care standards and Dr. Sheth on neurological causation. St. Barnabas Hospital was granted indemnification against the physician defendants, shifting liability to the individual practitioners.

Industry Implications: How Courts Reduced a $90M Pain and Suffering Award to $10M

The post-verdict path in Redish is the case's most instructive feature for practitioners. Two sequential reductions — each cutting the prior award by about two-thirds — produced a notable appellate record on non-economic damages calibration in catastrophic brain injury cases.

Stage One: Trial Court (November 2019). Justice Joseph E. Capella ordered remittitur, reducing the $90,000,000 pain and suffering award to $30,000,000 — allocated as $7,000,000 past and $23,000,000 future. Entry of judgment was conditioned on plaintiff's stipulation to the reduced amounts.

Stage Two: First Department Appellate Division (2021). The court determined that even the trial court's remittance of $30 million materially deviated from reasonable compensation. The First Department ordered a new trial on damages unless plaintiff stipulated to $10,000,000 — $3,000,000 past and $7,000,000 future.

The controlling standard is CPLR 5501(c), which governs New York malpractice claims and requires the Appellate Division to determine whether an award deviates materially from what would be reasonable compensation. The First Department applied that standard through comparative precedent analysis, citing comparator cases including Angamarca v. New York City Partnership Housing Development Fund Inc., 87 A.D.3d 206 (1st Dep't 2011), and Paek v. City of New York, 28 A.D.3d 207 (1st Dep't 2006).

The methodology described here is structural rather than mathematical: identify analogous cases with comparable injury profiles, compare the challenged award to appellate-approved amounts in those cases, and reduce awards that exceed the precedent-based range. The opinion cites comparator cases without setting out an explicit mathematical formula for the $10 million figure.

The appellate court's willingness to impose a second remittitur — beyond the trial court's 67% reduction — reinforces that comparative calibration against precedent controls over injury severity alone.

The final damages arc: an 89% reduction from jury verdict to appellate award on non-economic damages, while economic damages exceeding $20 million were affirmed without reduction.

Future Outlook and Practice Implications

For future New York malpractice litigation, Redish is likely to matter in two recurring settings: transfer-decision cases involving advanced rescue therapies and post-verdict battles over catastrophic brain injury damages. Plaintiffs will continue to frame claims around a physician's duty to evaluate available options when standard measures fail. Defendants will continue to rely on Redish as a remittitur benchmark where jury awards substantially exceed comparator cases in the First Department.

For Managing Partners

Redish recalibrated damages exposure for catastrophic brain injury cases in the First Department. The two-stage remittitur — from a $90 million jury award to a $10 million appellate figure — demonstrates that initial verdict size is not a reliable proxy for settlement value in New York malpractice litigation. Managing partners evaluating settlement authority in comparable cases should anchor to the appellate-approved range under CPLR 5501(c), not the jury number. The case also reinforces that liability can attach to a failure-to-consider theory without a definitive finding on standard of care, which expands plaintiff exposure in any critical care matter where advanced rescue options existed and were not documented as evaluated.

For Senior Paralegals

The causation record in Redish was built on precise, date-specific clinical data: CO₂ readings, pH levels, and treatment decisions documented at identifiable points across a ten-day deterioration. Case preparation in transfer-decision matters requires the same granularity. Paralegals should organize medical records chronologically around treatment decision points, flag gaps in contemporaneous documentation of transfer feasibility discussions, and identify where the record is silent on whether advanced therapies were considered and why they were not pursued.

For Legal Operations

Redish is a First Department comparator case under CPLR 5501(c) for catastrophic brain injury damages. Legal operations teams handling New York malpractice matters should build a working library of appellate-approved pain and suffering awards in analogous injury profiles — wheelchair confinement, dysarthria, total ADL dependence — to support remittitur briefing on either side. Intake protocols for critical care cases should include a transfer-feasibility flag: whether advanced rescue therapies were available at a nearby facility and whether the treating record documents any evaluation of that option.

In Summary

Redish v. Adler produced two distinct bodies of law: a liability holding that the duty to consider advanced rescue therapy extends to transfer feasibility, and an appellate damages record documenting how New York courts calibrate non-economic awards under CPLR 5501(c) in catastrophic brain injury cases.

The two-stage remittitur from $90 million to $10 million in pain and suffering remains the most operationally significant outcome, establishing a precedent-based ceiling that will be cited in any comparable First Department case going forward. For broader context on how New York courts handle non-economic damages, the state's medical malpractice caps framework provides relevant reference.