Type Miscast: Why Arlene Mercado’s Punitive Damages Might Have Been Higher Had Her Patient Survived


In July, as we detailed in last week’s cover story, a Queens jury ordered Dr. Arlene Mercado to pay $8 million in damages for the death of her patient, six-year-old Claudialee Gomez-Nicanor. Mercado, jurors concluded, was fully liable for the girl’s death because she misdiagnosed her with type 2 diabetes when the girl actually had type 1.

The award is not final. Mercado’s defense team filed a motion asking the judge to decrease the punitive portion of the payout and the judge is currently contemplating it.

It’s a sizable sum–much higher than what malpractice insurance providers cover.Yet it seems small when compared to nine-figure medical malpractice awards that make headlines. In April, for instance, a New York jury doled out a $130 million award.

Why was the award in Mercado’s case so much lower?

Because her patient died.

The $8 million awarded to Claudialee’s mother, Irma, is made up of three components: one amount for the money Irma would have gotten from Claudialee over the years, one amount to compensate the girl’s pain and suffering, and one amount serving to punish Mercado. Almost all of the jury’s verdict–$7.5 million–came from the punitive aspect.

It’s a somewhat arbitrary amount. Gary Pillersdorf, the head attorney representing Irma, had asked the jury for $10 million and they decided to go with three-fourths of that.

When the victim lives, however, there is an added calculation: the cost of future care.

In the $130 million case, jurors found that St. Charles Hospital in Long Island was responsible for the brain damage a baby suffered at birth. The girl developed cerebral palsy and she will need expensive medical care for the rest of her life. And that’s where most of the payout will go.

If you browse through headlines touting these mega-payouts, you’ll mostly see incidents that left a patient debilitated–misdiagnosing a stroke, a surgeon’s mistake causing paralysis, a botched Cesarean section. The highest medical malpractice jury award Pillersdorf has ever won for a client was $30 million for a problematic birth that left the child permanently injured.

(Pillersdorf was the lawyer who secured a $25 million wrongful death verdict for Fatima Deloservic, the mother who saw a truck run over her two sons in 1988.)

Mercado’s defense team field their motion on August 21, and Pillersdorf filed his counter about a week later. Judge Darrell Gavrin has 90 days from that point to reach a final decision on the award.