Few parents are blessed with the privilege of caring for a special child like our daughter Nicole. Nicole suffered protracted perinatal asphyxia during labor and delivery.
The asphyxia caused catastrophic brain damage, profound mental retardation, intractable seizure disorder, hypotonic cerebral palsy, ataxia, global developmental delays and PICA. Nicole is non-verbal and incapable of performing even the most rudimentary activities of daily living such as eating, drinking, dressing, bathing and personal hygiene. She is incontinent and requires intensive supervision at all times to avoid inadvertent self-harm.
During her short life, Nicole has been hospitalized twenty-four (24) times at such renowned institutions as Dartmouth-Hitchcock Medical Center, John’s Hopkins Medical Center, The Cleveland Clinic and Montefiore Medical Center.
Efforts to control Nicole’s seizures include a left temporal lobectomy in 2000 and the implantation of a vagus nerve stimulator in 2002. We have tried all anticonvulsants, individually and in various combinations, the Ketogenic Diet, unapproved medications from Canada, medications still in clinical trial and holistic/alternative remedies. To date we have not found a treatment protocol that abates her seizures.
The necessities for a family with a child like Nicole extend well beyond the usual food, clothing, and housing. Even with health insurance, the out-of-pocket medical expenses are staggering. The unique demands of raising a child like Nicole make it impracticable for both of us to continue working. We are facing seemingly insurmountable debt that has us on the verge of bankruptcy.
Back in 2007 we accepted a settlement offer of five hundred thousand dollars ($500,000.) to settle a medical malpractice claim against the obstetrician. After the attorneys took $167,467 the balance was paid to American International Life Assurance Company of New York (AIG) for the purchase of an annuity. The annuity provides monthly payments in the amount of $646.50.
The structured settlement annuity contract provides in relevant part:
“No payee, annuitant, or beneficiary of this contract may assign any payments or benefits of this annuity contract unless the assignment is made in accordance with an order of a court pursuant to §5036 of the CPLR…if a court orders, pursuant to the state law described above, that any payment or benefit of this annuity contract be paid in a lump sum, such lump sum payment shall be calculated as provided below…”
Accordingly, on April 11, 2011 we filed a Petition with the Surrogate’s Court, Putnam County. Our petition sought an order pursuant to §5036 directing AIG to make a lump sum payment in the amount of $100,000. The Court appointed a Guardian Ad Litem to investigate the facts and circumstances surrounding our Petition. After reviewing several years of invoices, medical bills and unreimbursed expenses the Guardian Ad Litem was satisfied that the relief sought was warranted and in the best interest of Nicole and her family. The Judge ultimately concurred and was prepared to issue an order.
After months of seemingly endless objections and obstacles AIG issued a written opinion to the Court. In the opinion, AIG takes the position that “the annuity does not result from a jury verdict and judgment, but rather a settlement agreement” therefore §5036 does not apply. While the Judge and Guardian Ad Litem do not agree with AIG’s position there is nothing they can do to compel AIG’s compliance. From here we would have to file a civil action against AIG sounding in breach of contract. No doubt AIG knows that litigation will take a year or more to resolve this issue. Unfortunately we do not have the luxury of waiting that long.
It is inconceivable that a lump sum payment of $100,000 will impose a financial burden on AIG. However, failure to do so will prove financially devastating for our family. We are pleading for your help in rectifying this senseless injustice.
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