dissents, with the following memorandum: While I agree that the verdict in favor of the infant plaintiff is excessive, I would grant a new trial with respect to the issue of damages as to the infant plaintiff, only if the guardian fails to stipulate to reduce the verdict in favor of the infant plaintiff to $400,000 and to the entry of an amended judgment in that reduced amount, in which event I would affirm the judgment, as so reduced and amended.
The infant plaintiff was born on March 14, 1975, at the defendant hospital, after a normal pregnancy. At the time of his mother’s discharge on March 17, 1975, the doctors informed her that the infant was experiencing tremors and they wanted to keep him another three or four days to run tests. On March 19, 1975, a nurse dropped the infant on his head and he sustained a skull fracture. The infant’s claims in this case are based on alleged resulting brain damage.
I cannot agree that it was error for the trial court to permit Dr. Seiden, plaintiffs’ expert psychologist, to testify, based on a physical examination conducted on the eve of trial concerning “organic brain syndrome”. Clearly, following service of the bill of particulars, as early as 1976, defense counsel was aware that the infant was claiming possible brain damage. In a medical report exchanged in May, 1982, Dr. Charash, a psychiatric neurologist, stated: “He [the infant] exhibits at the present time, symptoms which are suggestive of organic minimal cerebral dysfunction. Further time and observation will be necessary to clarify this” (emphasis added). Furthermore, a report of Dr. Seiden, dated July 20, 1982, which was forwarded to defendant, set forth in part, “Based on my psychological evaluation of Nekita I can neither rule out nor support Dr. Charash’s impression of organic dysfunction” (emphasis added); and the supplemental bill of particulars received by defense counsel on August 27,1982 sets forth with respect to the infant: “He has an organic cerebral dysfunction” (emphasis added). Clearly, defense counsel was put on notice of the nature of the infant plaintiff’s claim and the nature of the testimony to be offered. Additionally, apparently by court order (although the record is not entirely clear on this point), defense counsel was permitted to have the infant examined by three doctors of his own choosing shortly before *375trial: Dr. Kymisses, a psychiatrist, on October 19, 1982; Dr. Sherer, a psychologist, on November 18,1982; and Dr. Kaplan, a psychiatric neurologist, on July 15,1982. Dr. Kaplan had previously examined the infant on October 11, 1976 on behalf of defendant. Dr. Sherer examined the infant 20 days before the trial commenced and performed many of the same tests as Dr. Seiden. Dr. Sherer’s analysis of those tests formed the basis for his opinions in this case.
In view of all of the foregoing, particularly the fact that Dr. Sherer, defendant’s expert, had so recently examined the infant, the ruling allowing Dr. Seiden to testify to organic brain disorder was well within the court’s discretion “in the interests of justice” (22 NYCRR 672.8). Noteworthy is the fact that although defense counsel claims surprise, he did not call as witnesses any of the three doctors who examined the infant on defendant’s behalf. On oral argument of this appeal, his explanation was that he did not think it was necessary to call them.
Although I agree with the majority that the verdict as to the infant was excessive, I disagree with my colleagues that a new trial as to damages should be granted in the first instance. As aforesaid, the infant was born in March, 1975. He is now nine years old. Accepting as credible the medical testimony that he needs special schooling and costly psychotherapy — which his family obviously cannot now afford — and considering the testimony of plaintiff’s medical experts which was not disputed by other medical testimony, we should at least afford the infant the option of electing to accept $400,000 in lieu of a new trial as to damages, and possibly avoid further protracted delays in concluding this matter. In my opinion, the evidence at trial amply supports a verdict in that amount.
I also cannot agree that the verdict in favor of the plaintiff mother for the amount of the hospital bill in the sum of $2,264.79, which has been paid, and for which apparently there is a lien, is excessive or understand why that issue was reached by my learned colleagues. The trial court ruled, without objection, that ‘[t]he mother’s cause of action will be limited to the claim for the amount of the lien of $2,264.79”. Defense counsel initially agreed with the trial court that the jury could not bring in a verdict for a lesser amount or for a higher amount. Although counsel subsequently (the following court day) submitted to the court that he thought that the amount of the hospital bill, $2,264.79, was an “incorrect number” for the jury to award, he did not articulate a reason, based upon the evidence, for the submission to the jury of any lesser amount or suggest any lesser amount the court should submit to the jury. Later, in *376summation, defense counsel exploited the ruling, saying to the jury: “Ladies and gentlemen, these lawyers brought a lawsuit on behalf of the mother for $100,000. They knew that her whole claim is only $2,200 and yet, they sued my client for $100,000” (emphasis added). I do not understand how he can now be heard to complain that the verdict in favor of the plaintiff mother is excessive.