Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘obstetric’

Mark A. McLeod v. Mt. Sinai Medical Center briefing

We’ve previously reported on this case and the underlying Hollins v. Jordan $30 million trial verdict (in 2004 on Nov. 20, Oct. 11, and Aug. 31) blaming an obstetrician and hospital for microcephaly in a four-pound, five-ounce birth. The case is scheduled to be heard by the Ohio Supreme Court May 23, and the more recent briefing is on line; the Dr. Jordan merits brief is especially interesting. Of note, and not previously mentioned:

  • Plaintiffs attorney Geoffrey Fieger has already twice asked the entire Ohio Supreme Court to recuse itself.

  • Plaintiffs are seeking $50 million in prejudgment interest.

  • The claim that the caesarean was delayed is entirely bogus; plaintiffs’ experts deliberately confused the “emergency” (i.e., non-scheduled) caesarean with a “crash” caesarean.

  • Plaintiffs sandbagged the damages claim by claiming before trial they would only seek $4 million, and then changing the estimates on the stand by making hypothetical assumptions not supported by any expert evidence.

  • Fieger’s opening argument regularly made references to evidence excluded in limine.

  • Fieger had an anesthesiologist opine on neurological matters.

  • Fieger’s prejudicial conduct at trial, including race-, religion-, and class-baiting, has to be read to be believed. How there wasn’t a mistrial or a revocation of pro hac vice status is jaw-dropping.

  • Counsel of record for two of the co-defendants is Drug and Device Law co-blogger Mark Herrmann.

Again, the lengthy dissent in the appellate court is worth reading.

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One Big Happy Family

No, this case isn’t going to get messy: in 2004, a Long Island couple went to a fertility clinic to help them get pregnant with a biological child. Apparently, the clinic botched the procedure by using the wrong sperm (Oops!); the couple figured it out when they noticed that the child was black and they weren’t.

So they sued the clinic for malpractice and infliction of emotional distress. (Just for good measure, they sued their obstetrician, who had nothing whatsoever to do with the actual fertilization; the court dismissed that claim. Gee, I wonder why medical malpractice insurance rates are so high.) The court rejected the emotional distress claim, ruling that (as most courts do) a baby being born is not an injury to the parents, but it allowed the malpractice claim to proceed.

Speaking of emotional distress, the judge handling the case quoted the parents as saying things every child wants to hear from her parents:

“[W]e are reminded of this terrible mistake each and every time we look at her.”

and

“We are conscious of and distressed by this mistake each and every time we appear in public.”

Read On…

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$14 million for wrongful birth

A New Brunswick jury awarded $14 million to the Sharad family against their obstetrician, who failed to test for a rare genetic blood disorder, thalassemia major (Cooley’s anemia), that their son was born with. Newspaper coverage mentions neither the doctor’s defense nor even the words “wrongful birth.” $8 million of the award is for emotional distress, meaning the family will be millionaires even after attorneys’ fees and medical expenses. (Sue Epstein, “Couple gets millions for son’s blood disorder”, Star-Ledger, May 23). More on wrongful birth suits: Apr. 9, etc.

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Taxpayers on hook for $60.9M cerebral palsy case

Lawyers blame Jacksonville Navy hospital doctors for Kevin Bravo Rodriguez’s severe cerebral palsy (Nov. 12; Nov. 4, 2004; Feb. 2, 2004; Aug. 13, 2003; etc.). He cannot see, speak, swallow, or move his arms and legs, and will not live past age 21. Modern technology saved Bravo Rodriguez’s life after he was born without a heart-rate or respiration, and keeps him alive with 24-hour care that was adjudged to cost $10 million over the course of short life. The verdict included $50 million in pain and suffering. Because this was a Federal Tort Claims Act case, a judge was the finder of fact, and Carter-appointee Senior District Judge Jose A. Gonzalez can be credited with the largest FTCA verdict in history, which (including the millions in jackpot attorneys’ fees) will come out of taxpayers’ pockets unless it is reversed on the government’s promised appeal. (Nikki Waller and Noaki Schwartz, “A bittersweet $60.9 million”, Miami Herald, Nov. 25). This is attorney Ervin Gonzalez’s second appearance in Overlawyered this year for a $60 million+ verdict—see July 10.

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Caesarean sections in Australia

Use of the procedure seems to be following the American path, “and could soon hit a record of 32 per cent of deliveries — far higher than in countries such as Britain and New Zealand.” Among the factors:

Andrew Pesce, consultant obstetrician at Westmead Hospital in Sydney, told the conference litigation was a factor in the caesarean rates.

No obstetrician had ever been sued for doing a caesarean, while some of the largest medical negligence payouts — including the $11 million Calandre Simpson case in 2001- – followed claims the doctor should have performed a caesarean section earlier, Dr Pesce said.

(Adam Cresswell, “Midwives left ‘powerless’ by soaring caesar births”, The Australian, Sept. 5). See Nov. 29, 2004; Jul. 18 and Aug. 13, 2003; and Feb. 5, 2001.

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Finding an OB in Illinois

Dr. Benjamin Brewer, who writes the Wall Street Journal’s “The Doctor’s Office” column, discusses the OB shortage caused in Illinois by the medical malpractice problem. Trial lawyers like to blame the insurance industry’s investments and “business practices,” but the leading insurer in Illinois, ISMIE, has only 3% of its funds in the stock market. (Moreover, ISMIE is a mutual insurer–profits go back to its member doctors. The doctors aren’t conspiring to charge themselves too much; ISMIE’s rates reflect the payouts it makes in malpractice cases.) Large swaths of southern Illinois and nearly half the counties in the state have no obstetrical hospital services at all. Brewer concludes “it may take a federal law to stimulate the reform process in Illinois, where entrenched proponents of our broken system hold political and judicial sway.” (“When a Pregnant Patient Struggles to Find Care”, Jan. 4). Our sister site, Point of Law, comments on tomorrow’s Presidential visit to Madison County, where Bush will discuss his litigation reform agenda for the upcoming Congress. (Krysten Crawford, “Bush heads to ‘Judicial Hellhole'”, CNN/Money, Jan. 4; Ryan Keith, “Bush to Highlight Tort Reform in Ill.”, AP/Newsday, Jan. 4; Caleb Hale, “Doctors Are Eager To Hear What Bush Will Say About Crisis”, The Southern, Jan. 4; Mark Silva, “Bush’s tort reform efforts to start at ‘judicial hellhole'”, Chicago Tribune, Jan. 3).

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“Repeat Caesareans Becoming Harder to Avoid”

“Women around the country are finding that more and more hospitals that once allowed vaginal birth after Caesarean, or VBAC (commonly pronounced VEE-back), are now banning it and insisting on repeat Caesareans. About 300,000 women a year have repeat Caesareans. The rate of vaginal births in women who have had Caesareans has fallen by more than half, from 28.3 percent in 1996 to 10.6 percent in 2003. …

“On a practical level, many women prefer vaginal birth because they recover more quickly and with less pain than they do from a Caesarean. In addition, each Caesarean increases the risk of complications in the next pregnancy, so women who want more than two or three children often hope to avoid the operation.

“Some doctors and hospitals freely acknowledge that fear of being sued has driven their decisions. Hospitals say they cannot comply with guidelines issued in 1999 by the American College of Obstetricians and Gynecologists, which call for a doctor to be available ‘immediately’ throughout active labor during such a birth, to perform an emergency Caesarean if needed. Previous guidelines had called for them to be ‘readily’ available.” (Denise Grady, New York Times, Nov. 29)(via Lone Star Times). We covered the issue Jul. 18, 2003.

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