In 1998, a mother was in a clinic for delivery of her child. After eleven and one half hours of non-progressing labor, with the baby not moving toward birth, the baby had to be delivered by cesarean section as a result of a compromise of the umbilical cord, blocking oxygen from the baby. Regrettably, the baby was born with significant long-term injuries and disability, related to the loss of oxygen.
Plaintiff’s claim was that the midwife, scheduled to perform the delivery, had information about the labor and some fetal monitor tracings that showed some cause for concern, that required her to have the overseeing doctor appear at the hospital to monitor what was going on and be prepared for a quick delivery. That did not happen. We were also prepared to prove that the doctor knew more than enough to require his appearance in time to be ready to perform a c-section, before it was allowed to turn into a crisis, caused by the doctor’s delayed arrival at the hospital.
The defense and disputes revolved around conflicting positions offered by the experts as to what the fetal monitoring should have been telling or alerting both the midwife and the doctor.
It was our client’s position, through the experts we retained for them, that the compromise of the umbilical cord, and oxygen for the baby, was predictable and foreseeable, and the midwife and doctor should have made sure the doctor was there to act in time, not after it was too late. The defense was that it was a sudden crisis. Our position was the crisis was sudden only to the delivery team, because they had not prepared for it, given the signs of an abnormal labor they had underevaluated.
Underlying the issues as to how the trial would be focused as between the 2 defendants, was the fact that the defendant doctor had failed to protect himself with insurance. This created a need to focus on the midwife’s conduct.
The case resolved for one million seven hundred and fifty thousand dollars, with the family deciding that that amount would permit them to take the necessary steps to provide a better environment and more support for their disabled child, without risking a verdict in the present climate of discussions about availability of medical care and the potential of a verdict against an uninsured doctor who would be unable to satisfy that verdict.
Selection of a jury had completed its second day, with significant difficulty obtaining jurors, given the holidays and the subject matter of the suit.
Andrew Rockman, a partner in Pellettieri, Rabstein & Altman, and head of our Medical Malpractice Department, was the attorney for the Plaintiff and had been preparing this case for several years, given the ongoing and changing needs of the infant. He recognized that the injuries themselves would support a very substantial verdict, but that the practicalities of a primary defendant being uninsured, along with the medical defenses, was an appropriate and reasonable basis for the family’s decision that accepting the risks of a trial, to seek a larger verdict, would not be in the best interests of the child or the mother.