Two Defense Verdicts For The Price of One
Recently, one of our partners, Thomas G. Leverage, got a defense verdict in a case that involved birth related injuries and then also injuries to the mother post-partum. After a month-long trial in Supreme Court, Kings County, the jury returned a verdict as to both the infant’s claims and the mother’s claims in favor of our client, the treating OB/GYN and the co-defendant Brooklyn hospital.
The issue in the infant case concerned allegations that the labor was induced without medical indications at 37 weeks and 4 days of gestational age. The parents alleged that the induction was done for the convenience of the doctor’s schedule and was done 17 days prior to the due date. During the trial, the plaintiffs’ experts argued that the infant’s deficits of pervasive delayed development, respiratory problems and neurologic injury were the result of this premature (before the due date) delivery. Issues in the case concerned whether medical indications were required to induce labor between 37 weeks and 39 weeks of gestational age.
The defense produced evidence that medical indications were not required to induce labor in 2013 between 37 and 39 weeks. However, in this case, there were very serious medical indications that justified the induction. The mother had presented to the hospital at 37 weeks and 4 days with complaints of decreased fetal movement, mild headache and mild blurry vision. Although these complaints were documented in the hospital chart, the mother denied ever giving this history. The defense argued that these complaints could have signaled fetal problems as well as a serious condition called preeclampsia. The treatment for these conditions was to induce labor and deliver the baby. The fetal monitoring strips showed no evidence of fetal distress. The baby was born with APGARS of 4, 5, and 9 at one, five, and ten minutes. The baby’s stay in the NICU was uneventful and the baby was maintained on room air.
The mother’s case involved claims of infertility caused by retained products of conception left in the uterus after the delivery of the baby. This required two D & C (dilatation and curettage) procedures to empty the uterus. As a result of these procedures, it was alleged that the mother developed Asherman’s syndrome resulting in infertility.
The defense argued that the images on the sonograms of the uterus were non-diagnostic and the use of the phrase “retained products of conception” was a presumptive or working diagnosis. The final diagnosis was given in the pathology reports following the D & Cs which indicated there was no retained products of conception. The vaginal bleeding experienced was due to the uterus not contracting fully after birth (subinvolution of the uterus). The mother admitted that she was warned that the second D & C performed so close in time to the first D & C could damage her uterus. Nevertheless, she found a non-party OB/GYN who performed the second D & C at a different hospital than the hospital where the first D & C was performed.
In summation, the plaintiff’s counsel suggested that the damages for these claims were somewhere between $15 million and $95 million dollars. The jury returned a verdict in favor of the defendants in less than an hour.