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Defense Verdict—Supreme Court, Bronx County
Recently, DSMF partner Daniel G. Federico won a defense verdict on a brain-damaged infant claim in Supreme Court, Bronx County, one of the country's most challenging venues. (Bronx County Index # 16765/06)
The matter involved allegations that the infant was caused to suffer brain damage as the result of mismanagement of the labor and delivery of his mother by the defendant, a Board Certified Ob/Gyn.
The infant was diagnosed with an infarction in the left middle cerebral artery, first seen on an MRI of the brain at approximately 14 months of age. As the result, he suffers from brain damage, cerebral palsy, right sided hemiparesis and learning delays, which, plaintiffs alleged, was caused by deprivation of oxygen during labor and delivery.
At trial, Plaintiffs claimed that throughout labor, the fetal heart tracings showed evidence of persistent bradycardia (a heartrate below 110 bpm), which, together with the presence of meconium stained amniotic fluid, were evidence of fetal distress requiring a cesarean section delivery. Plaintiffs also claimed that the defendant should have placed an internal fetal monitor and a scalp pH in view of nonreassuring external monitor tracings, and that the failure to do so was a departure from the standard of care. Plaintiff's experts testified that the infant's injuries were consistent with an injury occurring at or near the time of delivery.
Defendant demonstrated that the external monitor tracings showed a normal reactive fetal heart pattern, with evidence of accelerations of the fetal heart and no late decelerations. Following rupture of membranes, the tracings showed no evidence of distress. Nonetheless, based on the presence of meconium, defendant alerted the pediatricians, who were present at birth.
Defendant's pediatric neurology expert testified that the infant's condition at birth, notably the absence of abnormalities on neurologic exam within the first 24 hours of life, militated against the injury being the product of birth asphyxia, a point conceded by Plaintiff's expert on cross examination. Moreover, had the injury been due to hypoxia, the infant's problems would likely be global and involve multiple organs, none of which occurred here. Defendant also called a board certified neuroradiologist, who testified that the MRI films of the brain showed a pattern inconsistent with hypoxia.
The jury deliberated six and one half hours over two days, during which time they asked to view the MRI films and the fetal heart tracings.
