Medical Malpractice

$5,700,000 Recovery – Plaintiff – On behalf of newborn and parents against Hospitals and OB/GYN for failing to perform a timely cesarean section delivery resulting in a hypoxic ischemic event causing C.P. and severe cognitive deficits in the infant.

Monmouth County, New Jersey

Mother proceeded to full term labor and during the nine-hour period in labor the fetal monitor strips initially appeared normal but subsequent the fetal heart pattern revealed multiply, recurrent episodes of variable and late decelerations super imposed on fetal heart baseline “with minimal variability”. Although nurses documented these changes, neither they nor the physicians responded to the non-reassuring nature of these fetal heart patterns by performing a c-section. A signed authorization for the c-section had been secured. Plaintiff argued that this was a tragic deviation from ACOG standards of care. The fact that a c-section was not performed in the delivery and the fact that the fetal pattern showed such decelerations led to abnormal acid-based blood levels.

Plaintiff retained the following experts in pursuit of its case:

Dr. Richcard Luciani, OB Gynecologist, who opined that the c-section should have been performed immediately upon the beginning of the decelerations detected on the fetal monitor strips.

Dr. Abram Pollock, Neuro Radiologist, indicated that since there were no calcifications on the initial MRI, no coradical malfunctions and no ventriculomegaly that this case demonstrates classic findings of mixed HIE and demonstrates none of the anticipated classic findings of the Zika virus infection.

Dr. Eden, Maternal Fetal expert, opined that there was a failure to appropriately manage the stages of delivery with regard to the progress of the labor which resulted in violations in the standard of care during delivery which served as causation for the Hypoxic Ischemic Encephalopathy . He noted that there was a failure to assess and diagnose in a timely fashion, fetal intolerance in the labor to prevent the occurrence of fetal asphyxia from persistent excessive uterine activity when risk factors for adverse perinatal outcome existed. There was failure to perform a timely c-section to avoid perinatal asphyxia in the presence of dysfunctional labor, fetal intolerance in labor, and failed vacuum procedure which was a clear violation of the standard of care.

On damages Plaintiff also presented Dr. Daniel Adler, Pediatric Neurologist, who concluded that Hypoxic Ischemic Encephalopathy was the cause of all the child’s neurological and neuro-developmental disabilities. It was an abnormal delivery in which the child was depressed and required resuscitative efforts. The neurological injuries and disabilities of the child are permanent and will continue with cognitive impairment.

Plaintiff presented the life Care Plan of Harold Bialski, as well as the Economic Loss Report of Michael Soudry of Eco Stat, LLC.

It was defendant’s contention that the problems that the child developed were as a result of the Zika virus since the parents had emigrated from Brazil. The defense presented the report of Dr. Roberto Lopez Alberola ,a pediatric neurologist who concluded that although there was evidence of a possible neonatal Encephalopathy, given the fact that the patient’s mother lived in an area endemic to the Zika virus during the pregnancy, it was possible that the child may have been affected prenatally in utero exposure to the virus and subsequently suffered a congenital Zika syndrome.

The defense also presented the opinion of Dr. Robert McDowall, Jr. a neonatologist who concluded that the infant’s severe, diffused injury was due to an event, process, or injury which was possibly a perinatal Zika infection that predated the onset of this child’s labor and delivery. He concluded that the child was neurologically depressed at birth with metabolic acidosis but responded well to resuscitation. Unquestionably his metabolic difficulties at the time of delivery did not cause his massive brain injury. The fact that his initial ultrasound studies showed cerebral edema further documents that this brain injury predated the onset of labor. Thus, it was his opinion that the fetus was already brain injured at the time of maternal arrival at the hospital with further evolution of his brain injury over six weeks as is typical of perinatal viral infection.

The defense also presented the expert opinion of Dr. Gordon Sze, Neuro Radiologist, who opined that the abnormalities in the MR examination were consistent with an event at or prior to the time of delivery. He also indicated that other factors must be considered in light of the parents having arrived from Brazil when the mother was at a gestational age of 27 weeks. Zika virus is known to be associated with significate abnormalities of the neonatal brain. He found in his opinion that the imaging examinations of the child demonstrated abnormalities of hypoxic Ischemic injury of the mixed pattern with elements of both the acute profound type and the partial prolonged type. The abnormalities disclosed on these imaging examinations are consistent with a Hypoxic Ischemic event having occurred in the early morning prior to the delivery.

The case was successfully mediated by Judge James D. Clyne over a two-day period.

Case Identification withheld based on Confidentiality Agreement. Frank S. Gaudio, Esq of Miller & Gaudio, P.C. representing the Plaintiffs.