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Delay in fetal monitoring led to profound birth injuries: suit

Amount:

$30,545,655

Type:

Verdict-Mixed

State:

Georgia

Venue:

Gwinnett County

Court:

Gwinnett County, State Court

Injury Type(s):

brain-brain damage; brain-cerebral palsy; other-seizure disorder; sensory/speech-vision (cortical blindness), impairment (cortical blindness); mental/psychological-developmental delay; pulmonary/respiratory-hypoxia; paralysis/quadriplegia-spastic quadriplegia

Case Type:

Medical Malpractice - Childbirth, Birth Injury, Failure to Detect, Failure to Consult, Failure to Monitor, Failure to Communicate

Case Name:

Zetah Louis, as Parent and Natural Guardian of a Minor Child, Ra'ayah Louis, and Jason L. Pettie, in his capacity as the Trustee of The Bankruptcy Estate of Zetah Louis v. Willard C. Hearin, M.D.; Rebecca L. Williams, M.D.; Maternal Gynerations, P.C.; Kim Lipscomb, M.D.; Charles Read, M.D.; Obstetrix Medical Group of Atlanta, LLC d/b/a Maternal Fetal Specialists; Gwinnett Hospital System Physician Group, LLC; Gwinnett Hospital System, Inc. d/b/a Gwinnett Medical Center, No. 13-C-06665-S2

Date:

November 9, 2016

Parties

Plaintiff(s):

Zetah Louis (Female, 34 Years), 

Re'Ayah Louis (Female, 1 Minutes)

Plaintiff Attorney(s):

Angela R. Fox; The Summerville Firm; Atlanta, GA, for Zetah Louis, Re'Ayah Louis ■ Daniel S. Weinstock; Feldman Shepherd Wohlgelernter Tanner Weinstock Dodig LLP; Philadelphia, PA, for Zetah Louis, Re'Ayah Louis ■ Carolyn M. Chopko; Feldman Shepherd Wohlgelernter Tanner Weinstock Dodig LLP; Philadelphia, PA, for Zetah Louis, Re'Ayah Louis ■ Jed D. Manton; Harris Penn Lowry; Atlanta, GA, for Zetah Louis, Re'Ayah Louis ■ G. Scott Vezina; Feldman Shepherd Wohlgelernter Tanner Weinstock Dodig LLP; Philadelphia, PA, for Zetah Louis, Re'Ayah Louis ■ Darren Summerville; The Summerville Firm; Atlanta, GA, for Zetah Louis, Re'Ayah Louis

Plaintiff Expert(s):

Jan Klosterman; RN; Life Care Planning; St. Louis, MO called by: Angela R. Fox, Daniel S. Weinstock, Carolyn M. Chopko, Jed D. Manton, G. Scott Vezina, Darren Summerville ■ Marcus Hermansen; M.D.; Neonatology; Nashua, NH called by: Angela R. Fox, Daniel S. Weinstock, Carolyn M. Chopko, Jed D. Manton, G. Scott Vezina, Darren Summerville ■ Richard Bonfiglio; M.D.; Physical Medicine; Murrysville, PA called by: Angela R. Fox, Daniel S. Weinstock, Carolyn M. Chopko, Jed D. Manton, G. Scott Vezina, Darren Summerville ■ Shailen Shah; M.D.; OB-GYN; Voorhees, NJ called by: Angela R. Fox, Daniel S. Weinstock, Carolyn M. Chopko, Jed D. Manton, G. Scott Vezina, Darren Summerville ■ Frederick Raffa; Ph.D; Economics; Orlando, FL called by: Angela R. Fox, Daniel S. Weinstock, Carolyn M. Chopko, Jed D. Manton, G. Scott Vezina, Darren Summerville

Defendant(s):

Charles Read, M.D., 

Kim Lipscomb, M.D., 

Willard C. Hearin, M.D., 

Maternal Gynerations P.C., 

Rebecca L. Williams, M.D., 

Gwinnett Hospital System Inc., 

Obstetrix Medical Group of Atlanta, 

Gwinnett Hospital System Physician Group LLC

Defense Attorney(s):

John E. Hall Jr.; Hall Booth Smith, P.C.; Atlanta, GA, for Gwinnett Hospital System Inc., Gwinnett Hospital System Physician Group LLC ■ M. Scott Bailey; Huff Powell Bailey, LLC; Atlanta, GA, for Willard C. Hearin, M.D., Maternal Gynerations P.C., Rebecca L. Williams, M.D. ■ Matthew S. Coles; Coles Barton, LLP; Lawrenceville, GA, for Charles Read, M.D., Kim Lipscomb, M.D., Obstetrix Medical Group of Atlanta ■ Taylor C. Tribble; Huff Powell Bailey, LLC; Atlanta, GA, for Willard C. Hearin, M.D., Maternal Gynerations P.C., Rebecca L. Williams, M.D. ■ Christina Hadley; Hall Booth Smith, P.C.; Atlanta, GA, for Gwinnett Hospital System Inc., Gwinnett Hospital System Physician Group LLC ■ Ryan M. Donihue; Hall Booth Smith, P.C.; Atlanta, GA, for Gwinnett Hospital System Inc., Gwinnett Hospital System Physician Group LLC

Defendant Expert(s):

Alan Bedrick; Neonatology; Tucson, AZ called by: John E. Hall Jr., Christina Hadley, Ryan M. Donihue ■ Mark Scher; Pediatric Neurology; Cleveland, OH called by: John E. Hall Jr., Christina Hadley, Ryan M. Donihue ■ Gordon Sherard; OB-GYN; Spartanburg, SC called by: M. Scott Bailey, Taylor C. Tribble ■ Rebecca Baergen; Placental Pathology; New York, NY called by: M. Scott Bailey, Taylor C. Tribble

Insurer(s):

CNA for Gwinnett Hospital System, Inc. ($10 million policy); Ironshore for Gwinnett Hospital System, Inc. ($10 million policy); MAG Mutual for Hearin, Williams and Maternal Gynerations ($1 million policy)

Facts:

On June 25, 2012, at 11:37 p.m., plaintiff Re'Ayah Louis was born via C-section delivery at Gwinnett Medical Center. The infant was subsequently diagnosed with spastic quadriplegic cerebral palsy, profound developmental delays and a seizure disorder, in addition to cortical blindness. Her parents claimed these injuries were due to mismanagement of the mother's labor and the delivery. Zetah Louis, as parent and natural guardian of Re'Ayah Louis, and Jason L. Pettie, in his capacity as the trustee of the bankruptcy estate of Zetah Louis, sued Willard C. Hearin, M.D.; Rebecca L. Williams, M.D.; Maternal Gynerations, P.C.; Kim Lipscomb, M.D.; Charles Read, M.D.; Obstetrix Medical Group of Atlanta, LLC d/b/a Maternal Fetal Specialists; Gwinnett Hospital System Physician Group, LLC; and Gwinnett Hospital System, Inc. d/b/a Gwinnett Medical Center. The lawsuit alleged medical malpractice. Dr. Read was dismissed from the case prior to trial on a motion for summary judgment. The case proceeded against the remaining defendants. Re'Ayah's mother, Zetah Louis, had presented to Maternal Gynerations on June 22, 2012 for routine care as part of her second pregnancy. At the time, Louis was 35 weeks pregnant and had gestational diabetes. A non-stress test on this date was non-reactive and a follow-up biophysical profile was performed, with an equivocal score of 6 out of 10. According to Louis, this score generally requires prompt follow-up evaluation, but that was not done. On June 25, 2012, Louis presented to Maternal Gynerations for an unscheduled visit, reporting reduced or absent fetal movement. Counsel for Louis argued that this represented ongoing evolution of a placental insufficiency process. A non-stress test was again non-reactive. A biophysical profile was not performed in the office, but an ultrasound revealed additional signs, which allegedly included reverse end umbilical cord diastolic flow and possible fetal ascites. Dr. Hearin was the Maternal Gynerations obstetrician who saw Louis on this date. He sent Louis directly to Gwinnett Medical Center, where she was to be admitted with immediate and continuous fetal monitoring and, presumably, delivery as soon as the maternal fetal medicine consultant could confirm the plan. Dr. Hearin documented and later testified under oath that he made a phone call to Dr. Lipscomb, a maternal fetal medicine physician employed by Maternal Fetal Specialists, at approximately 5:15 p.m. According to Dr. Hearin, Dr. Lipscomb accepted the consult on behalf of her practice and told him that her partner, Dr. Read, also a maternal fetal medicine physician, would see the patient promptly. Louis and the father of the baby testified that Louis arrived at Gwinnett Medical Center at approximately 5:30 p.m., which is allegedly consistent with all of the documents and computerized evidence in the case, but she was not put on a fetal monitor until 7:17 p.m. Gwinnett Medical Center contended at trial that Louis did not arrive until 6:28 p.m., which is the time the computer conclusively establishes her presence there, but the hospital's corporate designee admitted there is no evidence to rule out the proposition that Louis waited for an hour before being logged into the computer. Reportedly, it was Dr. Hearin's expectation and Gwinnett Medical Center's practice to initiate fetal monitoring as soon as the patient gets to the hospital. At approximately 7 p.m. or 7:15 p.m., Dr. Hearin reportedly came to the bedside to see his patient just being admitted and fetal monitoring just being instituted. He allegedly did not initiate what he claims would have been a second contact with Dr. Lipscomb until approximately 8:30 p.m. At that point, Dr. Lipscomb recommended delivery. Dr. Lipscomb continued on in her note to state that even though delivery was recommended, it would not be unreasonable to hold off if intrauterine resuscitation and immediate biophysical profile were going to be performed. Per the lawsuit, these were never done by the hospital. Dr. Lipscomb testified that she expected the stat biophysical profile to be done within one-half hour and, if she had had any reason to think it was not going to be done within one-half hour, then she would have insisted on immediate delivery. The stat biophysical profile was formally ordered at 8:50 p.m. According to plaintiffs' counsel, Gwinnett Medical Center had three ultrasonographers on duty on the evening of June 25, each one fully trained and capable of performing this biophysical profile, and there is a hospital policy that specifically requires that stat ultrasound studies be prioritized over all other studies, but Louis' stat biophysical profile was not begun until 10:30 p.m. Plaintiffs' counsel argued that there was a one hour and 40 minute delay before Louis' stat biophysical profile study was performed, the biophysical profile score at 11:00 p.m. was now 4/10 and, as the patient was put back on a fetal monitor following this study, the baby's heart rate became bradycardic. At that point, stat cesarean delivery was finally ordered, with delivery at 11:37 p.m. Plaintiffs' counsel argued that the June 22 presentation of biophysical profile with an equivocal score of 6 out of 10 is often a sign for early placental insufficiency with standard of care to repeat the biophysical profile in 24 hours. Plaintiffs' counsel further argued that there was at least a 45-minute delay by the hospital in the institution of fetal monitoring, with overwhelming evidence showing the delay was in reality an hour and 45 minutes. As a result of the hospital's failure to promptly admit Louis and initiate fetal monitoring, plaintiffs' counsel claimed that Dr. Read was gone by the time Louis was admitted. In spite of Dr. Hearin's contemporaneous medical records and deposition testimony about his conversation with Dr. Lipscomb, Dr. Read was never asked to see Louis at all. Dr. Lipscomb's contemporaneous medical record and testimony were that there was no phone call from Dr. Hearin at all. All parties agreed that Dr. Read was never asked to see Louis, which was led to his dismissal on summary judgment. Plaintiffs' counsel asserted that during the one hour and 40- minute delay before Louis' stat biophysical profile study was performed, an ultrasound tech began and completed two routine studies, another ultrasound tech performed one routine study and apparently was on break for an hour and a half performing no studies. Per counsel, another ultrasound tech who ultimately did perform Louis' stat study did so only after performing another routine study. She testified that the reason Louis' stat study was delayed so long is that the system in place at Gwinnett Medical Center failed to notify her or any of the other ultrasound techs of the order. Defense counsel for Hearin, Williams and Maternal Gynerations argued that Louis failed to keep her gestational diabetes under control during the pregnancy, thus ignoring the welfare of the unborn baby.

Injury:

Re'Ayah Louis' Apgar scores were 1, 4 and 7. Her arterial cord blood pH was 6.65, indicating profound metabolic acidosis. She was ultimately diagnosed with spastic quadriplegic cerebral palsy, profound developmental delays and a seizure disorder, in addition to cortical blindness. Re'Ayah requires 24-hour per day care. She is at home with her mother and will never walk, talk, feed herself or be able to care for herself. Louis sought recovery for past and future pain and suffering, and for future medical costs.

Result:

The jury apportioned 25-percent fault to Hearin and 75-percent fault to Gwinnett Hospital System. The jury found no fault against Williams, Maternal Gynerations, Lipscomb and Maternal Fetal Specialists. The jury awarded $30,545,655 to the plaintiffs.

Re'Ayah Louis:

$27,045,655 Personal Injury: Future Medical Cost

Zetah Louis:

$3,500,000 Personal Injury: past and future pain and suffering

Trial Information:

Judge:

Shawn Bratton

Demand:

$25 million

Offer:

$2.75 million from the hospital several months before trial

Trial Length:

3  weeks

Trial Deliberations:

9  hours

Jury Vote:

12-0

Jury Composition:

4 male/ 8 female

Post Trial:

Gwinnett reached a settlement that precluded the possibility of any post-trial litigation or appeal.

Editor's Comment:

This report is based on information that was provided by plaintiffs' counsel and defense counsel for Drs. Read and Lipscomb. The other defense attorneys did not respond to the reporter's phone calls.