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Mother: Failure to perform C-section led to baby's injuries

Amount:

$4,081,200

Type:

Verdict-Plaintiff

State:

Pennsylvania

Venue:

Lehigh County

Court:

Lehigh County Court of Common Pleas

Injury Type(s):

arm; brain-brain damage; brain-cerebral palsy; other-seizure; other-laceration; other-shoulder dystocia; other-external sphincter muscle tear; urological-incontinence; sensory/speech-speech/language, impairment of; mental/psychological-cognition, impairment; pulmonary/respiratory-hypoxia

Case Type:

Medical Malpractice - OB-GYN, Dystocia, Childbirth, Birth Injury, Negligent Treatment

Case Name:

Erin McCarthy, individually and on behalf of Chloe McCarthy v. Garry C. Karounos and Garry C. Karounos, M.D. P.C., No. 2011-C-3016

Date:

September 9, 2013

Parties

Plaintiff(s):

Erin McCarthy (Female, 27 Years), 

Chloe McCarthy (Female)

Plaintiff Attorney(s):

Stephen J. Pokiniewski Jr.; Anapol Schwartz, P.C.; Philadelphia, PA, for Erin McCarthy, Chloe McCarthy

Plaintiff Expert(s):

Alan Garely; M.D.; Urogynecology; New York, NY called by Stephen J. Pokiniewski Jr. ■ Marc Collin; M.D.; Neonatology; Cleveland, OH called by Stephen J. Pokiniewski Jr. ■ Mark Lukas; Ed.D.; Vocational Rehabilitation; Media, PA called by Stephen J. Pokiniewski Jr. ■ Henry Prince; M.D.; OB-GYN; Woodbury, NY called by Stephen J. Pokiniewski Jr. ■ Andrew Verzilli; M.B.A.; Economics; Lansdale, PA called by Stephen J. Pokiniewski Jr.

Defendant(s):

Garry Karounos

Garry C. Karounos, M.D. P.C.

Defense Attorney(s):

Eugene P. Feeney; Weber Gallagher Simpson Stapleton Fires & Newby LLP; Scranton, PA, for Garry Karounos, Garry C. Karounos, M.D. P.C.

Defendent Expert(s):

Walter Molofsky; Pediatric Neurology; New York, NY called by Eugene P. Feeney ■ Victoria Petty; OB-GYN; Abington, PA called by Eugene P. Feeney

Facts:

On Aug. 24, 2009, at around 10:30 a.m., plaintiff Erin McCarthy, 27, was in labor with her first child. She was four days past her due date when she presented to a hospital in Allentown, where her delivery was overseen by her obstetrician-gynecologist, Garry Karounos. Four days before she went into labor, sonogram and ultrasound studies had estimated McCarthy's unborn baby's fetal weight at 10 pounds. McCarthy alleged that during the latter stages of her prenatal condition, she and her mother were concerned about her size and weight, which had increased dramatically. (McCarthy said that strangers would approach her in public to ask not when she was due, but how many children she was expected to deliver.) According to McCarthy, Karounos assured her that the relatively substantial estimated fetal weight was not a cause for concern. While in labor, McCarthy arrived fairly quickly at nine centimeters dilation, but she plateaued and remained dilated at nine centimeters for a number of hours, according to court documents subsequently filed on her behalf; a note in her chart stated, "arrest of descent and dilation." At 6:00 p.m., Karounos ordered the administration of oxytocin, and about three hours later, McCarthy was dilated at nine-and-a-half centimeters. The labor continued, and at midnight, the mother finally dilated to 10 centimeters, which allowed for the delivery to commence. For the next two hours, despite McCarthy's pushing, the baby reportedly continued to resist descending; at around 2:50 a.m., Karounos elected to perform a forceps-aided delivery. While pulling on the baby, the baby's head emerged and immediately retracted -- this phenomenon, known as a turtle sign, is indicative of the baby's suffering from shoulder dystocia, according to court papers subsequently filed on McCarthy's behalf. The baby's shoulder reportedly was impinged under the mother's pelvic bone and caught on her pubic bone, preventing it to be delivered. The physician administered a number of successful measures to elicit a delivery, including pushing McCarthy's knees back to her ears (in order to widen her birth canal), applying pressure to the pubic area, and mounting the mother and pushing on her abdomen. When Chloe McCarthy was finally delivered, according to subsequently filed court papers, the three-and-a-half minutes (prior to delivery) in which she had received no oxygen and blood flow, due to impairment of the umbilical cord, meant that when she was delivered she was limp, lifeless, blue, with no heart rate, and was not breathing. She was eventually resuscitated and transferred to the hospital's neonatology unit. She was later diagnosed with mild cerebral palsy. The traumatic birth caused McCarthy to later allegedly suffer from bowel and bladder incontinence. McCarthy sued Karounos and his practice under theories of medical malpractice. According to McCarthy's expert in obstetrics and gynecology, once it was determined that the oxytocin was not effective in inducing labor, Karounos should have performed a Cesarean section to deliver the baby. The expert testified that this was critical, given the large size of the baby, since a childbirth in which the child is estimated to weigh more than 4,500 grams (10 pounds) involves a much higher risk of shoulder dystocia, and that risk only increases as the child becomes bigger in size. The baby's large size explained why it was not descending and why McCarthy was not regularly dilating, it was argued. Therefore, administering a forceps-assisted delivery constituted a further breach of the standard of care, since using forceps exacerbates the risk of a large baby's developing shoulder dystocia, and the physician should have known that the baby was at high risk, maintained the expert. Karounos maintained that he is always prepared for the chance of shoulder dystocia, and claimed that he did not recognize a great concern to perform any other delivery than the one he did. According to his expert in obstetrics and gynecology, the American Congress of Obstetricians and Gynecologists (ACOG) maintains that shoulder dystocia is most often an unpredictable and relatively uncommon event, occurring in 0.6 to 1.4 percent of deliveries. The expert said that the ACOG does not recommend a prophylactic Cesarean section to all post-date patients with excessive weight gain in order to avoid shoulder dystocia. The defense's expert opined that Karounos' decision to proceed with a forceps-assisted delivery was appropriate. According to the expert, in a "primagravid patient" who has been pushing for two-plus hours, with an epidural, one would expect to see some descent of the fetal head in that time period. When no descent has been observed after two hours -- and the mother is exhausted and and feverish and pushing ineffectually, with the fetal head at plus-two station -- an instrumented-delivery is optimal. The expert said that with a head in that low a position, it would probably be more dangerous to push the fetal head back up into the pelvis during Cesarean than to attempt an operative vaginal delivery. The defense's expert in obstetrics and gynecology maintained that Karounos properly employed appropriate maneuvers in managing the baby's shoulder dystocia, attempting different techniques, from downward traction to suprapubic pressure, that allowed for delivery.

Injury:

Chloe was resuscitated after 15 minutes and was then transferred to the hospital's neonatal intensive care unit. Three hours later, before being transferred to a more advanced neonatal unit in Philadelphia, the baby received cooling treatment on her head to help with her hypoxia. She remained hospitalized for the next two months, during which time she was transferred back to a hospital near her home. Upon discharge, she continued being monitored and underwent outpatient therapy that advanced with age, which included occupational, physical, and speech. McCarthy's suit sought to recover $160,420 in damages for past medical expenses on behalf of her daughter. Chloe, who was four years old at the time of trial, reportedly suffers from weakness in her left arm (decreased muscle tone) and from cognitive and expressive-speech delays. She attends a special-needs program at a public school, where she receives therapy for her fine- and gross-motor skills; she is able to manipulate objects, and her attorney claimed that while she may not be able to engage in sporting events, but would most likely be able to participate in other activities. Given that her future prognosis is difficult to predict, McCarthy's attorney relates, no future medical costs were boarded at trial. McCarthy's suit sought to recover unspecified amounts of noneconomic damages, for Chloe's past and future pain and suffering. McCarthy's birth-related tearing allegedly was so severe that it extended to her anal sphincter; despite repair, she was left with bowel incontinence, in addition to bladder incontinence, which was due to the overall trauma of the birth. She came under the care of a colorectal surgeon and urogynecologist. An anorectal manometry was performed to determine the amount of contraction she has in her sphincter (which was determined to be substandard), and she underwent (mostly unsuccessful) therapeutic and stimulation techniques to strengthen her sphincter and teach her how to control the urgency to go to the bathroom. She sought, in her own right, to recover $6,350 in damages for past medical expenses. According to McCarthy's expert in urogynecology, given the amount of damage to her anal sphincter, a complex and delicate area, McCarthy only stands a 25 percent chance of success with respect to repair surgery, which also carries the risk of causing future problems. McCarthy testified that from once a week to once a month, she experiences bowel- and bladder-related accidents, in which she is unable to make it to the bathroom in time, requiring her to wear protection pads. She said that she has adopted a special diet that lessens her chances of experiencing incontinence, and skips meals whenever she has an appointment for her daughter or a social engagement. McCarthy claimed that she ate very little leading up to, and during the course of trial. She sought to recover unspecified amounts of noneconomic damages for her own past and future pain and suffering. Although she was not working at the time of her pregnancy, McCarthy reportedly planned to enter the workforce in the future. Due to her condition, however, she was physically capable to only maintain a part-time job, according to her expert in vocational rehabilitation, who said that even a part-time job would be difficult for her to acquire, since it depended upon an employer who could accommodate a schedule for her incontinence. McCarthy's expert in economics boarded damages for past lost earnings in the amount of $64,250, and for future lost earnings in the amount of $550,000. The defense's expert in obstetrics and gynecology stated that Chloe's perceived deficits are not the result of Karounos' care. According to the expert, the baby's fetal heart-rate pattern was reassuring throughout the labor and up until the moment of birth. The baby was exposed to a hypoxic environment for the three-and-a-half-minute interval between head and shoulder delivery. However, babies, like Chloe, who have not been overly stressed during labor -- i.e., those with normal fetal heart-rate tracings -- have adequate reserves to handle short periods of hypoxia. The expert concluded that Karounos was successful in managing an emergent and life-threatening situation and delivering a newborn with near normal pH levels, and with no obvious, permanent physical or neurological deficits. As to McCarthy's complaints of urinary incontinence and rectal urgency, this can result, and often does, from vaginal delivery of a baby of any size, reasoned the defense's expert in obstetrics and gynecology. The expert testified that Karounos' repair of the fourth-degree laceration was appropriate, and subsequent treating physicians for McCarthy apparently noted excellent approximation and healing of the fourth-degree tear, as well as normal rectal tone. The defense's expert in pediatric neurology noted that Chloe has done well over the past four years, without any ongoing seizure activity, and has been described as meeting her developmental milestones with normal cognitive development. The expert acknowledged Chloe's mild left-sided weakness, including a tremor; however, the records indicate, according to the expert, that these are mild asymmetries, and that she is developmentally within the above-average range. The expert opined that the child should continue to do well and does not expect any significant future impairment. According to the expert, Chloe, as she becomes older, should be able to independently perform all activities of daily living and be able to ride a bike, use a computer, and drive a car. The expert stated that the child should incur no economic loss as a result of her neurological impairments, as she will have a wide variety of vocational choices open to her. The defense's expert in pediatric neurology maintained that part of Chloe's neurological and physical deficits were attributable to the failure in care by the hospital's neonatologists and neonatology intensive care unit. Karounos testified that he observed how the physicians seemingly did not use appropriate protocol when administering resuscitation measures to the baby. (In contrast, McCarthy's expert in neonatology commended the hospital's neonatologists in their treatment of Chloe. The expert noted that head-cooling is a fairly new procedure that was not common in 2009; the fact that the hospital's neonatologist had known to do that, in addition to calling the Philadelphia hospital, proved the hopsital's neonatology staff went to laudable lengths in attempting to prevent the baby's hypoxia from causing further brain damage.)

Result:

The jury found that Karounos had been negligent with respect to the underlying treatment, and that his negligence was a factual cause of harm to McCarthy and her daughter, who, the jurors concluded, should receive damages totaling $4,081,200.

Chloe McCarthy $160,420 Personal Injury: Past Medical Cost; $1,000,000 Personal Injury: past non-economic damages; $1,000,000 Personal Injury: past non-economic damages Erin McCarthy $6,530 Personal Injury: Past Medical Cost; $64,250 Personal Injury: Past Lost Earnings Capability; $550,000 Personal Injury: FutureLostEarningsCapability$650,000 Personal Injury: past non-economic damages; $650,000 Personal Injury: future non-economic damages

Trial Information:

Judge:

Lawrence J. Brenner

Trial Length:

5  days

Trial Deliberations:

.5  hours

Jury Vote:

12-0

Jury Composition:

8 male/ female

Editor's Comment:

This report is based on court documents and on information that was provided by plaintiffs' counsel. Defense counsel did not respond to the reporter's phone calls.