Pennsylvania Verdicts

Plaintiff(s):

J DW BII (Male, 1s), 

Nicole Welker (Female, 24 Years), 

Justin Brinkley (Male), 

Charles B. Hadad (Male)

Plaintiff Attorney(s):

Dominic C. Guerrini;
Kline & Specter, P.C.;
Philadelphia,
PA,
for
J DW BII, Nicole Welker, Justin Brinkley, Charles B. Hadad ■ Mark S. Polin;
Kline & Specter, P.C.;
Philadelphia,
PA,
for
J DW BII, Nicole Welker, Justin Brinkley, Charles B. Hadad

Plaintiff Expert(s):

Dawn Davidian; R.N.; Occupational Nursing; New Bedford,
MA called by:
Dominic C. Guerrini, Mark S. Polin ■ John Elliott; M.D.; OB-GYN; Scottsdale,
AZ called by:
Dominic C. Guerrini, Mark S. Polin ■ Heidi Fawber; M.Ed., L.P.C., C.R.C.; Life Care Planning; Mars,
PA called by:
Dominic C. Guerrini, Mark S. Polin ■ Andrew Verzilli; M.B.A.; Economics; Lansdale,
PA called by:
Dominic C. Guerrini, Mark S. Polin ■ Donald Younkin; M.D.; Pediatric Neurology; Philadelphia,
PA called by:
Dominic C. Guerrini, Mark S. Polin ■ Michael Caplan; M.D.; Placental Pathology; Hauppauge,
NY called by:
Dominic C. Guerrini, Mark S. Polin ■ Richard Bonfiglio; M.D.; Physical Medicine; Murrysville,
PA called by:
Dominic C. Guerrini, Mark S. Polin ■ Victoria Niklas; M.D.; Neonatology; Orlando,
FL called by:
Dominic C. Guerrini, Mark S. Polin

Defendant(s):

Clearfield Hospital, 

Penn Highlands Clearfield, 

Penn Highlands Healthcare, 

Thomas A. Carnevale, M.D.

Defense Attorney(s):

Michael D. Pipa;
Saxton & Stump, LLC;
Harrisburg,
PA,
for
Thomas A. Carnevale, M.D. ■ None reported;

for
Penn Highlands Clearfield, Penn Highlands Healthcare ■ John L. McIntyre;
McIntyre, Hartye, Schmitt & Sosnowski;
Hollidaysburg,
PA,
for
Clearfield Hospital ■ Victoria A. Kellogg;
McIntyre, Hartye, Schmitt & Sosnowski;
Hollidaysburg,
PA,
for
Clearfield Hospital

Defendant Expert(s):

Jay Goldberg;
OB-GYN;
Philadelphia,
PA called by:
John L. McIntyre, Victoria A. Kellogg ■ Jane Mattson;
Life Care Planning;
Norwalk,
CT called by:
John L. McIntyre, Victoria A. Kellogg ■ John McEvoy;
Placental Pathology;
Charleston,
SC called by:
John L. McIntyre, Victoria A. Kellogg ■ Mark Mintz;
Pediatric Neurology;
Gibbsboro,
NJ called by:
Michael D. Pipa, John L. McIntyre, Victoria A. Kellogg ■ Richard Baker III;
OB-GYN;
Bethlehem,
PA called by:
Michael D. Pipa ■ Christopher Bartlett;
Economics;
Irving,
TX called by:
John L. McIntyre, Victoria A. Kellogg

On July 19, 2012, plaintiff JDWBII was born with severely depressed vital signs and hypoxic ischemic encephalopathy (brain damage caused by oxygen deprivation) at Clearfield Hospital, in Clearfield. The baby’s mother, plaintiff Nicole Welker, 24, had presented to the hospital that day at 4:19 p.m., was five to six centimeters dilated, and was admitted. At 6:30 p.m., obstetrician-gynecologist Thomas Carnevale examined Welker and found her to be nine centimeters dilated. To induce labor, Carnevale performed an artificial rupture of membranes (amniotomy), which revealed thick meconium (an infant’s earliest stool). Carnevale notified the pediatrician of the thick meconium and ordered a high dose of Pitocin, a natural hormone, in order to increase the strength and frequency of contractions. At 7:10 p.m., Carnevale found Welker to be fully dilated and had her start pushing in the second stage of labor, with the Pitocin still running. At 8:00 p.m., Carnevale attempted to turn the fetus (which was face-up) to expedite delivery. By this point, the fetal heart rate revealed minimal variability, indicative of fetal acidosis (high acidity of the baby’s blood, usually when a fetus is deprived of oxygen). By 8:20 p.m., the baby’s head was crowning and beyond the introitus, and Welker later claimed this meant he could have been delivered by vacuum or forceps. By 8:25, the fetal heart rate had become extremely low, at 60 beats per minute (bradycardic). In an attempt to give the fetus time to recover, Carnevale placed Welker on her side and had her breathe through a contraction without pushing. Meanwhile, the Pitocin continued to run. Carnevale cut an episiotomy (a surgical cut in the perineum) and the baby was born at 8:31 p.m., at which time his vital signs were severely depressed and unresponsive. He was intubated, and not long after started having seizures. He suffered severe brain damage. Welker and the baby’s father (plaintiff Justin Brinkley) sued Carnevale and the hospital, alleging that their negligence had breached the standard of care, amounting to medical malpractice. (Welker also sued the hospital’s parent company, Penn Highlands Clearfield, which was dismissed, prior to trial). The lawsuit specifically claimed that the use of Pitocin was improper, and Carnevale and the nursing staff failed to properly monitor the labor. Welker asserted that she was inappropriately started on Pitocin, the dose was too high, and by the time the drug was started by the nurse, Welker was already in uterine tachysystole (contracting too frequently). Welker claimed the nurse did not follow protocol, because she should have notified Carnevale before starting the Pitocin. According to Welker, by 7:50 p.m. the fetal heart rate had become concerning (non-reassuring), and the Pitocin should have been shut off, allowing the fetus time to recover. Welker further claimed that during the 30 minutes after 8:00 p.m., when Carnevale had attempted to turn the fetus to expedite delivery, the variability was minimal to absent, with deep decelerations and eventual bradycardia (low heart-rate) which represented worsening hypoxia (oxygen deficiency) and acidosis. This subjected the baby’s brain to a lack of oxygen and progressive damage. Welker asserted that even with the frequent contractions and Pitocin, if the baby was delivered by 8:10 pm, he would have been healthy, and without brain damage. Welker’s expert in obstetrics opined that Carnevale inappropriately used Pitocin and that before it was used the fetal heart rate was indicative of a healthy baby without hypoxia. When the baby experienced fetal distress from the frequency of contractions and lack of time to recover, Carnevale and the nurse failed to turn off the Pitocin, subjecting the baby to 40 minutes of severe hypoxia and acidosis, resulting in permanent brain damage. According to the expert, the nursing hospital policy dictated that the Pitocin should not have been started because the contractions were too frequent, and it should have been turned off when the fetal heart rate was concerning. The nurses failed to follow their policy. Carnevale testified that under his custom and practice he would have turned off the Pitocin by 7:55 to 8:00 p.m. He also believed that he had asked the nurse to do this, but this was not in the medical record and the nurse denied being given this order. Carnevale’s expert in obstetrics maintained that it was reasonable to start the Pitocin, and while it was a breach in the standard of care not to stop the drug by 8 p.m., Carnevale did not breach that standard, because he gave the order to turn off the Pitocin to the nurse. Welker’s expert in neonatology testified that the cause of baby’s brain damage was due to acute hypoxia immediately preceding his birth. The expert noted that the baby’s lack of oxygen met the criteria set forth by the American Congress of Obstetricians and Gynecologists and the American Academy of Pediatrics. The hospital’s expert in pediatric neurology maintained the baby’s brain injury was not due to a lack of oxygen in labor, but instead was caused by the baby having a bowel movement in utero and being exposed to this meconium for more than 24 hours. The expert based his opinion on the findings of the hospital’s expert in placental pathology who opined that the meconium had been present for 24 to 48 hours.

Upon birth, JDWBII had depressed vital signs and had Apgar scores (evaluations of the newborn’s condition) of 2, 2 and 3, taken at 1, 5 and 10 minutes after birth, respectively. Severe metabolic acidosis was diagnosed in the cord-blood at birth. The baby was intubated and transferred that evening by ambulance to a neonatal intensive care unit at a children’s hospital in Pittsburgh. There, he was treated with therapeutic hypothermia for hypoxic ischemic encephalopathy. He also started seizing, and he now has a seizure disorder. In the ensuing years, JDWBII, who was later diagnosed with spastic tetraplegic cerebral palsy, came under the care of multiple specialists, including an orthopedist, a neurologist, and a gastroenterologist (he likely needs a feeding tube for nutrition). He treated with physical, occupational, and speech therapies. Welker’s expert in physical medicine detailed JDWBII’s injuries, which include spastic tetraparetic cerebral palsy, seizure disorder, dysphagia (difficulty swallowing), global developmental delay, impaired cognition, global aphasia, neurogenic bladder and bowel, and scoliosis. The child will require indefinite treatment, including medications to treat spasticity and seizure disorder, radiographic imaging, physical therapy, and constant monitoring by a pediatrician/primary care physician, neurologist, gastroenterologist, urologist, orthopedic surgeon, and neuro-ophthalmologist. According to the expert, JDWBII, who requires around-the-clock care, will need adaptive and medical equipment and assistive technology, including orthoses, an augmentative communication device, computer with adapted software, an environmental control system, a bath chair, manual and powered wheelchairs, an adapted bed, a stander, a feeding chair, and educational toys. The expert estimated a life expectancy of about 70 years. The parties agreed to an amount of future annual medical costs, which was an average of both parties’ experts in life-care planning’s plans. The parties also agreed that if the jury found in favor of the plaintiffs, the jurors would determine JDWBII’s life expectancy and would apply that amount to each year of JDWBII’s life. JDWBII’s parents sought to recover a stipulated amount in lost earnings. According to his parents, JDWBII, who was four years old at the time of trial, is unable to balance himself and cannot sit, stand, or crawl. They sought to recover damages for past and future pain and suffering. The hospital’s expert in pediatric neurology estimated that JDWBII’s life expectancy would be 51 years.

The jury found that Carnevale was 60 percent liable and the hospital 40 percent liable. JDWBII was determined to receive $14,484,490.

J DW BII: $1,000,000 Personal Injury: Future Lost Earnings Capability; $2,000,000 Personal Injury: non-economic damages; $11,484,490 Personal Injury: future medical costs through 2063

Judge:

Kim R. Gibson

Trial Length:

9
 days

This report is based on information that was provided by plaintiffs’ counsel. Defense counsel did not respond to the reporter’s phone calls. Penn Highlands was not asked to contribute.