Verdicts

NEW JERSEY

Suit for Child Brain-Damaged At Birth Settles for $1.35 Million

The family of a baby who suffered brain damage during birth accepted $350,000 from a hospital and two nurses, bringing the total settlement to $1.35 million. Van Guilder v. Covalesky, (Superior Ct., Morris Cty., NJ) (Dumont, J). The plaintiffs earlier settled with the obstetrician, Bernard Covalesky, whose malpractice insurance carrier paid over the full value of his $1 million policy. The family's suit charged that Covalesky and two nurses, Janet Nees and Deborah Aagre, had failed to perform a Caesarean section on a timely basis for Shawn Van Guilder, who was born in 1997 at St. Clare's Hospital in Denville, NJ. The birth was difficult and took place after a failed attempt at a forceps delivery. Plaintiffs claimed that the fetal monitoring strip showed a pattern that indicated problems with the baby that were not acted upon. The boy suffered severe brain damage and cerebral palsy, and died in 2002.

Settlement of $1.2 Million for Wrongful Birth

A judge approved a $1.2 million settlement on Feb. 11 in a suit blaming a baby's mental impairment on negligent prenatal screening. Sabeh v. Khosla, (Bergen Cty., NJ).

Obstetrician-gynecologist Savita Khosla of Hackensack, NJ, agreed to pay $475,000 to the child's parents, and $750,000 to their son, who was born in 1997 with Fragile X Syndrome. The condition, caused by a defective gene on the X chromosome, can lead to a range of problems, from learning disabilities to mental retardation and autism. The boy is severely mentally retarded and autistic and will require lifelong supervision and, at a minimum, medication to control his behavioral problems, according to plaintiffs.

The mother had indicated on the doctor's questionnaire about family history of mental retardation that her only sibling, a brother, is severely mentally retarded and autistic, and has violent behavioral episodes. Her responses, plaintiffs charged, should have triggered a carrier blood test that would have detected the genetic defect. The American College of Obstetrics and Gynecology calls for such testing when there is a family genetic history. Instead, she paid an extra $100 for what was billed as genetic counseling with a nurse in the office, but was not tested. The doctor claimed she recommended genetic testing but that the mother had declined. The parties agreed to settle during a conference in January with Superior Court Judge Patrick Fitzpatrick. He later approved the settlement after a friendly hearing.

TEXAS

Standard of Care Test Was Erroneously Applied

The U.S. Court of Appeals for the Fifth Circuit held that a district court erred in finding a hospital liable because it did not adhere to its own internal policies, when the true question should have been whether it had adhered to the standard of care then prevailing in the community. Quijano v. U.S., No. 02-50095, 2003 U.S. App. LEXIS 4934 (3/19/03).

The civilian spouse of a retired Army service member underwent coronary artery bypass surgery at the Brooke Army Medical Center in San Antonio. The family had asked if they could give directed blood donations, but the hospital had discouraged this. In the end, volunteer blood donations were used. Following the surgery, the patient developed sepsis, which was traced to a bacterial infection introduced through a blood transfusion. She died the day after surgery. Her surviving spouse and adult children brought a wrongful-death and survival action against the United States under the Federal Tort Claims Act, 28 U.S.C. ” 1346(b), 2671-80.

The defendant's expert testified that directed donations of blood were not safer than volunteer donations; that in 1995, it might have taken up to 10 working days to process blood obtained through directed donations in order to verify its safety; that the standard of care with respect to directed donations differed from community to community and hospital to hospital around the country; and that the hospital's policies in 1995 were within the standard of care.

The district court noted defendant's and plaintiffs' experts' conflicting opinions on the conditions calling for and against directed blood donations at the time of the operation, but found that the hospital's own internal policy of highly discouraging, but not prohibiting, directed donations represented the standard of care. By not allowing the family to give directed donations in this case, the district court found that the hospital had violated the standard of care, and was negligent.

The appellate court held that this was an erroneous application of Texas law. In Texas, a hospital's internal policies and bylaws may be evidence of the standard of care, but hospital rules alone do not determine the governing standard of care. A hospital might maintain a higher standard of care than the prevailing community standard. Because the district court's finding that the hospital's policy established the applicable standard of care was clearly erroneous, the court remanded to the district court to established a community standard of care and to determine whether the actions of the defendant's agents and employees breached that standard of care.

DISTRICT OF COLUMBIA

Statute of Limitations Runs from Time of Correct Diagnosis

The District of Columbia Court of Appeals affirmed the trial court's judgment for a plaintiff on her medical malpractice claim against a doctor for a misdiagnosis. Hardi v. Mezzanotte, Nos. 99-CV-1386 and 99-CV-1540, 2003 D.C. App. LEXIS 140 (3/20/03). It held that the trial court did not err in striking the defendants' statute of limitations defense, because the statute of limitations did not begin to run from the time of the misdiagnosis but from the time of the later correct diagnosis. Chief Judge Annice Wagner's opinion was joined by Judges John Steadman and Stephen Glickman.

NEW JERSEY

Suit for Child Brain-Damaged At Birth Settles for $1.35 Million

The family of a baby who suffered brain damage during birth accepted $350,000 from a hospital and two nurses, bringing the total settlement to $1.35 million. Van Guilder v. Covalesky, (Superior Ct., Morris Cty., NJ) (Dumont, J). The plaintiffs earlier settled with the obstetrician, Bernard Covalesky, whose malpractice insurance carrier paid over the full value of his $1 million policy. The family's suit charged that Covalesky and two nurses, Janet Nees and Deborah Aagre, had failed to perform a Caesarean section on a timely basis for Shawn Van Guilder, who was born in 1997 at St. Clare's Hospital in Denville, NJ. The birth was difficult and took place after a failed attempt at a forceps delivery. Plaintiffs claimed that the fetal monitoring strip showed a pattern that indicated problems with the baby that were not acted upon. The boy suffered severe brain damage and cerebral palsy, and died in 2002.

Settlement of $1.2 Million for Wrongful Birth

A judge approved a $1.2 million settlement on Feb. 11 in a suit blaming a baby's mental impairment on negligent prenatal screening. Sabeh v. Khosla, (Bergen Cty., NJ).

Obstetrician-gynecologist Savita Khosla of Hackensack, NJ, agreed to pay $475,000 to the child's parents, and $750,000 to their son, who was born in 1997 with Fragile X Syndrome. The condition, caused by a defective gene on the X chromosome, can lead to a range of problems, from learning disabilities to mental retardation and autism. The boy is severely mentally retarded and autistic and will require lifelong supervision and, at a minimum, medication to control his behavioral problems, according to plaintiffs.

The mother had indicated on the doctor's questionnaire about family history of mental retardation that her only sibling, a brother, is severely mentally retarded and autistic, and has violent behavioral episodes. Her responses, plaintiffs charged, should have triggered a carrier blood test that would have detected the genetic defect. The American College of Obstetrics and Gynecology calls for such testing when there is a family genetic history. Instead, she paid an extra $100 for what was billed as genetic counseling with a nurse in the office, but was not tested. The doctor claimed she recommended genetic testing but that the mother had declined. The parties agreed to settle during a conference in January with Superior Court Judge Patrick Fitzpatrick. He later approved the settlement after a friendly hearing.

TEXAS

Standard of Care Test Was Erroneously Applied

The U.S. Court of Appeals for the Fifth Circuit held that a district court erred in finding a hospital liable because it did not adhere to its own internal policies, when the true question should have been whether it had adhered to the standard of care then prevailing in the community. Quijano v. U.S., No. 02-50095, 2003 U.S. App. LEXIS 4934 (3/19/03).

The civilian spouse of a retired Army service member underwent coronary artery bypass surgery at the Brooke Army Medical Center in San Antonio. The family had asked if they could give directed blood donations, but the hospital had discouraged this. In the end, volunteer blood donations were used. Following the surgery, the patient developed sepsis, which was traced to a bacterial infection introduced through a blood transfusion. She died the day after surgery. Her surviving spouse and adult children brought a wrongful-death and survival action against the United States under the Federal Tort Claims Act, 28 U.S.C. ” 1346(b), 2671-80.

The defendant's expert testified that directed donations of blood were not safer than volunteer donations; that in 1995, it might have taken up to 10 working days to process blood obtained through directed donations in order to verify its safety; that the standard of care with respect to directed donations differed from community to community and hospital to hospital around the country; and that the hospital's policies in 1995 were within the standard of care.

The district court noted defendant's and plaintiffs' experts' conflicting opinions on the conditions calling for and against directed blood donations at the time of the operation, but found that the hospital's own internal policy of highly discouraging, but not prohibiting, directed donations represented the standard of care. By not allowing the family to give directed donations in this case, the district court found that the hospital had violated the standard of care, and was negligent.

The appellate court held that this was an erroneous application of Texas law. In Texas, a hospital's internal policies and bylaws may be evidence of the standard of care, but hospital rules alone do not determine the governing standard of care. A hospital might maintain a higher standard of care than the prevailing community standard. Because the district court's finding that the hospital's policy established the applicable standard of care was clearly erroneous, the court remanded to the district court to established a community standard of care and to determine whether the actions of the defendant's agents and employees breached that standard of care.