THE BABY THAT NEEDED HELP

The baby would be turning two years old in a couple of days. Little Pablo (not his real name) could not see, or talk, or even crawl let alone walk. Leave him alone to sit and he would more likely than not tip over. He could not eat without choking so they fed him a liquid formula through a tube that had been inserted directly into his stomach.

He lived in a trailer with his parents who had come from Mexico to live in the United States. Pablo’s father worked whatever job was available. His mother stayed home to provide Pablo with around the clock care. Of course there was no insurance so Pablo was left to depend upon the generosity of Medicaid for his medical needs and, thus, his survival.

Sadly, it didn’t have to be this way. Pablo’s young mother had been receiving prenatal care at a midwifery clinic and the pregnancy had been uneventful. Then one morning she awoke at 5:00 a.m. with severe abdominal pains.

They were so bad that she and her husband waited for two hours in the parking lot until the clinic opened at 9:00. The midwife who saw her admitted that she could not fully understand the mother’s symptoms due to the language barrier and despite there being signs of contractions, preterm labor, and a placental abruption she failed to place Pablo’s mother on a fetal heart tone monitor or to perform an ultrasound to see how Pablo was doing. Instead, the midwife sent Pablo’s mother on her way and when she saw her vomit in the clinic parking lot after leaving, the midwife did not so much as even go outside to help her or to see if she was alright.

The pain continued non-stop throughout the day until it became so much worse at 9:30 that night that a second midwife from the clinic was called and she instructed Pablo’s mother to go to the hospital. Once there, the nurses instantly hooked up the fetal heart tone monitor and concluded that Pablo was in very serious trouble, that is that he was suffering from fetal distress due to receiving an inadequate flow of oxygen.

The midwife was immediately called because the nurses realized the life threatening nature of the problem and that Pablo was at risk of sustaining significant brain damage. Although the midwife was but a short distance away, it took her 35 minutes to get to the hospital. Her initial evaluation was corroborative of that of the nurses and without delay she telephoned her obstetrician backup.

Even though the OB agreed that the circumstances were unusual and that there appeared to be a central nervous system dysfunction going on that could lead to brain damage, he refused to go to the hospital. Instead, he prescribed medication to stop the contractions which was medically inappropriate in the presence of fetal distress.

Rather than insist upon the OB coming to the hospital to deal with this emergency, the midwife who recognized the magnitude of the problem proceeded to administer without question medicine that would further decrease the flow of oxygen to a baby that was already clearly suffering greatly from oxygen deprivation.

The midwife next performed an ultrasound which disclosed a possible abruption. This rendered even more inappropriate the medication Pablo’s mother was receiving, yet nothing was done to stop the flow of this medicine and the midwife saw no reason to call the OB again for another 30 minutes. This time he said he would come to the hospital, yet despite living only 5 minutes away it took him 45 minutes before he arrived. In the meantime nothing was really done to care for Pablo’s mother and the midwife made no effort to prepare for a C-section even though that was the obvious next step.

She didn’t even call the anesthesiologist to make sure that he would be present at the hospital when the OB made the inevitable decision to call for a c-section.

Finally the doctor was on scene to personally assess the situation. It was clear to him that the baby’s life was in danger, but he wasted another 20 precious minutes while he performed an unnecessary ultrasound which only confirmed what was evident to everyone, that the baby wasn’t moving and was dying. The OB then ordered a stat c-section which took another 52 minutes to put into effect which exceeded the outside limits of the standard of care by more than 20 minutes even though the midwife had hours to plan for that eventuality.

Then, a little after 1:40 a.m. Pablo was delivered lifeless and had to be resuscitated almost 4 hours after his mother had been admitted to the hospital and the nurses had recognized the signs from the fetal heart tone monitor indicating that his life was in danger.

The statute of limitations for Pablo’s parents was 2 years from the date Pablo was born. This was very important because even though it was Pablo who had suffered the devastating injuries, under the law his parents were the ones who had the responsibility for asserting claims on Pablo’s behalf for economic losses. This meant that if Pablo’s parents did not file suit within 2 years of his birth, Pablo would not be able to recover for the lifetime cost of his care and medical treatment and his claim for income loss over his working life expectancy would be lost.

Fortunately, at virtually the last minute another attorney referred Pablo’s parents to us. Two days before the statute of limitations was to run an attorney from our office traveled to meet with Pablo’s parents in their home. With a translator present they told him their story as best they could and the attorney on hand relayed what happened to me by telephone so that I could contemporaneously prepare the complaint which would get the law suit started in time. Simultaneously, we had another member of our staff going to the local hospital and midwifery clinic to obtain the relevant medical records.

These were then faxed to me so that I would have a better idea of how to describe in the complaint the malpractice that had been committed and so that I would be able to identify the proper medical providers to name as defendants in the suit.

On the last day we filed suit, but we did not immediately serve the doctor and midwives. This was done purposely so that we would have time to find experts that would be willing to testify that the defendants’ acts and failures to act amounted to malpractice. Also, once service is achieved a certification must be filed within 60 days with the court stating that an expert had been consulted and had concluded that the case had merit.

Because it is very hard to find doctors and midwives who will be willing to testify against others of their profession, the decision not to serve the defendants right away bought invaluable time for me to find experts without having to worry about the court dismissing Pablo’s case if I could not locate and obtain the opinions of such experts within 60 days.

This extra time allowed me the luxury to look for in-state doctors and midwives who actually engaged in the practice of delivering babies on a day in, day out basis. They make the best experts because they are not professional witnesses, meaning that a large portion of their income does not come from testifying. Rather, they are everyday practitioners who have enhanced credibility with juries since they only agree to become involved when they sincerely believe that what was done was wrong. Consequently, when they testify, they do so from the heart.

I soon found an obstetrician to review the records and she concluded that malpractice had been committed. But, it was also necessary to prove that the malpractice caused Pablo’s injuries. On this point, the OB felt that she could not say so since the fetal heart tone monitor showed “off the wall” readings when Pablo’s mother first came to the hospital. Thus, the OB said that she could not tell whether the damage to Pablo had already occurred by the time his mother was admitted to the hospital. Instead of giving up, I consulted a second OB. He said the same thing.

However, in view of Pablo’s problem having derived from a lack of oxygen, I asked him wouldn’t it be true that Pablo’s condition deteriorated with each passing moment that he was left without sufficient oxygenation. He agreed and further agreed that the failure of the doctor and midwives to act quickly worsened Pablo’s condition to one degree or another, although he could not say to what extent.

This is exactly what we needed since it proved that the defendants had caused Pablo’s problem to some extent and since the OB could not make an apportionment between how much Pablo was injured before he came to the hospital and how much of the damages was sustained following admission, under the law, the defendants became liable to Pablo for all of his injuries and damages.

We then served the defendants and obtained 2 in-state OBs and 2 in-state midwives, all actively involved in private practice, to testify as experts. We also retained an expert to testify to the cost of Pablo’s future care based upon the records of Pablo’s pediatrician and other doctors describing what problems, limitations, treatment, and surgery Pablo would need in the future.

An economist was brought on to provide us with information concerning economic loss and Pablo’s reduced life expectancy was calculated by an expert in that field. Thereafter, we took all day depositions of the defendant doctor and midwives, as well as depositions of the involved nurses, anesthesiologist, and pediatric neonatologist. All 4 of our own OB and midwife experts testified very strongly at their depositions and soon thereafter Pablo’s case settled.

Great pains were taken with respect to the settlement to ensure that Pablo would receive monthly checks that would provide for all of his needs that Medicaid did not cover for the rest of his life. A house that was wheelchair accessible was purchased for Pablo to live in and Pablo’s parents were reimbursed for their out-of-pocket expenses and for the value of the care that Pablo’s mother had provided.

Trustees were found to ensure that Pablo’s best interests were always kept foremost in mind when making decisions concerning the expenditure of the settlement monies and provision was made so that outside care givers would be able to come to Pablo’s home and give his mother a break in caring for him. In addition, so that there would be no windfall to the company funding the settlement, it was determined that in the event of Pablo’s death, his parents would receive the monthly settlement checks for a certain number of years.

Pablo’s case was not an easy case to handle and involved several hundred hours of hard work, in many instances performed under extreme time pressure. But, with all said and done, it is a case I’ll always remember because we were able to truly make an impact for the better on the lives of Pablo and his parents.

“past success cannot guarantee future results”

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