Pennsylvania Jury blames hospital for using old equipment in baby's birth

By Sylvia Hsieh

The Daily Record Newswire

BOSTON -- A jury in Philadelphia has awarded $78.5 million to a mother whose baby was born with quadriplegic cerebral palsy because outdated ultrasound equipment failed to detect the baby's heartbeat.

The obstetrician testified that he was sure the ultrasound read a still heartbeat for 5-10 minutes, and told the mother her baby was dead; he claimed the baby came back to life more than an hour later.

The winning attorney, Daniel S. Weinstock, began the trial focusing on the obstetrician's liability but changed theories as it became clear during the course of the trial that the hospital was responsible for poorly maintaining the equipment and not having a technician on duty.

"In opening statements I was talking about the obstetrician about 90 percent ... but by the end of the trial in closings I focused mainly on the hospital's liability," said Weinstock, a partner at Feldman Shepherd Wohlgelernter Tanner Weinstock & Dodig in Philadelphia.

The jury found the hospital 100 percent at fault, and assigned no blame to the obstetrician, Dr. Charles Touey, or another defendant, Dr. Robert Stavis, alleged to have inadequately monitored the baby during transport to a neonatal care unit.

Attorneys for Touey and the hospital did not return calls seeking comment for this article.

'Fooled' by the equipment

Around midday on a Sunday in August 2008, Victoria Upsey arrived at Pottstown Memorial Medical Center. She was 36 weeks pregnant and had placental abruption, a condition that interrupts blood flowing from mother to baby. When a fetal monitor was inconclusive, Touey used the bedside ultrasound.

At trial, Touey was the first witness to testify. He said he was 100 percent certain that the baby was dead.

When he ordered a confirmatory ultrasound, a technician used newer equipment that had no trouble finding the baby's heartbeat right away. Eighty-one minutes elapsed between the two ultrasounds because the technician, whom the hospital did not keep on duty on Sundays, had to be called to the hospital from home. When the second ultrasound showed a heartbeat, they performed an emergency cesarean section.

Touey claimed that the baby had come back to life during the delay.

The second witness was an obstetrics expert who testified it was scientifically impossible for a baby to die and come back to life, and that a properly performed ultrasound with appropriate equipment will always find a heartbeat if there is one.

A pivotal moment at trial came when the hospital's own expert testified that Touey was "fooled" by the equipment.

According to Weinstock, the hospital's attorney tried to walk a fine line between arguing that while the bedside ultrasound equipment was not sensitive enough to find the baby's heartbeat, it was still functional enough to satisfy the hospital's standard of care.

The hospital's defense also suffered a blow when a hospital risk manager admitted that there was no evidence that the ultrasound equipment had been checked in 10 years, even though its manual required annual maintenance.

Another strength in his case, Weinstock said, was his client, a resilient 34-year-old single mother with an older son and a disabled daughter. Her daughter Parrys, now three years old, cannot walk or talk, has trouble holding her head up and will require round-the-clock care for the rest of her life.

On the stand, she testified that when the doctor told her the baby was dead, she told him, "'You're wrong. I can feel the baby kicking. I want a c-section,'" but was ignored, according to Weinstock.

The doctor testified that he did not remember Upsey saying the baby was alive or asking for a cesarean section. But family members who were in the delivery room confirmed her response, and Upsey's mother testified she put her hand on her daughter's belly and felt the baby kick at the time of the second ultrasound.

By the time Touey, who had his own attorney, testified as a defense witness, he changed his tune under cross-examination, saying, "Yes, the baby was alive, but I just didn't find it because of the equipment."

Educated jury

According to Weinstock, the jury was more educated than the typical "urban jury," boasting three jurors with graduate degrees.

In a promising sign for the plaintiff, only an hour into deliberations the jury asked for the damages charts.

Then they spent 15 hours hashing out the numbers.

Weinstock can probably thank two jurors with MBAs for the jury's scrutiny of his proposed rate of inflation on future medical costs: the jury reduced it from five percent to four percent and recalculated the damages for each year until 2058, Parrys' total life expectancy.

Jurors awarded a total of $78.5 million, consisting of $65 million for Parrys' future medical costs, $10 million for her pain and suffering, $2 million in lost earnings and $1.5 million to her mother for the emotional distress caused by being incorrecly told that her baby was dead.

Published: Tue, May 29, 2012

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