[author: Aaron Kase]
A Pennsylvania woman was awarded $78.5 million after a doctor waited over an hour to deliver a baby in critical danger, resulting in brain damage and severe cerebral palsy that will demand medical assistance for the rest of the child’s life.
Doctor thought the baby was dead
Hospital equipment was faulty and poorly maintained
Jury found hospital 100 percent responsible
“It Came Back to Life”
Thirty-six weeks pregnant in August 2008, disaster struck when Victoria Upsey suffered a placental abruption, where the placenta separates from the uterus wall, placing the fetus in immediate danger of losing oxygen to its developing brain. Upsey rushed to the Pottstown Memorial Medical Center to try to save her pregnancy, but once there she received terrible news: Her baby was already dead.
The obstetrician on duty had performed an ultrasound and found no signs of a fetal heartbeat, leading to his tragic conclusion. However, when an ultrasound technician showed up more than an hour later to confirm the reading he found that the baby was, in fact, still living, leading Dr. Charles Touey to come up with the excuse of the century: He testified in court that the baby must have died, then come back to life, eighty-one minutes later.
Jurors didn’t buy it, and earlier this month awarded Upsey $78.5 million, mostly for future medical care for her baby Parrys, who will need round-the-clock care for the rest of her life. Touey was let off the hook, as the jury decided the hospital was 100 percent responsible for Parrys’ injuries because they were using old, poorly maintained ultrasound equipment.
“In my opening statements, I talked 90 percent about the doctor, but by the time closing arguments came around, I was talking more around the hospital than the doctor,” says Daniel Weinstock, attorney for the plaintiff. “It kind of surprised everyone in the courtroom.”
Placental abruptions are a relatively common affliction, occurring in about 1 in 150 deliveries; however, abruptions that threaten a baby’s life are much rarer, 1 in every 800 to 1,600 deliveries. Any labor and delivery staff would be experienced in dealing with the emergency, and the Pottstown response in this case was found lacking.
The evolution of where exactly to point the finger came about as the testimony unfolded in the trial. From the start it was clear Touey’s claim about the baby’s resurrection wasn’t going to stand. “That is something I’ve never seen before in my life,” says Weinstock. “There’s no literature suggesting that this explanation is even plausible.”
Consequently, the doctor changed his story to implicate the faulty ultrasound equipment. In fact, the hospital had up-to-date equipment in its radiology department, but since the emergency occurred on a weekend the department was locked and the staff had to make due with the bedside ultrasound machine, for which there was no record of the annual maintenance it is supposed to receive. Complicating matters, the ultrasound technician wasn’t on duty, so Upsey had access to neither the best equipment nor the person most qualified to use it. “Patients are entitled to better care than that,” Weinstock says. “To have neither is below the standard of care.”
Even when Upsey insisted she could still feel the baby kicking, the staff delayed any subsequent action until the ultrasound technician arrived at the hospital and pronounced the baby alive. All told, the delay took 81 minutes, a critical passage of time when the baby lost oxygen to the brain and suffered irreparable damage.
After the doctor and hospital acknowledged that the ultrasound equipment didn’t work properly, they were in a tight spot, liability wise. “They’re trying to argue that the doctor isn’t negligent but that the machine wasn’t good enough, but at the same time same the lawyer was trying to argue that the equipment was good enough to meet the standard of care,” Weinstock says. “It was an untenable argument. The jury rejected it and was offended by it.”
Touey also acknowledged that the 81 minute delay caused the Upsey baby’s brain damage, essentially making the plaintiffs’ arguments for them. “We proved our case through our experts, then we proved our case through the defendant and defense experts,” says Weinstock.
Now baby Parrys will have her medical needs taken care of, but it’s small comfort for what but for the hospital’s mistakes could have been a healthy baby. “She needs help with all her activities for daily living,” the attorney says. “She can’t sit up, roll over or control her head. She’s tube fed. She will never speak. She truly is a devastated child.”
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