November 19, 2010  

HEALTHCARE ALERT

Written By Attorneys: John T. Salvucci and Lawrence D. Jackson

This article is an interpretation of current law and is offered for informational purposes only. This material is not legal advice and should not be construed or used as a substitute for the advice of an attorney.

Philadelphia County remains a dangerous jurisdiction for hospitals and physicians in malpractice cases. Although statistics show that a majority of verdicts favor defendants in such cases, when the jury does come back with a verdict for the plaintiff, the damage awards tend to be significantly higher than those seen in other jurisdictions.

This is exemplified by a verdict recently handed down by a Philadelphia jury against the Hospital of the University of Pennsylvania in a case involving the death of an infant delivered prematurely. After a week-long trial and eight hours of deliberations, the jury returned an award of $3 million in damages against the hospital, which included $2 million in damages for the infant's pain and suffering. The jury accepted the plaintiff's claim that the infant was delivered prematurely because the hospital's Perinatal Evaluation Center did not have a policy mandating that patients presenting with an abnormal cervix examination should be evaluated by an attending physician.

The evidence presented at trial included testimony that the mother was referred to Pennsylvania Hospital's Perinatal Evaluation Center after her own doctor determined that she had a weakened cervix and ordered that a full cervical exam be performed. The mother was evaluated in the Perinatal Evaluation Center by a first-year intern who was working under the supervision of a fourth-year resident and an attending physician. The mother was not treated for her cervical insufficiency, and ten days later, she delivered prematurely after only 19 weeks of gestation. The infant died one-and-a-half hours later.

All three physicians from the Perinatal Evaluation Center were named as defendants in the lawsuit with the hospital. The plaintiffs' expert testified that the infant's premature birth could have been avoided if the mother had been provided cerclage (tracheloplasty), also known as a cervical stitch that would have strengthened her cervix. The defendants argued that cerclege was not required for the mother's care, and that the hospital does not provide that procedure to any patient with cervical insufficiency. They argued further that the mother's cervix was not dilated at the time of her examination, and therefore, she was discharged without the need to discuss cerclage, which carries a significant risk and has a questionable success rate according to the literature.

The plaintiff rebutted this testimony with evidence that the hospital advertises cerclage as one of its available treatments. Additionally, the plaintiff's counsel argued that the mother was subsequently treated successfully for her cervical insufficiency, citing that her second child was born at 29 weeks of pregnancy and her third child was born at 34 weeks of pregnancy.

The jury returned defense verdicts in favor of the three physicians, but determined that the hospital was liable for the infant's death. Evidently, the jury accepted the plaintiff's argument that the hospital was liable for failing to implement adequate policies and procedures, but that the physicians were not liable because they were merely following the hospital's policy.

Another interesting issue presented to the jurors was how much pain and suffering a newborn infant can experience. The evidence presented by the plaintiff included testimony of the mother that she felt the baby kicking as she was born, and testimony of the father that the baby was gurgling in the blood of the placenta before she was picked-up by a nurse and removed from the delivery room. The jury awarded the plaintiff's $2 million on this element of damages, despite the fact that the infant survived for less than two hours after delivery.

Nelson Levine de Luca & Hamilton provides comprehensive legal services to the insurance industry in the areas of reinsurance, regulatory, complex litigation, class action, coverage, subrogation, bad faith consulting and insurance fraud. The firm is devoted solely to helping build and protect the insurance industry's business practices. For additional information related to this or other healthcare insurance issues, please contact Lawrence D. Jackson at 215.358.5080 or via email at ljackson@nldhlaw.com or John T. Salvucci at 215.358.5162 or via email at jsalvucci@nldhlaw.com.