Nunez v. Ilene Newman, San Jose Medical Group Inc.,
Regional Medical Center of San Jose
Dr. Fagel and his associates achieved a verdict of over
$38.2 million on behalf of a child who now suffers
cerebral palsy and basal
ganglia damage after physicians failed to properly respond to complications in
the labor and delivery process. The labor process was relatively stable until
progress stalled from 12:00am-8:00am the morning of the delivery. However, the
attending OB was not concerned because he felt the mother and fetus were
healthy at the time. At 8:00am, the regular OB re-started the
Pitocin and
instructed the mother to start pushing when she was completely dilated at
11:35am. Ten minutes later, the fetal heart rate dropped into the 60’s and the
nurse began intrauterine resuscitation to no success. Another ten minutes
later, the OB attempted to deliver the baby via vaginal vacuum but failed on
three separate occasions. She then ordered a stat c-section and the baby was
finally delivered, approximately 35 minutes after fetal distress began. The
infant was born with dangerously low Apgar scores and was diagnosed with
perinatal depression. As a result of injuries sustained during birth, the
plaintiff now has cerebral palsy and motor impairments, and requires assistance
for all daily activities.
The defendants contended that there was no need to
intervene when labor first slowed because the fetus and mother were
healthy. The defense also claimed that the OB made a proper judgment
call that she could deliver the baby faster with a vacuum rather than
by a c-section. Finally, they argued that the
injuries were caused by a small placenta that could not provide a
sufficient
fetal reserve when the fetal heart rate first dropped.
However, Dr. Fagel and his dedicated associates were able to
prove that the injuries were indeed preventable and were a direct result of
negligence and malpractice by attending physicians. The early lack of progress
should have immediately been diagnosed as arrest of labor and should have been
treated with Pitocin or an elective c-section. In addition, when the fetal
heart rate dropped, the regular OB should have moved the patient into the
operating room for a stat c-section rather than attempting three vacuum
deliveries. If physicians properly responded to the complications and delivered
the plaintiff earlier, there likely would have be a normal or at least an improved
outcome.
With Dr. Fagel’s representation, the plaintiff was
able to recover approximately $28 million in past and future medical expenses,
$10 million for future loss of earnings and $275,000 for non-economic damages.