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$38 Million for Brain-Damaged Baby

November 12, 2013 

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After a seven-week trial, a Stamford jury found obstetrician Corinne de Cholnoky liable for $38.5 million in damages for deciding too late to deliver an oxygen-deprived infant by Cesarean section. At the same time, it cleared co-defendant Stamford Hospital.

The record-setting award marks the start of a vigorous post-trial legal battle, complete with shifting allegiances, unwritten rules and sophisticated strategies.

Defense lawyer James Rosenblum, of Stamford’s Rosenblum & Newfield, said de Cholnoky’s insurance coverage is “a pittance” compared to the $38.5 million award, and called the total amount “essentially uncollectible.”  Plaintiffs’ lawyers say Rosenblum’s assessment will be ferociously challenged.

The six-person jury awarded $30 million in economic damages, $7.5 million in non- economic damages and $1 million for the baby’s mother, Elizabeth Oram, for negligent infliction of emotional distress. Oram is a former Day Pitney associate who is now a staff attorney for Pace University’s Women’s Justice Center in White Plains, N.Y.

The plaintiff ’s team was Richard A. Silver and Angelo A. Ziotas of Stamford’s Silver, Golub & Teitell. “I think it’s the largest malpractice verdict” in state history, and “possibly the largest personal injury verdict,” said Silver.

Obstetrician de Cholnoky is a graduate of Harvard University and medical school with 20 years of experience.  The only other malpractice claim against her never reached a trial on the merits, failing on statute of limitations grounds last year.

In the latest case, Silver, one of Connecticut’s most prominent medical malpractice plaintiff ’s  lawyers, said  the basic fault was simple—the doctor waited far too long before deciding to start a surgical delivery of the second of Elizabeth Oram’s twins.

Oram’s husband, Simon, was on duty in Iraq when she gave birth to twins on April 4, 2003. Other family members were on hand to videotape the birth.

Emma was born first. It was easy to hear her heartbeat on the videotape’s sound- track, which was played for the jury. Amplified as an electronic whoosh, it registered 150 beats per minute. After she was born, the jury could hear the heart rate of the second twin at less than half the normal rhythm. The plaintiff ’s lawyers  said this was because the boy’s umbilical cord was compressed, trapped between his skull and the mother’s pelvic bone.

“The first baby was born at 3:11 a.m., and a problem was noted with the second one at 3:13,” said Ziotas. “The Caesarean delivery was not completed until 3:38 a.m., about 25 minutes after the problem surfaced.”

Spencer Oram survived, but suffered severe brain damage and will require around-the-clock care for the rest of his life.

 

‘Dodging Bullet’

After de Cholnoky was sued in 2005, she named Stamford Hospital as an apportionment defendant, meaning it should share some of the blame and a portion of any damages awarded. The doctor contended that the hospital’s anesthesiologist and operating room nurses let her down, slowing her ability to complete the Caesarean section delivery.

She never named any expert witnesses who would back up those claims, and after two jurors had been selected, she dropped the hospital as an apportionment defendant.

However, the plaintiffs had directly sued Stamford Hospital as a co-defendant, con- tending the nurses, as part of the delivery team, should have spoken up and advocated a C-section delivery.

Eric  J.  Stockman, of   New Haven’s Neuberth, Pepe & Monteith, defended the hospital, which was never accused of having any more than 10 percent liability. Its expo- sure was, nevertheless, enormous.

Under Connecticut tort law, if even 1 per cent liability had been found, the hospital might have been responsible for approximately $25 million of a verdict of this size. Unlike the doctor, insured under a $2 mil- lion policy, the hospital was a true “deep pocket.”

Dr. de Cholnoky’s decision to withdraw her case against the hospital didn’t make her accusations vanish. Ziotas tried to use them to persuade jurors that the hospital staff bore some responsibility. “Didn’t you try to blame someone else, doctor?” Ziotas asked the doctor during the trial. “Aren’t you changing your story doctor? Didn’t you make these allegations against the hospital?”

Ziotas, in an artful PowerPoint closing, asked the jury to decide whether de Cholnoky’s initial accusations were empty scapegoating or valid claims.

Stockman, in his closing, said that the doctor’s withdrawn claims amounted to a “shadow case” against the hospital. He said he emphasized that “there were no experts backing up anything that de Cholnoky said” about the performance of the hospital staff.

The jurors evidently took those words to heart and found no liability on the part of the hospital. “Everyone is saying that we really dodged a bullet,” said Stockman.

 

50 Years

Jurors ended a week of deliberations on Feb. 8. They apparently based the size of the award on the premise that the disabled twin has a 50-year life expectancy. That was the number suggested by a plaintiff ’s expert. The defense expert put the number at 20 years.

“I think they listened very selectively,” defense attorney Rosenblum said of the jurors.  He intends  to  ask Judge Taggart Adams to set aside the jury’s verdict.

Rosenblum criticized the part of the judge’s instruction to the jury that said the doctor should bear liability for pre-birth injuries.

Testimony by a defense expert, Dr. Rebecca Bergen, of New York’s Cornell Medical Center, suggested that Spencer Oram suffered chronic hypoxia—oxygen deprivation—due to a placenta abnormality. “The doctor did not cause this. She’s extremely talented and extremely compassionate. This is so unjustified,” Rosenblum said.

“You have to have some common sense,” countered Silver. “There’s no rationale for waiting minute after minute for this long. [Dr. de Cholnoky] did make one very interesting comment at one point.  [She said] that during a delivery, ‘ten seconds is a long time.’

“Angelo, in closing arguments, said that ten seconds is a long time—but that 25 minutes is an even longer time.”

 

$1.25 Million Offer

Ziotas said he was astounded that Rosenblum regards the verdict against de Cholnoky as largely uncollectible. “Under Connecticut law, she is 100 percent liable for the whole amount,” he said.

However, under an unwritten rule of détente between Connecticut lawyers and doctors, plaintiffs almost invariably limit medical malpractice claims to insurance coverage, and decline to go after doctors’ incomes, houses or stock portfolios.

Instead, they plan to go after the doctor’s medical malpractice insurer. The lawyers said that up until jury selection, they were willing to settle all claims against de Cholnoky for the $2 million policy. But they said the insurer, GE Pro Select, of New Hampshire, offered only $1.25 million.

The lawyers said they will argue that the insurer acted in “bad faith” by failing to settle for the full policy amount and thereby exposing the doctor to $36.5 million in damages above the policy.

So assuming the verdict survives the defense’s efforts to overturn it or whittle it down, Ziotas and Silver would actually be working for the doctor, trying to force her insurer to cover her personal liability. Ziotas also said he would bring claims under the Connecticut Unfair Insurance Practices Act.

Silver said the reason damages in such cases have skyrocketed “is due to the fact that medical care for a child in this situation is enormously expensive. Life expectancies are longer, and there are significant advances in the level of care that can be provided.”

He said he fully expects to recover the entire verdict amount. “I’m glad that this child will be able to receive the  care he needs,” Silver said.

Connecticut Law Tribune, February 18, 2008

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