Richard A. Silver and Angelo A. Ziotas presented expert testimony that an emergency C-section should take only ﬁve minutes and that Dr. Corrine de Cholnoky responded too slowly. Silver Golub & Teitell LLP won a judgment after jury trial of $38.5 million for the client. On April 3, 2003, Elizabeth Oram was admitted to Stamford Hospital, pregnant with twins. The next morning, she delivered a healthy baby girl, Emma. Minutes later, at 3:13 a.m., complications arose with unborn Spencer. His heart rate fell to an alarming 50 to 70 beats per minute. Almost immediately, Dr. Corrine de Cholnoky noticed the baby’s umbilical cord was being restricted. She ﬁrst attempted to have the mother deliver normally by pushing for 10 minutes, and then at 3:23 a.m. she ordered a Caesarean section, which was begun at 3:27 a.m. and completed at 3:38 a.m.
Plaintiff lawyer Silver, Senior Partner of Silver Golub & Teitell, presented expert testimony that an emergency C-section should take only ﬁve minutes and that de Cholnoky responded too slowly. The result was that Spencer suffered brain damage and is now a quadriplegic, unable to walk, talk or eat normally.
During the trial, the defense attorney tried to show that Spencer was oxygen-deprived for a week or more before the delivery due to a placental abnormality that was no fault of the doctor. Using expert testimony, he reasoned there were two types of brain damage – one was the “global” injury from poor oxygenation before birth, for which the doctor was arguably blameless, while the second was the “focal” injury from the pinched umbilical cord, which made up the heart of the malpractice claim.
In post-verdict briefs, the defense attorney contended that the judge should have instructed the jurors to separate Spencer’s pre-existing injuries from any harm that occurred during delivery to keep his client from bearing ﬁnancial responsibility for injuries that were not her fault. “There is no recovery for the pre-existing condition,” he argued.
The plaintiff’s legal team saw it differently. Silver Golub & Teitell Partner Ziotas argued at trial that instead of showing two separate injuries the defense had simply established that Spencer was physically more vulnerable at birth. Therefore, he would fall under the “eggshell-skull rule” in tort law, which holds that a plaintiff is entitled to full compensation even if he was in a vulnerable state before being harmed by the defendant.
The judge wrote that he found the defense arguments unpersuasive, in part because the defense attorney cited no case law. “Connecticut law is clear that a defendant takes the plaintiff as he ﬁnds him,” the judge wrote.
Damages are sometimes allocated among more than one party, the judge noted, but that’s only when a co-defendant or the plaintiff is found to have “proximately caused” some of the injuries. In this case, the only person found negligent was de Cholnoky, the judge concluded.
The defense attorney set filed a brief that listed 22 reasons to set aside the verdict, grant a new trial or reduce the award. In their response, Silver and Ziotas countered that the jury instructions were well within a trial judge’s discretion and that the damages were supported by the evidence. The result was that the $38.5 million birth injury verdict was upheld. The award covers the 50-year life expectancy for Spencer, who was five at the time of the award.
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