$3.84 Million Verdict for Doctors Who Did Not Properly Monitor Fetus

In the spring of 1998, 31-year-old plaintiff presented to the Ob/Gyn practice of Dr. Stuart Miro and Dr. Judith Stavis, Miro & Stavis, M.D., P.C. in Pomona, N.Y. She was interested in becoming pregnant and the doctors gave her advice. In autumn 1998, she became pregnant and continued seeking the services of Miro and Stavis for the management of her pregnancy. Miro and Stavis followed the pregnancy throughout its course.

The plaintiff mother claimed that the pregnancy was notable in that she had early first trimester bleeding; in that she consulted with Miro and Stavis because she did not feel that she was gaining enough weight or looked right; and that in her third trimester, she experienced heavy bleeding. The plaintiff mother had two early ultrasounds which were reported by Miro and Stavis as “normal” and a third ultrasound at approximately 20 weeks which she testified was also reported to her as normal. The plaintiff mother was last seen by Stavvis at a routine office visit on April 22, 1999. She claimed that she was informed at that time that everything was normal.

In May 1999, in her third trimester, the plaintiff mother and her husband, were on the Jersey shore when she began to bleed profusely. She called Miro and Stavis and was told to report to the local emergency room. After doing so, the plaintiff mother was transferred to a larger facility, Jersey Shore Medical Center, where she received her first indication that her child had Intra-Uterine Growth Retardation (IUGR), meaning that the child was abnormally small and could be severely chromosomally defective.

The plaintiff mother was transferred to the Westchester County Medical Center in Valhalla, N.Y., where she was admitted on May 21. At that institution, an amniocentesis was performed – the first one of the plaintiff mother’s pregnancy – which revealed that the baby was chromosomally damaged. However, it was not until a second amniocentesis result was obtained a few days before she gave birth that she learned the baby would suffer from Wolf-Hirschhorn Syndrome, manifested by mental retardation, physical disfigurement, hearing loss, inability to speak, respiratory difficulties and feeding difficulties, among other problems. The plaintiff mother remained hospitalized and under strict bed rest and medication until she delivered on June 11, 1999. Her child, thereafter spent about two months in the medical center himself; an additional two months at Blythedale Children’s Hospital in Valhalla, N.Y.; and has since been institutionalized at St. Margaret’s Center in Albany, N.Y.

The parents sued Dr. Miro, Dr. Stavis and their practice. They made a claim of wrongful birth , arguing that the plaintiff mother did not receive the standard of care necessary to properly monitor her pregnancy; that has she received the standard of care, under the circumstances, she would have been alerted to the fact that she was carrying a badly chromosomally damaged child; and that had she received that information in time to effect a termination, she would have. The parents specifically claimed that they should have been told that the bleeding for several weeks during the first trimester meant that there was a small possibility of chromosome damage. In addition, at some 12 to 14 weeks into her pregnancy, the plaintiff mother claimed that she was given inappropriate advice about Alpha Fetal Protein Testing, which she was told was not necessary because she was young and healthy.

The plaintiff mother also claimed that at her 20th week, she had an ultrasound which indicated that there was a two-week discrepancy in what the doctors had assumed was her due date based upon her last menstrual period and the development of the child. The parents alleged, and the defense expert obstetrician conceded, that if there were a two-week discrepancy in “dating” that this would be a “red flag” and a very important finding which should be followed up.

The ultrasonographer’s report showed a two-week developmental delay, but the plaintiff mother claimed that she was never told, nor was she informed of the need for a two-week follow-up ultrasound at approximately 22 weeks. If she had had the follow-up ultrasound, the defendants conceded that it would likely have shown “an additional fall-off in size and weight” and that this, too, could have led to the diagnosis of IUGR in a timely fashion. Stavis claimed that the plaintiff mother was told to return for a 22-week ultrasound and that she failed to appear for the test.

Another of the ways in which “dating” is monitored by obstetricians is by the measurements of fundal heights, which are taken routinely by the doctor during pregnancy. The defendants’ records had no indication that fundal heights measurements were taken during the plaintiff mother’s pregnancy. The defendants claimed that they did not take the fundal heights by measurement, which the parents claimed is the convention, but by finger widths, and that in any event they only chart fundal heights if they are abnormal. They also claimed that in their case they were always “normal” and there was no need to chart them.,Neither of the defendants had any recollection of the plaintiff mother as a patient at the time of trial, and thus they testified only to what their general practice was at the time of her treatment and based on their office records.

The doctors claimed that they believed that the plaintiff mother would have never terminated the pregnancy under any circumstances, anyway.,The child suffered from profound mental retardation, physical disfigurement, hearing loss, inability to speak, respiratory difficulties and feeding difficulties, among other problems.

The child has been confined at St. Margaret’s Center in Albany, N.Y., since he was approximately four months old and all sides conceded that he will stay there for the remainder of his life. Under New York Law, in a wrongful birth case, the only damages that are permissible are for the maintenance of the child from birth to 21 years of age. The defense did not contest the child’s life expectancy up to 21 years.

A Rockland County, New York jury found that both defendants departed from good medical practice in their management of the pregnancy.

The parties had previously stipulated that in the case of a plaintiff’s verdict, the damages awarded would be $3.84 million.