As reported in VERDICT SEARCH

MEDICAL MALPRACTICE Failure to diagnose diabetes led to child's mental retardation Verdict: (P) $4,096,900.00 Case Type: Childbirth, Medical Malpractice - OB-GYN Case: Oliver Pierre an Infant Under the Age of 14 Years, by His Mother & Natural Guardian Jocelyne Pierre v. Herbert Lieber M.D. Soo Ann Park, M.D., The Brookdale University Hospital & Medical Center & Lac P. Vu, M.D., No. 25162/02 Venue: Kings Supreme, NY Judge: Joseph S. Levine, Jr. Date: 03-01-2005 PLAINTIFF(S) Attorney: Michael K. Eidman; trial counsel to Seymour H. Eidman; New York, NY, for Oliver Pierre Expert: Richard Rosenfeld M.D.; Otolaryngology; Brooklyn, NY called by: Michael Eidman Romaine Schubert M.D.; Pediatric Neurology; Brooklyn, NY called by: Michael Eidman Edmond Provder; Vocational Rehabilitation; Hackensack, NJ called by: Michael Eidman Richard Luciani M.D.; OB-GYN -- See also Gynecology; Millburn, NJ called by: Michael Eidman DEFENDANT(S) Attorney: John W. Sullivan; Wilson, Elser, Moskowitz, Edelman & Dicker L.L.P.; New York, NY, for The Brookdale University Hospital and Medical Center Kenneth S. Oliver; Bartlett, McDonough, Bastone & Monaghan; Mineola, NY, for Soo Ann Park None reported; null, null, for Lac P. Vu Raymond W. Belair; Belair & Evans LLP; New York, NY, for Joseph Lieber Expert: Adiel Fleischer M.D.; OB-GYN -- See also Gynecology; Great Neck, NY called by: Raymond Belair Abraham Chutorian M.D.; Pediatric Neurology; New York, NY called by: Raymond Belair INSURERS: New York State Insurance Department Liquidation Bureau for Park (primary coverage) Medical Liability Mutual Insurance Co. for Park (excess) and Lieber Combined Coordinating Council Inc. for the Brookdale University Hospital and Medical Center FACTS: In August 1992, plaintiff Jocelyne Pierre, a 38-year-old pregnant woman, began treating with gynecologist Dr. Joseph Lieber for the delivery of her third child. Traces of glucose were found in the her urine and Lieber ordered a standard glucose tolerance test (GTT). However; Pierre was unable drink the liquid needed to perform the test and there was no further follow-up test. On Feb. 24, 1993, Pierre presented to The Brookdale University Hospital Medical Center in East Patchogue complaining of decreased fetal movement, excessive thirst, dry mouth and vomiting. Dr. Soo Ann Park attended to her and she was placed on a fetal monitor. She was released several hours later. On Feb. 25, Pierre presented to Lieber's office and was told to return the next day for additional monitoring. On Feb. 26, after reviewing the results, Lieber's office contacted Pierre's husband and told him to have his wife report to The Brookdale University Hospital Medical Center immediately. At about 1 :49 p.m. Pierre presented to the hospital. At about 7 p.m. after a second sonogram, which ruled out cord prolapse, Park ordered an emergency C-Section, after an abnormal scalp PH test. The sonogram, which was misread, indicated a 71b. to 81b. baby. At 10:29, Pierre gave birth to a son, Oliver. The child weighed 11 pounds, 14 ounces and needed to be resuscitated. His Apgar scores were 1, 2 and 5. (The Apgar system scores an infant's physical condition one minute after birth. The infant's heart rate, respiration, muscle tone, response to stimuli, and color are each graded zero, one or two, with zero being worst and two being best. The maximum total score is 10. An infant with a low score requires immediate attention to sustain life. The test may be re-performed five or more minutes after birth, to judge the recovery of an infant with a low initial score.) Oliver Pierre required respiratory assistance and was diagnosed with peri natal asphyxia and was acidotic. Doctors determined that he was hpolglycemic and suffered a seizure. He was placed on anticovulsants and remained in the prenatal intensive care unit for 17 days. Pierre, acting on her son's behalf and individually, commenced a medical malpractice suit against Lieber, Park, the hospital and another resident, Dr. Lac Vu. She claimed that the defendants departed from standard of care by failing to diagnose her gestational diabetes in a timely manner. Vu was never served. Pierre claimed that the defendants failed on Feb. 24, to appreciate the non-reactive and non-reassuring pattern on the fetal monitoring strip and perform a C-section. She also claimed that Lieber failed to measure and record the fundal heights during her third trimester. She claimed that these departures led to her son being born mildly retarded with learning and cognitive delays and disabilities. The plaintiffs reached a $1,150,000 settlement with Park and a $300,000 settlement with the hospital pretrial. The case proceeded against Lieber. Pierre's OB-GYN expert testified that Lieber departed from standard of care by failing to rule out gestational diabetes in the mother. He opined that although the main risk of undiagnosed gestational diabetes is a macrosomic baby, resulting in traumatic mechanical difficulties during delivery, a macrosomic-sized fetus is the main complication of gestational diabetes. He claimed that an uncontrolled maternal diabetic is at risk for fetal distress. Lieber claimed that he did not depart from standard of care. He claimed that he ordered a GTT in order to eliminate the possibility of diabetes. He maintained that the diabetes was not the proximate cause of the fetal distress. Defense counsel also argued that Pierre reported to the hospital on Feb. 24 complaining of back pain, which was diagnosed as irregular contractions. Lieber's expert OB-GYN testified that he did not depart from standard of care. However, he acknowledged that untreated gestational diabetes may lead to fetal distress. INJURY: As a result of the injuries sustained during childbirth, Pierre, now 12, is mildly mentally retarded and has been diagnosed with attention deficit disorder, as well as, cognitive and learning disabilities. He is enrolled in a fifth-grade inclusion class and requires the assistance of a full-time teacher's aide. His current reading and math skills are on a third-grade level and he has fine-motor skill difficulties. The plaintiffs vocational rehabilitation expert testified that Pierre would most likely be able to obtain minimum wage positions. He also testified that Pierre would greatly benefit from enrollment in a private school that specializes in teaching learning disabled children. PARTIAL SETTLEMENT:  Before jury selection, defendant Park settled for $1,150,000 and defendant Brookdale Hosptial settled for $300,000.  The trial proceeded against defendant Lieber. VERDICT INFORMATION: The jury rendered a plaintiffs' verdict and awarded $4,096,900. The jury assigned fault as follows: the hospital 55%, Park 25%, and Lieber 20%. It found that defendants departed from standard of care by failing to diagnose the mother's gestational diabetes. Oliver Pierre $2,250,000 Personal Injury: Future Lost Earnings Capability $250,000 Personal Injury: Past Pain And Suffering $1,375,000 Personal Injury: Future Pain And Suffering $3,500 Personal Injury: neurologist $35,000 Personal Injury: speech therapy $1,400 Personal Injury: audiologist $42,000 Personal Injury: tutoring $140,000 Personal Injury: private school APPEAL: Defendant Lieber filed an appeal.  The Appellate Divison, 2nd Dept., reversed the verdict and dismissed the complaint.  Pierre v. Lieber, et al, 37 AD 3rd 572 (2nd Dept, 2007)