$42,964,000 Verdict Against Dr. Robert Wallach, Dr. Lawrence Levitan, & Beth Israel Medical Center

Medical Malpractice Childbirth Negligent Pre-Term Delivery Respiratory Distress Syndrome Causes Spastic Diplegia And Brain Damage Lack Of Informed Consent For Oophorectomy

VERDICT: $32,964,000 for Christopher G. v. Dr. Wallach (6/0). $10,000,000 for Jan G. (6/0).

Breakdown: (Christopher G.) $400,000 for past pain and suffering; $10,000,000 for future pain and suffering; $858,000 for future physical therapy; $103,000 for future occupational therapy; $103,000 for future speech therapy; $16,000, 000 for future in-home custodial care; $5,000,000 for loss of earning capacity; $500,000 for home construction and modification.

(Jan G.) $3,500,00 for past pain and suffering and loss of a normal life; $6,500,000 for future pain and suffering and loss of a normal life. Jury: all female.
XIII/30-1 Medical Malpractice Childbirth Negligent Pre-Term Delivery Respiratory Distress Syndrome Causes Spastic Diplegia And Brain Damage Lack Of Informed Consent For Oophorectomy

Jan Goldberg, indiv. and as m/n/g of Christopher Goldberg v. Dr. Robert Wallach, Dr. Lawrence Levitan, and Beth Israel Medical Center 19255/90 6- week trial Verdict 1/11/96 Judge Marilyn G. Diamond, New York Supreme

Pltf. Atty: Harvey Weitz of Schneider, Kleinick, Weitz, Damashek & Shoot, Manhattan

Deft. Atty: Robert S. Deutsch of Aaronson, Rappaport, Feinstein & Deutsch, Manhattan
Facts:

Pltf., a 39-year-old part-time sales assistant, was diagnosed early in the pregnancy of her seventh child, Christopher, with an abnormal return on a routine pap smear. Pltf.’s general obstetrician found that it was adequate just to follow up the pap smear test, and noted that it did not indicate cancer. Toward her late-to-middle pregnancy, however, the repeated pap smear results were more serious, and she was referred to Deft. Wallach, a gynecological oncologist and Chairman of Obstetrics and Gynecology at Beth Israel Medical Center at the time of Pltf.’s pregnancy.

Dr. Wallach performed a cone biopsy. In this procedure, a cylindrical specimen is removed by means of a special instrument that pierces the skin or an organ. Pltf. contended that a piece of her cervix was removed so that Deft. could obtain a better view of what he was seeing in the next pap smear. The biopsy showed that there were no invasive cancer cells, but the edges of the sample were not clear. Deft. began to treat Pltf. with Thyroxine to increase fetal lung maturity to allow the child to be delivered pre-term if necessary. Deft. reasoned that Thyroxine would improve the child’s lung maturity, and thereby avoid the possibility of respiratory distress syndrome, which can lead to brain damage. Pltf. claimed that Deft. sought to speed along the delivery of the child so he could begin treatment of the cancer before it grew out of control.

Pltf. contended that Deft. negligently delivered the child prematurely, that he failed to obtain her informed consent, that he failed to fully explain to her that the drug was experimental, and that he failed to advise her of the risks involved in a premature delivery. Pltf.’s expert testified that Deft. Wallach should have administered steroids to help the infant develop more rapidly, and that he should not have treated Pltf. with Thyroxine. Pltf.’s oncological expert testified that she did not have cancer, but a carcinoma in situ, a preinvasive lesion. He further testified that this is a slow-moving disease that did not require Deft. to accelerate the pregnancy. Pltf. further contended that due to an error by one of the residents at Beth Israel in calculating the number of days since conception, the child was negligently delivered 5 weeks prematurely. Pltf.’s expert testified that the child suffered from respiratory distress syndrome and required mechanical ventilation. The respiratory distress syndrome caused insufficient oxygen to reach the child’s brain and caused brain damage.

Pltf. also brought a cause of action against Deft. for removal of her ovaries without her consent. Pltf.’s expert testified that in the normal course of abdominal surgery, a woman’s ovaries may have to be removed prophylactically to prevent cervical cancer. Pltf. testified that she never gave Deft. permission to remove her ovaries. Deft. presented Pltf.’s signed consent form for the procedure in which she agreed to a hysterectomy and a Caesarean section, and any other required surgery. On the line below Pltf.’s signature there was a phrase giving Deft. permission to perform a salpingectomy and an oophorectomy. Pltf. denied ever giving her consent to this procedure and contended that Deft. added the lines to the consent form after he had acquired her signature and after the procedure had been done. Pltf. noted that none of the doctor’s notes or nurse’s notes mentioned such a procedure. Pltf. contended that Deft. treated her too aggressively, and that this aggressive treatment resulted in the removal of her ovaries and Christopher’s brain damage.

Deft. Wallach contended that it was unclear whether Pltf. had cancer or not, and that he treated it aggressively because he believed that the life of his patient was in danger. He testified that cervical cancer can spread rapidly if given the chance. He denied that the child had been born prematurely, and that even if it was, Beth Israel was the best place for such a birth. Defts. noted that the child suffered a pneumothorax after birth, but did well in the post-delivery course. Defts.’ experts noted that there were no indications of brain damage in the medical record during the course of the child’s neonatal care at Beth Israel. Deft. also noted that the first signs of developmental delays did not manifest themselves until months after Pltfs.’ discharge from Beth Israel. Defts.’ expert testified that there are many causes of brain damage in childbirth, and that the cause of the injury in the instant case is undetermined. Dr. Wallach testified that he did obtain Pltf.’s consent for the oophorectomy prior to the delivery. He contended that he received the consent during a phone call in which he detailed the risks involved and explained the prophylactic purpose of the oophorectomy. He testified that he did not include this consent in his records because he obtained it during the phone call and later forgot to write it into his notes.

The jury found that it was a departure to administer such an aggressive course of treatment, given the risks to both the mother and the child. It also found that Dr. Wallach failed to obtain Pltf.’s informed consent by not explaining the risks to her and her child and by not obtaining her informed consent for the oophorectomy.
Injuries:

Christopher (7 years old at trial $32,964,000 verdict) brain damage with spastic diplegia. Pltf. is measured in the mildly to moderately mentally retarded range. He has difficulty walking. Pltf.’s expert testified that he is aware of his deficits, and that as the child matures, this will cause him emotional distress.

Jan (39 years old $10,000,000 verdict) depression; loss of libido; vaginal dryness; estrogen-related depression. Demonstrative evidence: hospital records; consent forms. Offer: $650,000; demand: $6,750,000; amount asked of jury: $26,500,000. Jury deliberation: 3 hours. Carrier: Federation of Jewish Philanthropies. Pltf. Experts: Dr. Donald Clarke, gynecological oncologist, Manhattan; Dr. Ronald Caplan, ob-gyn, Manhattan; Dr. David Kaufman, pediatric neurologist, Manhattan; Dr. Stuart Danoff, neonatologist, Stamford, Connecticut; Dr. Alvin Mickens, Ph.D., economist, Manhattan. Deft. Experts: Dr. Vicki Seltzer, ob-gyn, New Hyde Park; Dr. Andrew Steele, neonatologist, Queens; Dr. Yitchak Frank, pediatric neurologist, Manhasset.

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