Phila. jury returns $78.5 million plaintiff's verdict in case of fetal brain injury

The parents of a now-3-year-old girl who suffered brain damage as the result of hospital negligence back when the child was born have secured a $78.5 million verdict following a jury trial at state court in Philadelphia, according to the plaintiff’s law firm and court records.

Philadelphia attorneys Daniel S. Weinstock and G. Scott Vezina, of the firm Feldman Shepherd Wohlgelernter Tanner Weinstock & Dodig, first initiated the civil action back in late November 2009 on behalf of Pottstown, Pa. residents Steven Nicholson and Victoria Upsey.

The couple filed suit on behalf of their minor daughter, Parrys Nicholson-Upsey.

According to the complaint, which had been filed at Philadelphia’s Common Pleas Court, Upsey was approximately 36 weeks pregnant back on Aug. 10, 2008, when she went to Pottstown Memorial Medical Center with complaints of abdominal pain.

An ultrasound performed by Charles V. Touey, a doctor and the lead defendant in the case, showed there to be no detectable cardiac activity of the fetus and Touey ordered Upsey to be taken for further testing, the complaint shows.

It took more than an hour for doctors to get Upsey to radiology for a confirming ultrasound, after which Upsey was transported to the operating room to undergo an emergency cesarean section.

Upon delivery, the child was “hypotonic and lethargic,” the complaint had alleged, and the newborn was eventually taken to Thomas Jefferson University Hospital in Philadelphia for a “head cooling treatment.”

During the emergency medical transport, the lawsuit stated, the newborn’s endotracheal tube was “negligently allowed” to become clotted with blood, “compromising her already fragile respiratory status.”

The lawsuit further alleged that Dr. Robert L. Stavis, a neonatologist who had arranged for, and accompanied the baby during the hospital transport, negligently failed to monitor and maintain Parrys’ respiratory status, which resulted in poor breathing upon arrival at Thomas Jefferson.

As a result of the alleged negligence, the child developed spastic quadriplegic cerebral palsy secondary to a “preventable and irreversible hypoxic brain jury,” the lawsuit stated.

The lawsuit blamed the brain damage on the negligence of the various defendants, which originally had also included Bryn Mawr Neonatal Associates, Thomas Jefferson University Hospitals Inc., Main Line Health Inc., Jefferson Health System Inc., Women’s Health Care P.C., and Pottstown Hospital Company LLC, the court docket shows.

In a statement referencing the $78.5 million jury verdict, a damage award that included payments for future medical care, lost earnings, pain and suffering and emotional distress, plaintiff’s attorney Weinstock called the facts of the case “particularly shocking,” since the reason for the delayed delivery was that the obstetrician believed the baby was deceased.

Weinstock said the obstetrician performed an ultrasound using “outdated, insensitive and poorly maintained equipment” provided to him by Pottstown Memorial Medical Center.

“He actually told my client her baby had died, then 81 minutes later, the baby had come back to life,” Weinstock said in his statement.

At trial, the plaintiff’s attorneys presented evidence that showed the ultrasonography equipment used by doctors at the hospital to be antiquated and lacking the sensitivity of modern ultrasound machines.

Weinstock got the hospital’s risk manager to admit in court that despite a requirement such equipment be serviced annually, the equipment used in this case hadn’t been maintained in 10 years.

The plaintiff’s firm’s statement said that throughout the discovery process, during his deposition and even when first questioned during trial, the obstetrician contended with “100 percent certainty” that he had performed the ultrasound properly, and that the baby had indeed died, only to later come back to life.

Due to what the plaintiff’s attorneys contended amounted to hospital administration negligence, Pottstown Memorial didn’t have an ultrasound technician present at the time because it was a Sunday, and one had to be called from outside to verify the obstetrician’s “incorrect findings.”

Plaintiff’s attorney Vezina said in his own statement that while no amount of money would “make our clients whole again,” he was pleased to have secured the “best possible result for this family.”

The trial, which was overseen by Philadelphia Common Pleas Court Judge Mark I. Bernstein, had begun in mid-April.

The jury verdict was announced on May 4.