Jurors sided with the disabled plaintiff and his mother after an attack on their expert witness by defense lawyers appeared to backfire…law.com, Efforts to Impeach Expert Backfired, Attorney Says After $37M Birth Injury Verdict, Charles Toutant, August 2024
Following a two-week trial before Superior Court Judge Danielle Walcoff, the jury on July 31 awarded $29,021,150 in pain, suffering, disability, impairment and the loss of enjoyment of life; $5,481,023 in future life care expenses; and $3,045,923 in lost future income. The judgment was entered against registered nurses Susan Venesz and Carol Daley and obstetrician-gynecologist Asuncion Ciceron.
Jurors found Venesz and Daley were each 40% at fault and Ciceron was 20% at fault.
The suit stems from the birth of Michael Markert with cerebral palsy at Shore Medical Center, formerly known as Shore Memorial Hospital, on June 10, 2008.
Michael sustained an ischemic stroke impacting the left side of his body during childbirth, giving him limited use of his left hand and a limp impacting his left leg. Michael, now 16, also suffers cognitive defects as a result of the negligence.
When Amareda Markert was in labor, hospital staff put her on an intravenous Pitocin drip. The hospital’s own protocol calls for monitoring of the patient while Pitocin is administered, and for the drug to be discontinued if her contractions become too frequent or too long in duration. But nurses attending to Markert failed to monitor the mother closely and increased the Pitocin dosage to the maximum allowable level. That caused a reduction in blood flow to the baby’s brain, causing the baby to have a stroke.
Once a doctor has ordered Pitocin, nurses have the duty to monitor the contractions and notify the doctor of any issues that arise, but the nurses attending Markert did not do those things. The nurses also failed to monitor the baby close enough to know delivery was imminent.
Michael appeared normal at birth, but was diagnosed with cerebral palsy at about four months of age when his mother noticed he was using his left arm less than the right.
Amareda Markert filed a malpractice suit in 2015. The plaintiffs maintained that Michael was injured because his brain was deprived of oxygen during birth, even though his blood had sufficient oxygen.
It is claimed that the defendants attacked the credibility of the plaintiffs’ medical expert, Barry Schifrin. The American College of Obstetricians and Gynecologists, which Wilkens describes as a trade organization that takes anti-tort law positions, censured Schifrin, Wilkens said. The Wall Street Journal reported in 2007 that Schifrin, who helped invent a widely used fetal monitor, has frequently appeared as an expert for plaintiffs in medical malpractice suits related to childbirth injuries, and that the ACOG censured him in 2004 over testimony he gave in a malpractice case.
The defense did not present their own medical expert but presented testimony from a physician named David Miller to undercut Schifrin’s testimony, Wilkens said.
“The fact that they made their main defense attacking the credibility of Dr. Schifrin was probably the worst thing they ever could have done because even the defense experts misstated literature to try to make it look like Schifrin was not credible,” Plaintiff’s lawyer said.
Lawyers Plaintiff James Wilkens along with Thomas Vesper of Westmoreland Vesper & Quattrone.