Kathryn C. Collins, second seated by Alexandra Downey Thomas, successfully defended a maternal fetal medicine specialist who, in 2015, was co-managing a high-risk pregnancy with an OB-GYN in Westchester County, New York. The case involved claimed in utero brain damage due to the development of placental insufficiency resulting in intrauterine growth restriction (IUGR).
In this complex case, Feldman, Kleidman, Collins & Sappe LLP’s (FKC&S) client cared for the mother and baby throughout the entire pregnancy. In the late third trimester, the baby, who had consistently measured small, experienced a change in growth velocity between the 36th and 38th weeks of gestation. In an effort to ensure that the placenta was functioning and the baby was not in a hypoxic environment, FKC&S’s client performed various prenatal testing to ensure the health of the fetus.
At every visit, biophysical profiles were performed, amniotic fluid levels were evaluated and umbilical artery dopplers were performed. In addition, non-stress tests were performed weekly by the plaintiff’s OB-GYN. All testing was normal, evidencing that the fetus was healthy. Given the change in growth velocity in a baby who was already measuring small, the maternal fetal medicine specialist recommended delivery of the baby at 39 weeks.
When the infant was delivered at White Plains Hospital, meconium was present, there was some fetal respiratory distress, he had questionable hypotonia or low muscle tone and he weighed only 4 pounds, 14 ounces.
The infant was transferred to the neonatal intensive care unit (NICU) where he received temporary respiratory assistance via continuous positive airway pressure (CPAP). CPAP provides a steady gentle stream of pressurized air through a tube and mask to assist in oxygen intake. Premature infants or small babies born via cesarean section, as this child was, sometimes need assistance as their lungs transition to breathing air. The infant required CPAP assistance for only 2.5 days and subsequently breathed on his own without issue.
The child went on to experience feeding difficulties, including difficulty latching and bottle-feeding. As a result, he remained in the White Plains Hospital NICU for 11 days and then — at the parents’ request — was transferred to the NICU at Maria Fareri Children’s Hospital, a member of the Westchester Medical Center Health Network (WMCHealth), where he stayed for an additional 19 days. Following his discharge, the infant exhibited delayed developmental milestones, low tone, decreased growth velocity resulting in short stature, he required early intervention services and was found to have motor delays affecting his speech and balance, as well as cognitive delays.
Throughout the child’s NICU admissions, none of the treating specialists at White Plains Hospital or Maria Fareri Children’s Hospital diagnosed the child with hypoxic brain injury. Rather, the consistent theme throughout the NICU charting was that there was a genetic issue at play. In fact, providers at both hospitals conducted extensive testing to rule out non-genetic causes, including a head ultrasound and numerous laboratory tests, all of which were normal.
At the time of the child’s discharge from Maria Fareri Children’s Hospital, follow-up with a geneticist was recommended, as was the performance of a microarray to evaluate for genetic abnormalities that could explain the child’s course, given the presence of dysmorphic features — physical abnormalities often associated with genetic conditions.
At eight months of age, a microarray was performed on the infant which revealed two microdeletions, one of which was a 14q32.2 microdeletion known to be associated with pre- and post-natal growth restriction, low tone, feeding difficulties and both developmental and cognitive delays. The deletion was ultimately found to be ‘De Novo’ meaning it was not an inherited deletion but rather a spontaneous one, which made it more likely to be pathogenic.
Regardless of the genetics report, plaintiff’s counsel argued that placental insufficiency caused the baby to measure small in utero and that the maternal-fetal medicine specialist and obstetrician should have delivered the infant earlier. They further contended that the failure to do so resulted in a hypoxic environment and subsequent brain damage.
Plaintiff’s counsel called seven experts, including a genetics expert, in an effort to establish evidence of hypoxia and to show that at least some of the child’s issues were attributable to a hypoxic event.
While plaintiff’s OB-GYN and maternal fetal medicine experts conceded that there was no evidence from the pre-natal testing performed by either FKCS’s client or the OB-GYN that the infant was in distress, it was their opinion that the already small infant should have been born earlier — by 38 weeks at the latest. They both opined that the placenta evidenced dysfunction because it was stained with meconium and because there was one thrombus, or blood clot, present. Further they testified that meconium only occurs during times of distress, such as hypoxia, and as a result the child must have suffered a hypoxic event.
The defense OB-GYN and maternal fetal medicine experts opined that meconium in term pregnancy is present in up to 30 percent of deliveries and does not signify fetal distress. They opined that meconium can stain the placenta within one hour, and that the placental pathology findings were normal and not indicative of dysfunction.
Furthermore, the defense maternal fetal medicine expert testified that umbilical artery dopplers would be abnormal if the placenta was not providing the proper nutrition to the infant and the infant was suffering from hypoxia. Defense experts testified that, when prenatal testing is normal, the goal is to continue the pregnancy to 39 weeks, at which point the risks associated with early delivery are significantly reduced.
Plaintiff’s genetics expert, who traveled from Miami, Florida to testify, conceded that she had not reviewed the literature on the specific genes encompassed by the infant’s 14q32.2 microdeletion and therefore could not explain the significance of the affected genes to the jury. She further testified that a genetic report indicates only a person’s increased risk for certain conditions and is not determinative beyond that.
The defense genetics expert, who developed tools used in genetic diagnosis and previously led the pediatric genetics departments at both Columbia University Medical Center and Boston Children’s Hospital, testified that the YY1 gene, included in the infant’s microdeletion, was the sole cause of the child’s condition. The expert cited extensive studies of individuals with deletions of this gene, which, she testified, consistently present in a manner similar to the child in this case.
In terms of damages, plaintiff’s counsel suggested to the jury a verdict of approximately $26,000,000 for the child. In support of that figure, plaintiff presented a life care planner who testified that, due to the child’s hypotonia, he would likely require scoliosis surgeries and due to his cognitive delays, he may need private schooling, which he opined would be more beneficial than the public school services the child was already receiving. The life care planner further testified that the child would require an aide at all times and would never be able to live independently.
Plaintiff also called a pediatric neurologist who opined that, although the child had progressed academically to the point of taking mainstream science and social studies classes, he would likely not be employable in any meaningful capacity. The neurologist further testified that the child’s condition could not be fully explained by genetics and that the constellation of symptoms was consistent with those he frequently observes in patients who have experienced hypoxic events.
After a four-week trial and 23 minutes of deliberations, the jury returned a verdict in favor of FKC&S’s client, finding that the maternal fetal medicine specialist had rendered proper care during the pregnancy. The jury additionally found that the OB-GYN provided appropriate care in the management of the pregnancy.