DuPont v. STATE OF NEW YORK, #2008-018-602, Claim No. 108040
Medical malpractice claim against obstetrician for failure to deliver at 38
weeks given mother's bicornate uterus, Intrauterine Growth Restricted Fetus and
potential placental insufficiency. Court found doctor breached the standard of
care by not heeding all of the risks for the pregnancy and failing to deliver
when the standard of care, as described by the doctor, required for a
Intrauterine Growth Restricted Fetus. Infant was born suffering bradycardia and
hypoxia which caused spastic quadriplegic cerebral palsy, mental retardation and
a seizure disorder. Court awarded $14,715,304 in damages for reduced life
expectancy of 30 years, loss of earnings, Life Care Plan, and past and future
pain and suffering
KAYLA DuPONT, an Infant Under the Age of Ten Years by and through MARY and MICHAEL T. DuPONT, her Parents and Natural Guardians
Footnote (claimant name)
STATE OF NEW YORK
Footnote (defendant name)
DIANE L. FITZPATRICK
FELDMAN, SHEPHERD, WOHLGELERNTER, TANNER & WEINSTOCK
By: Daniel S. Weinstock, Esquire
Edward S. Goldis, Esquire
BOTTAR & LEONEBy: Edward S. Leone, Esquire
ANDREW M. CUOMO
Attorney General of the State of New York
By: Patrick F. MacRae, Esquire
Assistant Attorney General
April 22, 2008
See also (multicaptioned
This is the claim of Kayla DuPont brought by her parents, on her behalf, as a
result of the alleged medical malpractice of the defendant in treating
Kayla’s mother, Mary DuPont, during the course of her pregnancy from July
23, 1992, until Kayla’s delivery on January 14, 1993. Kayla was
delivered on January 14, 1993, by caesarean section when it was noted that a
full placental abruption
had occurred and
resulted in her suffering intrapartum
and later being diagnosed with
cerebral palsy, mental retardation and a seizure disorder.
A. The Issue of Liability
a. Pregnancy and Prenatal Care
When Mary DuPont was pregnant, with her fourth pregnancy, she was referred to
the State University of New York Health Science Center (hereinafter University
Hospital), Perinatal Center of the Department of Obstetrics and Gynecology, as a
result of three prior habitual abortions and a suspected bicornuate uterus based
upon an ultrasound
performed at eight weeks.
The expected due date for this pregnancy, based upon Mrs. DuPont’s last
menstrual cycle, was January 18, 1993. Mary DuPont was 21 years old at the
time, weighed 117 pounds, and was 5 feet, 1 inch tall. On July 23, 1992, she
began to treat with Dr. Richard Aubry, Professor and Director of Obstetrics at
the Perinatal Center. An ultrasound confirmed a bicornuate uterus that was
heart-shaped. A bicornuate uterus, as defined by the medical professionals in
this case, is a congenital abnormality which presents as a uterus divided into
two “horns” or cavities separated by a septum. The extent of the
division varies in each case, and the septum can be a small protrusion into the
uterine cavity or it can be so dramatic as to actually divide the uterus into
two separate uteruses. By ultrasound performed later in Mrs. DuPont’s
pregnancy, the septum was measured and found to be 10 millimeters thick and
extending down into the uterus about 2½ centimeters. At trial, Dr. Robert
Silverman, another doctor in the practice with Dr. Aubry at the Perinatal
Center, described this septum as very small.
During the first visit with Dr. Aubry on July 23, 1992, he found, based upon a
screening ultrasound, that the fetus was appropriate for gestational age based
upon the last reported menstrual cycle, and lying in a transverse position -
making it difficult to identify the side of the uterus on which the placenta was
Dr. Aubry planned to perform a
on Mrs. DuPont within four weeks. He
noted, at that time, that the pregnancy was “very high risk because of her
recurrent miscarriage history and the seemingly clear diagnosis of bicornuate
Another ultrasound was performed on July 28, 1992, by a Dr. Vinu Patel, another
doctor at the Perinatal Center. At that time, the gestational age calculated
from Mrs. DuPont’s last menstrual period was 15 weeks, 1 day, and the
fetus measured at 14 weeks, 1 day (a 7-day lag). With a 2-week margin of
error, the fetus measured at an appropriate size for that gestational age. It
was noted that the pregnancy was in the right horn of the uterus. Based upon
the ratio of the abdomen to head circumference, the fetus’s growth at this
point was symmetrical. This growth ratio, according to Dr. Aubry, should stay
fairly consistent and remain at less than a critical level.
Mrs. DuPont saw Dr. Aubry again on August 5, 1992, and her blood was drawn for
a Maternal Serum Alpha Fetal Protein (MSAFP) test. This test screens for neural
tube defects such as spinal bifida or meningomyelocele, and chromosome
abnormalities such as Down’s Syndrome or Trisomy 21. Even when these
abnormalities have been ruled out, the test may identify a pregnancy that may be
at risk of intrauterine fetal growth restriction (IUGR), or suboptimal growth,
that is weighing less than the tenth percentile weight for gestational age. On
August 7, 1992, the MSAFP test results came back significantly elevated. Her
blood was drawn again on August 11, for a repeat MSAFP test which, again, came
back elevated. As a result, another ultrasound was performed on August 18, by
Dr. Silverman. The gestational age was 18 weeks, 1 day, and the age determined
by the ultrasound indicated 17 weeks, 3 days (a 5 day lag). The humerus, the
long bone of the arm of the fetus, measured at only 16.3 weeks. Other
measurements and observations were “unremarkable,” and Dr. Silverman
found no explanation for the elevated MSAFP test. The fetus’s heart
rate, the amniotic fluid levels, and the placental grade were all good.
Mrs. DuPont saw Dr. Aubry again on September 10 and 24. On September 24, she
was referred to a registered dietician because of poor weight gain. An
ultrasound was scheduled for October 8, 1992. On that date, the sonogram
reflected the age, by last menstrual period, was 25 weeks, 3 days, and the age
by ultrasound measurements was 23 weeks, 6 days (a 1 week, 4 day lag). The
humerus measured at 23.9 weeks. The head and abdomen circumference showed
symmetric growth development. No fetal abnormalities were found, and the heart
rate and amniotic fluid level were normal. The fetus was cephalic or in a
Mrs. DuPont was seen on October 29 and November 4, 1992. She had no complaints
and reported that the baby was active. On November 19 she saw Dr. Aubry again,
and another ultrasound was performed by Dr. Silverman. The fetus’s
gestational age on that date was 31 weeks, 3 days, measurements reflected an age
of 28 weeks, 4 days (a lag of 2 weeks, 6 days). It was noted that the
biometry, measurements of the head and abdominal circumference and femur length,
indicated less than expected interval growth and possible early IUGR. The
sonogram noted the heart-shaped uterus, and that the placenta was implanted
posteriorly in the right side. The fetus was in a frank-breech position, that
is butt first with the legs up near the head. The fetal heart rate and amniotic
fluid were normal.
A Continuous Wave Doppler (CWD) study was also done on November 19. A CWD is a
different type of ultrasound which looks at pulsations in the umbilical and
uterine vessels, and it allows an approximation of the blood flow through
different vessels in order to assess the level of oxygen and nutrients being
delivered to the baby. For this study, a measurement or S/D ratio is taken, the
systole (S) and the diastole (D): the filling and pumping. Three measurements
are taken to obtain the mean for each vessel. These measurements indicate how
much resistance there is to the blood flow within a vessel in the placenta or
uterus. So, the S/D ratio is taken for the umbilical artery, and for the right
and left arteries that bring blood to the uterus. The S/D ratio for the
umbilical artery on that date was 2.83, 1.71 for the right uterine artery, and
an elevated reading of 4.86 for the left uterine artery. The amniotic fluid
level was normal. Dr. Aubry’s orders from that date directed Mrs. DuPont
to return to the office in two weeks and have another CWD. Dr. Aubry testified
at trial that he suspected early IUGR at that point.
Mrs. DuPont was seen again on December 10, 1992. At that time, she noted
occasional contractions and increased vaginal discharge, but denied any fluid
leak. Positive fetal movement was noted. A CWD study was done and the S/D
ratio for the umbilical artery was 2.46, for the left uterine artery 2.50, and
1.49 for the right uterine artery.
ratio for the left uterine artery was again elevated. The amniotic fluid level
was normal. The fundal height measurement, that is a measurement taken from
approximately the 22nd to the 34th week of gestation which measures from the
woman’s symphysis, the bone just above the pelvis, to the
the large, upper end of the uterus, in
centimeters, should equal the number of weeks of gestation. On this date, the
fundal height was 31 centimeters, although Mrs. DuPont was at 34 weeks
gestation. A discrepancy of 4 centimeters is usually a benchmark for some
concern or pursuit of further inquiry.
On December 17, Mrs. DuPont voiced no complaints and described the fetus as
active. A nonstress test was performed, and all of the medical professionals
who testified agreed that it was “reactive.” A nonstress test uses
an electronic fetal heart rate and uterine contraction monitor to predict fetal
well-being by looking at the fetal heart rate to see whether there are two
episodes of acceleration of the baby’s heart rate of at least 15 beats per
minute over a 20 minute period. If there are two such accelerations then the
test is called “reactive.” In simpler terms, it is the ability of
the fetus to increase its heart rate in response to fetal movement. It is, by
all accounts, the best predictor of a well-oxygenated fetus.
The last ultrasound before January 14, was also performed on that date due to
the “uterine anomaly” or bicornuate uterus. This ultrasound report
reflects a gestational age of 35 weeks, 3 days, and an age, based upon the
measurements, of 31 weeks, 1 day (4 weeks, 2 day lag). The head/abdomen ratio
was 1.05, and the growth development, according to Dr. Aubry, was symmetrical.
The baby’s position was still breech, the heart rate was normal, and the
amniotic fluid was normal. Again, no gross anomalies were noted, but there was
less than expected interval growth, and the lag had increased to 4 weeks. All
measurements fell below the 10th percentile for a 35-plus week gestational age.
It was noted in the ultrasound report that “symmetrical IUGR” must
be considered. Symmetrical IUGR, as opposed to asymmetrical IUGR, was a
distinction of greater import in 1992-93 than currently. As noted by all the
experts in this case, symmetrical IUGR refers to a fetus that has symmetrical
restricted growth, or is consistently small, whereas asymmetrical, also referred
to as “head saving,” reflects that the baby’s brain and head
continue to grow at a steady rate, but the rate of growth slows for the abdomen
and the rest of the body. A CWD study was also conducted which reflected a mean
S/D ratio for the umbilical artery of 2.29, 4.38 for the left uterine artery,
and 1.80 for the right uterine artery.
measurement was, again, high for the left uterine artery.
On December 21, a nonstress test was performed and was “reactive.”
The cerclage was removed. Notes from that visit reflect that the sonogram
(conducted on December 17) showed the baby in a cephalic presentation, although
the ultrasound report reflects “breech,” the amniotic fluid index
(AFI) was 8, reflecting no oligohydramnios or insufficient
Notations from that visit also
state that the sonogram “shows IUGR probably secondary to uterine
Dr. Aubry also noted
that the daily fetal motion recording (DFMR), the CWD, and the nonstress test
were okay. DFMR instructions are given to the patient to keep track of the
baby’s movements and to report if less than 10 movements are perceived
within an hour. Dr. Aubry’s note then provides, “hope labor starts
soon, will do 2 x/wk NST [nonstress test twice per week]. Probably induce if no
labor in 10-14 days.”1
Aubry’s orders from that visit were for a nonstress test to be conducted
on Thursday, in the morning, and to have the patient return in one week to see
The next visit was December 24 for a nonstress test. The nonstress test was
again “reactive.” Mrs. DuPont complained that she thought the baby
had turned to breech. The office notes reflect that Dr.
indicated the baby was cephalic, and
Dr. Aubry’s orders direct Mrs. DuPont to return to the office on Monday
afternoon for a nonstress test and a recheck of her cervix for possible
On December 28, Mrs. DuPont returned to the office for her next visit. At
that time, she complained of decreased fetal movement. A nonstress test was
performed and was reactive. The fundal height measurement for that date was 33
centimeters, although Mrs. DuPont was at 37-plus weeks gestation. Notes from
Dr. Aubry’s examination indicate that the “cervix [was]
unfavorable” based upon palpation. This referred to the fact that the
cervix had not yet become “ripe” for labor, or in other words had
not become effaced, shortened and softened. Dr. Aubry’s orders from that
visit were for Mrs. DuPont to return to the office in one week to have daily
fetal motion recording, nonstress test, CWD, and fluid check at next visit.
Mrs. DuPont was given the telephone number of labor and delivery. These orders
reflect a change from his earlier direction for nonstress tests twice per week
to once per week. Dr. Aubry testified that any plan for a patient’s care
is reevaluated at the next visit, based upon the circumstances and findings at
that time. Based upon the results of the office visit of December 28, the
reactive nonstress tests, the normal CWD findings, the normal amniotic fluid
levels, and the sonograms showing the fetus was progressing, it was his judgment
that twice weekly nonstress tests were no longer necessary.
The next visit was on January 7, 1993. Mrs. DuPont had no complaints, and she
reported the fetus was active. A nonstress test was performed that was
reactive. A CWD was also done which indicated a S/D ratio for the umbilical
artery of 2.86 , 2.00 for the left uterine artery, and 1.67 for the right
uterine artery. The notes reflect the left uterine artery reading was okay;
although, in charting the ratio, it was shown to be above the 95th percentile,
which would be abnormal.1
fluid amount was normal. The fundal height measurement was 31 centimeters, the
same measurement obtained at 34 weeks, and 2 centimeters less than the
measurement on December 28. Dr. Aubry’s orders were to have Mrs. DuPont
return in one week and to schedule a sonogram for that visit.
Mrs. DuPont never made it to her next scheduled visit, because on the morning
of January 14, 1993, while staying at a friend’s house during her last
weeks of pregnancy to be closer to the hospital, she started bleeding. The
blood was bright red and formed a puddle on the floor. Mrs. DuPont also had
some pain. She told her friend’s son to go and get his mother who was
upstairs. She came down and helped Mrs. DuPont lay down on the couch while she
called 911. An ambulance arrived and took Mrs. DuPont to Crouse Irving Memorial
Hospital. When she arrived at 8:30 a.m., it was noted that she was having red
vaginal bleeding; she was pale and complained of lower abdominal pain, her
abdomen was tense, and a fetal heart beat could not be found. Later, a fetal
heart rate of 110 beats per minute was found but it dropped to 30-40 beats per
minute. A heart rate of less than 110 beats per minute for 10 minutes or longer
is referred to as fetal bradycardia. By 8:45 a.m., Mrs. DuPont was prepped for
a caesarean section, pediatrics and anesthesia were called. A placental
abruption was suspected. The infant claimant was delivered at 8:52 a.m., by
Dr. Silverman. The baby was in the uterus in a cephalic position and had not
yet descended into the pelvis. When delivered, Kayla’s Apgar score at
one minute was zero. The Apgar score, is a score from 0 to 10, which is given
for appearance or color (A), pulse or heart rate (p), grimace (g), aptitude (a)
and respirations (r). At five minutes, her Apgar was 1 and at ten minutes it
The ph lab testing of the umbilical
cord artery showed a result of 6.64, which was flagged as low.
It is fairly undisputed among the experts that the bradycardia and hypoxia in
the infant claimant, to the extent presented at birth, resulted in her spastic
quadriplegic cerebral palsy.
The infant claimant was born weighing 2,485 grams, below the 10th percentile in
weight for her gestational age.
b. The Medical Professionals/Experts
Four doctors testified in this case, and each had a slightly different
assessment of the risks associated with Mrs. DuPont’s pregnancy, a
different understanding of the standard of care and evaluation of the facts.
Dr. Aubry testified at trial and his deposition transcript was admitted into
Dr. Aubry had no independent
recollection of treating Mrs. DuPont, all of his testimony, both at the
deposition and at trial, was based upon the medical records and notes, his
custom and practice, and his medical knowledge. Dr. Aubry was part of a group
practice at the Perinatal Center. Mrs. DuPont was Dr. Aubry’s patient,
although she did see other doctors in the practice. Dr. Aubry did not consult
with any other doctor about her case, and he acknowledged responsibility for the
medical decisions that were made about Mrs. DuPont’s care and treatment.
Based upon the medical records, Mrs. DuPont was compliant with the orders and
It is clear and undisputed that Dr. Aubry was a specialist in the area of
maternal fetal medicine. He not only had extensive training, but was one of the
doctors who started a high risk pregnancy clinic locally which evolved into one
of the first Regional Perinatal Centers, joining the disciplines of high risk
obstetrics with neonatal intensive care. The center provides prenatal care for
high risk pregnancies to women in 15 counties locally. He also educates and
trains new doctors in the area of obstetrics and gynecology as a full professor
at Upstate Medical Center.
Dr. Aubry testified at trial that the major risks for a pregnant patient with a
bicornuate uterus were habitual miscarriage, often due to implantation on the
septal area where there is less blood supply, premature labor, premature rupture
of membranes, more likely to have a breech presentation, problems with labor
with discordant uterine contractions, placenta previa or placental abruption,
postpartum hemorrhage or incomplete delivery of the placenta. During his
deposition, Dr. Aubry’s list of complications consisted predominantly of
recurrent miscarriages, premature rupture of membranes, premature labor,
“and all the sequela from it to do with neonatal death, neonatal
morbidity,” fetal growth restriction, and intrauterine fetal demise. He
did not mention a placental abruption as a
A placental abruption, he testified
at trial, is a risk in any pregnancy at a rate of 1 in 100-200 births, or ½
to 1 percent, which increases 2-to-3-fold for a woman with a bicornuate uterus.
He testified, however, that when the placenta is not attached to the septum, and
the pregnancy is entirely within one horn of the uterus, the risk falls to
slightly over 1 percent.1
cross-examination, Dr. Aubry acknowledged that a placental abruption is a known
complication of a bicornuate uterus, and the increased risk to a woman with a
bicornuate uterus is 2-to-4-fold. He also testified that there is an increased
risk of a placental abruption regardless of where the placenta is attached to
the uterus. Yet, at his deposition, Dr. Aubry testified that he did not
recognize that Mrs. Dupont’s bicornuate uterus placed her at an increased
risk of a placental abruption, and he did not factor that into his treatment and
Dr. Aubry testified during his deposition that having a bicornuate uterus
predisposes a fetus to IUGR, and when a woman with a bicornuate uterus has a
growth-restricted fetus, the mechanism for the growth restriction is probably
placental insufficiency. Dr. Aubry did not pursue the cause of the IUGR for
Mrs. DuPont’s fetus, as he testified at his deposition, but he later
testified that he thought the cause was something other than placental
insufficiency, specifically, that it was an issue with uterine blood flow.
Unlike his deposition testimony, Dr. Aubry testified at trial that patients with
uterine anomalies, such as Mrs. DuPont, have a higher incidence of symmetrical
growth restriction which suggests something intrinsic to the fetus or caused by
the limited space, as opposed to asymmetrical growth restriction which is
associated with placental insufficiency. Despite the references in the office
notations and sonogram report that this was symmetrical IUGR, Dr. Aubry, at his
deposition, in response to a question inquiring as to why he felt Mrs. DuPont
was at less of a risk on December 28 than on December 21, testified,
“[w]ell, she was gaining weight. The baby was continuing to be active.
The testing results were consistently reassuring. So, it appears that the
placental insufficiency that was diagnosed, was not so much something that
affected oxygenation. And, therefore, the baby was not as - seemingly not as in
an acute edge of problems as it had been in earlier
Thereafter, he testified
that he had not made a complete diagnosis of placental insufficiency; rather,
IUGR can be based upon a number of etiologies, only one of which is placental
insufficiency and the testing revealed placental
At trial, Dr. Aubry testified
that his December 21 office note that the IUGR was “probably secondary to
uterine anomaly” suggested that his underlying thought process was that
the cause was uterine anomaly and not placental insufficiency, although he never
ruled out placental insufficiency.
Dr. Aubry testified that his notation from the December 21 office visit
indicating that he would do twice weekly nonstress tests and probably induce
labor in 10 to 14 days, reflected his intention to stay on top of the fetal
status for the next couple of weeks, because Mrs. DuPont was “starting to
show some indicators of some
despite the fact that up
to that point the “parameters of fetal welfare were okay.” He
testified that when babies show IUGR he “like[s] to see the baby in the
nursery if it’s ready.” 2
Dr. Aubry’s reference in the notation to possible induction was not, he
testified, his intention to deliver Mrs. DuPont within that time frame, but
rather an indication of his thought process for the other doctors in his
practice. Although he testified that Mrs. DuPont was always scheduled to see
him on her visits from December 17 until delivery.
Dr. Aubry testified at trial that at Mrs. DuPont’s December 28 visit, the
preceding intensified surveillance had revealed “no trending [toward]
and he felt it
was no longer necessary to continue the twice weekly nonstress test regimen. At
that visit, palpation of Mrs. DuPont’s cervix indicated it was not
favorable for delivery. Dr. Aubry testified that without some indication that
the fetus wasn’t doing well, to induce labor with an unfavorable cervix
would be adding a hazard to the fetus of prolonging labor, developing perinatal
asphyxia or fetal hypoxia due to hard to control contractions. At his
deposition, Dr. Aubry indicated that induction could result in a hypertonic
pattern that could put the baby in distress or cause placental
In Dr. Aubry’s opinion,
with an unfavorable cervix, it was safer to allow the baby to remain in utero.
However, on cross-examination, Dr. Aubry acknowledged that during the last four
weeks of Mrs. DuPont’s pregnancy, he had no evidence that the fetus was
growing in light of the stagnant fundal height measurements and no sonogram
measurements. At trial, Dr. Aubry testified that the risks for delivery of a
38-week-old fetus, compared to a 40-week-old fetus are greater and complex
beyond just fetal lung maturity, but he could not identify other risks during
his deposition. At trial, Dr. Aubry opined that fetal lung maturity at 38 weeks
was generally around 70 percent and at 39 weeks approximately 80 percent. The
amniocentesis, to test for lung maturity at this stage, Dr. Aubry agreed was
“a low risk procedure.”2
Aubry agreed that if the risks associated with performing an amniocentesis were
considered, and fetal lung maturity was shown to be adequate, then delivery of
an IUGR fetus at 38 weeks would be appropriate. In fact, he said that the
standard of care in a fetus with IUGR with demonstrated fetal lung maturity
requires delivery at 38 weeks.2
weighing the risks of delivery at 38 weeks, the increased risks of a placental
abruption and fetal death are factors which the standard of care requires be
Dr. Aubry never mentioned the
risk of a placental abruption in his deposition and testified then that it was
not a factor in his decision making process for this pregnancy; it was not until
trial that he added it to the risks to be considered. When the risk of another
two weeks in utero is greater than the risk of an induction or a C-section, Dr.
Aubry agreed that the standard of care requires delivery.
Dr. Aubry found Mrs. DuPont’s cervix still unfavorable on January 7,
1993, and ordered a sonogram for the next visit. He reasoned that at the next
visit, approximately four weeks from her previous sonogram on December 17, would
have passed, and he likes to watch fetal growth with serial sonograms every two
to four weeks. At his deposition, he testified that the reason he ordered the
sonogram was because he was concerned that the fetus’s growth restriction
had continued to worsen.2
cross-examination, Dr. Aubry testified serial sonograms mean having a sonogram
done every four to six weeks. He continued his direct testimony by adding that
at the next scheduled visit (January 14) Mrs. DuPont would have been 39-plus
weeks, and he would have “almost certainly” induced her within days
after the next visit after seeing the fetal
Dr. Aubry opined that the last two office visits (December 28 and January 7)
showed a well-oxygenated fetus by the reactive nonstress tests, normal amniotic
fluid levels by the January 7 CWD study, and normal umbilical artery flow, which
he felt was critical to show the fetus was normally perfused with no evidence of
placental insufficiency. With these test results and without evidence of
placental insufficiency, Dr. Aubry, at trial, felt that the uterus was not a
hostile environment for the fetus, and the standard of care did not require
delivery, despite his later testimony on cross-examination that with fetal lung
maturity the standard of care does require delivery of an IUGR fetus at 38
Dr. Robert K. Silverman, a practitioner with Dr. Aubry at the Perinatal Center,
also testified. Dr. Silverman performed the ultrasound examinations upon Mrs.
DuPont on August 18, October 8, November 19, and December 17, 1992, and the
four CWD studies. Dr. Silverman also performed the emergency caesarean section
on Mrs. DuPont on January 14, 1993, after the placental abruption. He is
currently an Associate Professor in the Department of Obstetrics and Gynecology
and the Director of Maternal Fetal Medicine in the High Risk Obstetrics and
Gynecology Divisions at University Hospital and Crouse Irving Memorial
Dr. Silverman reviewed the ultrasound reports and testified at trial that the
ultrasound of October 8, 1992, showed early signs of IUGR, but the report fails
to indicate any concern at that time. By the November 19 ultrasound, signs of
IUGR were present and noted in his report, and in the December 17 report he
states, “symmetrical IUGR must be considered.” On
cross-examination, Dr. Silverman agreed that looking at the growth rate of the
fetus over the course of the four sonograms, the head circumference and fetal
weight grew at a proportionate rate, but the abdominal circumference and femoral
length did not.
The S/D ratio which showed an elevated left uterine artery reading in each
Doppler study did not concern Dr. Silverman, as he testified that he would
expect a different ratio in the horn in which the fetus was growing compared to
the other side. He felt that the left uterine artery reading was not relevant to
this case, and he emphasized that the umbilical artery reading is normal which
reflects that the fetus is able to get nutrients and oxygen. Dr. Silverman
indicated that this was the significant measure to assess placental sufficiency
or insufficiency. He testified that if there was placental insufficiency there
would be markedly abnormal readings - in the 97.5 percentile. Umbilical artery
readings would be in the range of 10 to 12. Here, the umbilical artery readings
for the CWD studies performed never went above 2.86, although the ratios for the
left uterine artery went off of the diagram chart on November 19 and December
Normal Doppler studies, according to
Dr. Silverman, rule out placental insufficiency, but on cross-examination, Dr.
Silverman acknowledged that there are types of placental insufficiency that can
occur despite normal Doppler readings.
Dr. Curtis L. Cetrulo, was called as claimants’ expert. He, too, is
Board Certified in Obstetrics and Gynecology and Maternal Fetal Medicine and is
licensed in Massachusetts. In 1992, he was a full professor at Tufts University
School of Medicine and had a practice specializing in high risk patients in the
field of Maternal Fetal Medicine. He was actively treating patients with
bicornuate uteri and complications such as IUGR in 1992 and 1993. He was the
Director of the Regional Perinatal Program at New England Medical Center in
1992. Although Dr. Cetrulo is not licensed in New York State and has not
practiced in the Syracuse area, the Court finds him a competent expert and
knowledgeable of the standard of care in this locality as an educator of doctors
practicing in this area in the speciality of Obstetrics and Gynecology and
Fellows in Maternal Fetal Medicine.
Dr. Cetrulo testified that the risks with a pregnancy with a bicornuate uterus
are IUGR, a placental abruption because of blood flow problems for the uterus
and placenta, habitual abortions, and pre-term labor because the uterus gets to
a point and then can’t grow anymore because of its abnormality. He said
that IUGR means that the baby has not received enough nutrients to grow and
develop normally. If there are blood flow problems through the placenta, such
as placental insufficiency, then the nutritive function of the placenta is not
working optimally. According to Dr. Cetrulo, it was generally accepted in 1992
and 1993 that a bicornuate uterus places the woman at risk of having a pregnancy
complicated by IUGR. This is often caused by a placenta that is attached or
implanted partially on the septum, where the blood supply isn’t as good as
it would be along a normal uterine wall. So, with a bicornuate uterus with poor
placental attachment, there is a chronically reduced ability of the placenta to
supply adequate nutrients and oxygen to the baby. This opinion was shared by
all of the doctors.
Dr. Cetrulo went on to testify that in a woman with a bicornuate uterus, the
baby is always at risk of IUGR regardless of where the placental attachment is
because, in his opinion, you never really know where the placental attachment is
in reference to the incompletely perfused septum. A fetus with IUGR is at a 10
percent higher risk of death compared to a typical nongrowth restricted fetus.
In 1992, it was also generally recognized and Dr. Aubry agreed, that patients
with a bicornuate uterus were at increased risk of a placental abruption,
according to Dr. Cetrulo. Both Drs. Aubry and Cetrulo testified that with a
diagnosis of IUGR, there is a presumption of placental insufficiency.
Dr. Cetrulo then reviewed some of Mrs. DuPont’s individual prenatal
appointments and testing with Dr. Aubry at the Prenatal Center. It was Dr.
Cetrulo’s opinion, consistent with the other medical professionals, that
the ultrasound conducted on July 28, 1992, showed the fetus to be appropriately
sized for the gestational age. Thereafter, on November 19, a 3 week lag in
growth is found, which, based upon the prior ultrasound depicting appropriate
gestational growth, suggests, according to Dr. Cetrulo, early IUGR. Almost 4
weeks later, on December 17, the ultrasound reveals less than 4 weeks worth of
growth, with now a 4-week discrepancy between gestational age and ultrasound
At the December 21 office visit, Dr. Cetrulo agreed with Dr. Aubry’s
office note that the sonogram of December 17 showed IUGR, probably secondary to
uterine anomaly. Dr. Cetrulo felt Dr. Aubry’s note of December 21,
reflected the standard of care when you have a diagnosis of placental
insufficiency and a 36-week intrauterine growth restricted fetus: do twice
weekly nonstress tests and induce at term if labor doesn’t begin within
10-14 days. Dr. Cetrulo testified that this is because after 38 weeks, the
risks to the baby in utero exceed the risks of delivery. Dr. Cetrulo described
the uterus, at that point, as a hostile environment where the baby isn’t
getting enough nutrients, isn’t growing, and may not be getting enough
oxygen. In the setting of a bicornuate uterus with the increased risks of a
placental abruption, among other devastating risks, delivery at 38 weeks
outweighs any risks of induction.
It is Dr. Aubry’s care of Mrs. DuPont on December 28, 1992, until the
date of delivery that Dr. Cetrulo testifies falls below the standard of care.
Dr. Cetrulo notes that when, on December 28, Mrs. DuPont reports decreased fetal
movement coupled with all of the other diagnosed concerns, the minimum standard
of care required a nonstress test and a biophysical profile be performed. A
biophysical profile is an ultrasound examination which measures the amount of
amniotic fluid, fetal movement, and fetal breathing movement. Dr. Cetrulo
testified that none of those tests were performed that day, which, according to
Dr. Cetrulo, fell below the standard of care. No biophysical profile was
performed at any time during Mrs. DuPont’s pregnancy. However, a
performed that day which was reactive and, on
cross-examination, Dr. Cetrulo agreed that this met the standard of
All of the medical professionals
agreed that in light of a complaint of decreased fetal movement, the standard of
care required a nonstress test which was performed that day.
Dr. Cetrulo noted that only one nonstress test was performed within the 16 days
preceding January 14, which, given this high risk pregnancy, he felt fell below
the standard of care and deviated from the plan of care Dr. Aubry noted for his
office visits of December 21 and 24. Dr. Cetrulo felt that the January 7, 1993,
office visit should not have even been scheduled; since it was his opinion, to a
reasonable degree of medical certainty, that Mrs. DuPont’s baby should
have been delivered at 38 weeks gestation given the diagnosis of IUGR, placental
insufficiency, and bicornuate uterus.
Dr. Cetrulo testified that the S/D ratio obtained by the four CWD studies show
an elevated reading in the left uterine artery which he opined is significant
because it shows an abnormal blood flow through one of the mother’s
uterine arteries, arteries which supply the oxygen and nutrients to the placenta
and then to the baby through the umbilical artery. Dr Cetrulo testified that it
is not known what role each artery plays in supplying the uterus with blood as
both arteries are involved, and there is no way to quantify whether one artery
is supplying more blood to the uterus; therefore, an elevated reading in either
artery is still a parameter that warrants consideration. Dr. Cetrulo did agree
that the critical reading for determining perfusion to the fetus is the
umbilical artery. 3
On cross-examination, Dr. Cetrulo acknowledged that a nonstress test was the
best way to assess fetal health, and that on December 17, 21, 24, and 28, the
nonstress tests performed indicated good fetal health. He also agreed that from
December 28, 1992, through January 7, 1993, there was no indication of anything
that compromised the fetus, and the nonstress test performed on January 7,
indicated good fetal health. However, due to the high risks involved with this
pregnancy, he still felt Dr. Aubry failed to meet the standard of care by not
delivering Claimant at 38 weeks. Dr. Cetrulo also did agree, based upon the
measurements of the biparietal diameter, femur length, abdominal circumference,
head circumference, and estimated fetal weight from the ultrasounds between 18.3
weeks and 35.6 weeks that there was continuous growth. However, as clarified
on redirect, there was a growth lag that developed during the third trimester of
Mrs. DuPont’s pregnancy. This, according to Dr. Cetrulo, is inconsistent
with defendant’s position that this was a constitutionally small fetus, or
a growth lag caused by a chromosome abnormality or an infection. If that were
the case, the discrepancy with the fetus’s growth to gestational age would
have been evident from the first sonogram.
Since there was no evidence on January 7, 1993, that the fetus had grown during
the prior four weeks, in light of the stagnant fundal height measurements, Dr.
Cetrulo felt, at a minimum, another ultrasound should have been performed on
January 7. Dr. Cetrulo also testified on redirect that, even in light of
reactive nonstress tests, given the bicornuate uterus, IUGR, and risk of
placental insufficiency, at 38 weeks it was reasonable to deliver this baby
rather than to wait for something to go wrong.
It was undisputed that a term pregnancy is considered 38 to 41 weeks of
gestation. A term pregnancy means the baby is delivered at a time when most
babies can be born and not suffer any consequences. The most noted risk to a
baby delivered at 38 weeks is lung immaturity. Dr. Cetrulo could not testify,
to a reasonable degree of medical certainty, that at the time this fetus reached
38 weeks, her lungs had reached maturity. There were, however, tests that could
be performed to assess for lung maturity, specifically, an amniocentesis to test
for a lecithin sphingomyelin ratio (LS ratio). If the ratio is above a 2, that
indicates fetal pulmonary maturity. Dr. Cetrulo testified that at 34 weeks
gestation, approximately 50 percent of fetuses have a mature LS ratio, and at 38
weeks, fetal lung maturity can be presumed. Dr. Aubry disputed this,
testifying that only 70 percent of fetuses at 38 weeks would have a mature LS
ratio. All of the medical professionals agreed that fetuses with IUGR tend to
develop lung maturity at a faster pace than non-IUGR fetuses. Although an
amniocentesis in the third trimester has a risk of membrane rupture, onset of
labor, and fetal distress, the complication rate is less than one percent while
the risk of placental abruption can be as high as four percent. Lung maturity,
according to Dr. Cetrulo, was not a contraindication for delivery of Mrs. DuPont
at 38 weeks given the other concerns with her pregnancy.
Defendant’s expert witness, Dr. Eva K. Pressman, is Board Certified in
Obstetrics and Gynecology and Maternal Fetal Medicine. She was certified in
both specialties after the infant claimant’s birth. She was in her
first year of a Maternal Fetal Medicine Fellowship at the time of Mrs.
DuPont’s pregnancy and the infant claimant’s birth. She was Board
Certified in Obstetrics and Gynecology in 1995 and Maternal Fetal Medicine in
1997. She is currently a practicing doctor at the University of Rochester and
holds a faculty position at the medical school. She is a member of the Regional
Perinatal Center. She has published many abstracts, papers, and chapters, some
of which deal with evaluation of IUGR. She testified that she has treated
hundreds of pregnancies with IUGR diagnosis, and only six or eight pregnancies
with bicornuate uteri. The Court found her qualified as an expert; however, her
expertise as to the standard of care at the time of Mrs. DuPont’s
pregnancy in 1992 and early 1993, was given less weight because she was not
certified in Obstetrics and Gynecology at that time. The number of high risk
pregnancies that were under her care at that time was not established, and she
was still in the first year of her Fellowship in Maternal Fetal Medicine.
Dr. Pressman identified only three risks of a bicornuate uterus: miscarriage,
cervical incompetence, and pre-term labor. Miscarriage, she defined as loss of
a pregnancy before the fetus is 24 weeks. Cervical incompetence is a cervix
that dilates without uterine contractions. Pre-term delivery, consistent with
the other medical professionals, is delivery prior to 37 weeks gestation. Dr.
Pressman, like the other medical professionals, opined that the risk for a
placental abruption, a risk in any pregnancy, is a described risk with
bicornuate uteruses mostly in relation to the placenta being implanted on the
uterine septum. In Mrs. DuPont’s case, where the placenta was attached to
the posterior wall of the uterus, the risk for placental abruption, in Dr.
Pressman’s opinion, approximates a normal uterus. Dr. Pressman, on
cross-examination, indicated that the risk of a placental abruption in anyone
with a bicornuate uterus is three to four percent; yet, the incidence in a
pregnancy with a normal uterus is about one percent. Yet, Dr. Aubry
acknowledged that regardless of where the placenta is attached to the uterus,
there is an increased risk of a placental abruption to a patient with a
bicornuate uterus. Dr. Pressman testified there was no data to support or
refute that position. Undisputedly, a placental abruption poses a fatal risk
for the baby and, potentially the mother, and is a significant complication.
There are no tests, according to Dr. Pressman, which can predict a placental
abruption. Based upon the results from the tests that were conducted and the
evaluation of Mrs. DuPont during her office visits on December 21, 24, 28, and
January 7, 1993, Dr. Pressman testified there was nothing that would suggest a
placental abruption was imminent. Dr. Pressman, like Dr. Aubry, testified that
symmetrical IUGR is due to an early effect upon the fetus such as chromosomal
abnormalities, a viral infection, or genetics, and usually not placental
insufficiency. Asymmetric growth restriction is usually seen when the placenta
is not properly functioning, usually due to placental insufficiency. Dr.
Pressman testified that asymmetric IUGR can become symmetric later in pregnancy
and acknowledged that the IUGR, in this case, occurred during the second half of
the pregnancy, as clearly evidenced by the December 17 ultrasound. She agreed,
on cross-examination, that placental insufficiency will sometimes cause IUGR to
emerge in the third trimester. She also indicated that at birth 10 percent of
all fetuses are in less than the 10th percentile for weight and most are normal.
Interestingly, and in contrast to all the other doctors, Dr. Pressman testified
that in the first half of pregnancy all fetuses grow the same, whether the fetus
is genetically meant to be five pounds at birth or ten pounds at birth.
To test for placental insufficiency, Dr. Pressman used nonstress tests, CWD,
and checks for amniotic fluid levels, as did Dr. Aubry. She reviewed the tests
performed upon Mrs. DuPont and felt that the nonstress tests failed to show
placental insufficiency. She also testified that use of the uterine artery
dopplers were controversial and experimental for use with bicornuate uteri.
She explained that the uterine arteries provide blood to the uterus, which is
then transferred to smaller blood vessels that form a vascular net. During
pregnancy, the uterine arteries decrease their resistence to allow an increased
blood flow to the developing fetus; in a bicornuate uterus, the blood flow
increases more on the side of the uterus which contains the fetus. There is
very little data on what happens with the uterine artery on the other side of
the uterus. Dr. Pressman, as did Drs. Aubry and Silverman, testified that the
elevated left uterine artery readings were not related to fetal health or
alarming since the key reading is the measure of flow through the umbilical
artery. Looking at the umbilical artery readings for Mrs. DuPont, the results
for each test were normal and did not indicate placental insufficiency. In
fact, Dr. Pressman, like Dr. Silverman, testified that a normal umbilical artery
S/D ratio from a Doppler study rules out placental insufficiency at that time.
It does not rule out the risk of future placental insufficiency, only that it
has not yet occurred. Similarly, she found the level of amniotic fluid normal,
not indicative of placental insufficiency.
Dr. Pressman, in divergence to Dr. Aubry’s notation, “IUGR probably
secondary to a uterine anomaly” from the office visit of December 17,
1992, opined that since the placenta was posteriorly attached to the uterine
wall, not the septum, and without any other signs of placental insufficiency,
there was no direct correlation between Mrs. DuPont’s bicornuate uterus
and the size of the fetus. She did, however, agree that if a fetus is
growth-restricted secondary to a bicornuate uterus, it is because of placental
insufficiency. She also agreed that Dr. Aubry’s note diagnosing IUGR,
secondary to uterine anomaly, reflected that Dr. Aubry suspected placental
insufficiency. Since it is Dr. Aubry’s knowledge at the time of treatment
that must be considered, Dr. Pressman’s hypothesis regarding this
fetus’s IUGR at the time of trial is not determinative. Any problem with
the blood flow to the fetus, in Dr. Pressman’s opinion, would involve
placental insufficiency. Even if the uterine anomaly resulted in a problem with
the uterine blood flow, Dr. Pressman testified that decreased perfusion to the
uterus also reflects decreased blood flow to the placenta.
It was Dr. Pressman’s opinion that there wasn’t anything from Mrs.
DuPont’s office visits on December 21, 24, or 28, that would have
indicated the baby should be delivered at 38 weeks. The standard of care for
the complaint of decreased fetal movement on December 28, required that a
nonstress test be performed, which was done and was reactive. Nothing on
January 7, 1993, indicated that Mrs. DuPont’s pregnancy should be
delivered either. Dr. Pressman testified that with no immediate danger to the
mother or fetus, and in light of an unfavorable cervix, induction should be
avoided. It was her opinion that if test results are good, the uterus is the
optimal place for the fetus even at 38 or 39 weeks. She opined that, under
these circumstances, it was within the standard of care to wait and allow labor
to begin spontaneously. Although there were cervical ripening agents available
to ready the cervix for delivery, there was only one, Prepidil, that was FDA
approved at that time; yet, Dr. Pressman agreed that studies had shown
prostaglandin gel was safe and effective. Alternatively, Dr. Aubry could have
also used a catheter to ripen the cervix. Dr. Pressman also testified,
consistent with Dr. Cetrulo and in contrast to Dr. Aubry, that at 38 weeks 95
percent of fetuses have a mature L/S ratio evidencing lung maturity, and at 39
weeks, no testing is necessary because lung maturity is presumed.
Dr. Pressman found no deviation from the standard of care when Dr. Aubry
changed his plan of care from December 21, discontinuing the twice weekly
nonstress tests and not conducting a CWD study on December 28. The standard of
care, according to Dr. Pressman, does not require twice weekly nonstress tests
when there is an unexplained elevated MSAFP. The treatment is close
surveillance and serial ultrasounds every three to four weeks. Dr. Pressman
acknowledged, on cross-examination, that, generally, obstetrics and maternal
fetal medicine textbooks, in the late 1980s and early 1990's, recommended serial
sonograms every two to three weeks for fetuses with IUGR.
Dr. Pressman felt there was no deviation, based upon Dr. Aubry’s
deposition testimony, that he did not take into account where the placenta had
implanted in the uterus; given the posterior implantation of the placenta, the
implantation was not significant. Dr. Pressman was of the opinion that this
fetus’s growth restriction was not the result of placental insufficiency
or the bicornuate uterus; rather, it was because this fetus was genetically
disposed to be small.
In a medical malpractice case, it is the claimant’s burden to show that
the medical professionals involved either did not possess the requisite
knowledge and skill ordinarily possessed by practitioners in the field, or
neglected to use reasonable care in the application of the requisite knowledge
and skill, or failed to exercise their best judgment (Pike v Honsinger,
155 NY 201; Hale v State of New York, 53 AD2d 1025, lv denied
40 NY2d 804). For liability to be imposed, there must be a showing that the
medical provider’s treatment decision was “something less than a
professional medical determination.” (Darren v Safier, 207 AD2d
473, 474; Ibguy v State of New York, 261 AD2d 510). A physician’s
duty is to provide the level of care acceptable in the professional community,
he is not required to “achieve success in every case and cannot be held
liable for mere errors of professional judgment” where a choice is made
between medically acceptable alternatives or diagnoses (Schrempf v State of
New York, 66 NY2d 289, 295; Oelsner v State of New York, 66 NY2d 636;
Nestorowich v Ricotta, 97 NY2d 393, 399).
The Court has struggled with the issue of liability, as it is clear that the
practice of medicine involves ongoing decision making which factors in the
patient’s historical circumstances, test results, changes in condition,
and the experience of the doctor involved. It is not an exact science, and
there is, in any circumstance, a range of acceptable practice. Mrs. DuPont came
under Dr. Aubry’s care which he termed a very high risk pregnancy because
of Mrs. DuPont’s prior pregnancy and miscarriage history and her physical
anomaly of a bicornuate uterus.
Unfortunately for Mrs DuPont, her complications furthered as the pregnancy
developed, including two unexplained elevated MSAFP test results, an increasing
lag in fetal growth, and ultimately a diagnosis of IUGR on December 21. Dr.
Aubry was an experienced, knowledgeable doctor having cared for many pregnancies
complicated by a bicornuate uterus, and there is no established issue with the
medical care he provided to Mrs. DuPont until she reached 38 weeks gestation.
At that point, the issue turns critically to whether the standard of care
required the delivery of Mrs. DuPont’s fetus at that time, or in any
event, before January 14, 1993. Yet, the Court has focused on those critical
days before that date, as Dr. Aubry had only the facts known at that time and
was left, without the ability of prescience, to evaluate the condition of Mrs.
DuPont and Kayla with his expertise within the accepted level of care.
When focusing on those last days, certain factors are clear and undisputed.
This woman had a bicornuate uterus. With any pregnancy with a bicornuate
uterus, even one not attached to the septum, there is an increased risk of a
placental abruption. Mrs. DuPont had unexplained, significantly elevated MSAFP
test results twice. An unexplained elevated MSAFP test result increases the
risk for a placental abruption. Placental abruption places both the fetus and
the mother at risk of death. Yet it is clear from his deposition testimony,
that it never occurred to Dr. Aubry that Mrs. DuPont’s bicornuate uterus
placed her and her pregnancy at risk of placental abruption and the risk of
placental abruption played no involvement in Dr. Aubry’s decision making
regarding the care of Mrs. DuPont. Yet, placental abruption and the risk of
fetal death are factors Dr. Aubry acknowledged the standard of care required be
The fetus was diagnosed with IUGR, having a significant growth lag measuring
below the 10th percentile for her gestational age. A diagnosis of IUGR
increases the risk of fetal demise. Dr. Aubry attributed the IUGR to the
uterine anomaly which, by all accounts, is then usually the result of placental
insufficiency. Dr. Aubry never ruled out placental insufficiency. Although he
discounted placental insufficiency as the cause of the IUGR, he still attributed
the cause to a uterine blood flow issue, which Dr. Pressman testified would
equate to placental insufficiency.
Dr. Aubry’s own plan of care, as of December 21, reflected a
consideration to induce labor at 38 weeks, which was established as a term
pregnancy. Mrs. DuPont’s condition, as of December 21, showed, according
to Dr. Aubry, “some indicators of some concern” which led him to the
plan for twice weekly nonstress tests and the thought process to induce labor.
Those indicators of concern were the diagnosis of IUGR, the need to watch for
hypoxic effects on the fetus, and concern about placental insufficiency. As of
December 21, Dr. Aubry had two nonstress tests, the four sonogram reports, and
three Doppler studies. When Dr. Aubry changed his plan of care for Mrs. DuPont
on December 28, the only additional information he had, at that time, were the
reactive nonstress tests from December 24 and December 28. In explaining his
change of plan, Dr. Aubry expressed his reliance on the reactive nonstress tests
and good flow studies to support his position that the risks associated with
this pregnancy were the same or less than on December 21. It is clear from Dr.
Aubry’s testimony that he did not factor in the increased risk for a
placental abruption because of the bicornuate uterus or the elevated MSAFP test
results. Nor was there any evidence of fetal growth during this period.
Dr. Aubry, who clearly beholds himself an exceptional practitioner, stated
twice, unequivocally, that with documented fetal lung maturity and a diagnosis
of IUGR, the standard of care requires delivery at 38 weeks. He then held up
the risks of testing for lung maturity as a shield to any negligent decision of
when to deliver Mrs. DuPont’s baby. Yet, looking behind the shield, it
was undisputed that the risks of amniocentesis to test for lung maturity were
less than one percent, and the test was described, by all who testified, as a
very “low risk procedure” at that point in the pregnancy. In fact,
the risks for the amniocentesis were less than the risk for a placental
abruption in a woman with a bicornuate uterus with a pregnancy not attached to
the septum, even before including the increased risk for a placental abruption
related to the unexplained MSAFP test results. Dr. Cetrulo testified that there
is no contraindication to delivery at 38 weeks given the circumstances presented
here. Even defendant’s expert, Dr. Pressman, testified that at 39 weeks
fetal lung maturity could be presumed, and no testing was even required. All
the medical providers agreed that if the testing had been done at 38 or 39
weeks, it would have more likely than not shown fetal lung maturity.
Undisputedly, at 38 weeks, the testing, nonstress tests, and CWD’s showed
a healthy, well-oxygenated fetus, but without any evidence, at least as of
January 7, that the fetus was growing in utero. The last sonogram, from
December 17, revealed an increasing growth lag and that the fundal height
measurements were stagnant, except for a 2-centimeter increase on December 28,
which was lost by January 7. At his deposition, Dr. Aubry testified that on
January 7, he was concerned the fetus’s growth restriction had continued
to worsen and ordered a sonogram for Mrs. DuPont’s next appointment which
she never made.
Clearly, the cervix was not ripe for delivery but, by all accounts, ripening
agents and methods were available, and the risks of inducing delivery, which
undoubtedly exist, would have evolved in the hospital, where emergency care, as
evidenced by the exceptional treatment provided to Mrs. DuPont on the morning of
January 14, could have been provided. Moreover,
the Court was moved by Dr. Aubry’s testimony, that within a couple days of
Mrs. DuPont’s next scheduled visit (January 14) he would “almost
certainly [be] inducing her within days,” despite those same risks of
induction he touted as precluding an earlier induction. The difference in
waiting that additional week, given his intent to thereafter induce, was not
compelling for the Court in light of the other circumstances with this
pregnancy. Moreover, the standard of care, to which Dr. Aubry testified,
required delivery of an IUGR fetus at 38 weeks with documented lung maturity.
He did not condition his testimony upon a ripe cervix. It is because of these
factors that the Court finds Dr. Aubry’s decision to continue the
pregnancy of Mrs. DuPont beyond 38 weeks, and in any event beyond 39 weeks, was
outside of the standard of care for a diagnosed IUGR fetus as he described. His
failure to factor in the increased risks of a placental abruption for Mrs.
DuPont’s pregnancy despite as he acknowledged that the standard of care
required this consideration, reflects a failure to exercise reasonable care in
the application of his expertise, and not just a mere error in judgment. It
appears that Dr. Aubry failed to heed all of the risks apparent for this
pregnancy. He readily acknowledged that most maternal fetal medicine doctors
dealing with an IUGR fetus, choose to deliver their patients as soon as
pulmonary maturity is assured by testing, and it would have been within the
standard of care to deliver this pregnancy even as early as December 21, 1992.
He indicated, however, that he didn’t feel that delivery would have been
best. Unfortunately, his judgment was based upon his failure to heed all of the
risks known for Mrs. Dupont’s complicated pregnancy; and more importantly,
for purposes of this case, below what the standard of care required based upon
all of the information available to him.
Accordingly, the Court finds the defendant, based upon Dr. Aubry’s breach
of the standard of care, 100% liable for the injuries suffered by the infant
claimant, Kayla DuPont, as a result of the placental abruption that occurred on
January 14, 1993.
Kayla DuPont, the infant claimant, was born at 8:52 a.m. on January 14, 1993,
growth-restricted, weighing 2,485 grams, which is below the 10th percentile for
weight for her gestational age based upon a sea level growth chart. At the time
of her birth, her Apgar score at one minute was 0, at 5 minutes her Apgar was 1,
and at 10 minutes it was 4.3
scores are very low and associated with neurological problems. A more objective
measure of the condition of the fetus is ph lab testing of the umbilical cord
artery which provides clearer evidence of the fetal hypoxia and asphyxia. Any
result below 7 is considered abnormal, and the result in this case was 6.64.
This result indicates very abnormal blood gases or poor oxygenation. The normal
range is 7.15 to 7.35. This intrapartum asphyxia means a lack of oxygen and a
build up of carbon dioxide causing acidosis and asphyxia. The result of the
bradycardia and lack of oxygen caused Kayla to suffer cerebral palsy. The lack
of oxygen damages the brain, which results in motor deficits that appear as
spastic quadriplegic cerebral palsy.
At the time of her birth, Kayla evidenced encephalopathy, which meant the
baby’s brain was not responding in a normal way in the immediate newborn
period, because of a coma, seizures, lethargy or jitteriness. Additionally,
Kayla showed signs that oxygen was not getting to the vital organs, so there was
renal failure, respiratory problems, blood chemistry problems. Based upon the
medical records, Dr. Cetrulo testified, to a reasonable degree of medical
certainty, that the cerebral palsy from which Kayla suffers was a direct result
of the placental abruption that led to the intrapartum asphyxia. There was no
dispute as to the causal relationship.
Dr. Nancy Havernick, Kayla’s pediatric neurologist, testified. Dr.
Havernick has been the infant claimant’s neurologist since she was 8 days
old in the Crouse Neonatal Intensive Care Unit (NICU). Dr. Havernick was
originally consulted for a second opinion, and her findings from her first
examination and review of the medical records of the infant claimant reflect
that she was born in full arrest, without any detectable movement, heartbeat, or
breathing. She was resuscitated in the delivery room. She had seizure activity
during the first few days of life which was difficult to control, requiring the
administration of Phenobarbital and Dilantin in high doses. Seizure control
had improved by the time Dr. Havernick saw her as did her muscle tone. The EEG
showed “burst suppression
of 40-50 second intervals of
near electrical silence, which means she had very abnormal brain activity at
that time: between silence - no brain waves at all - to a pattern consistent
with electrical seizure activity.
The physical examination revealed that the infant claimant’s head had a
circumference of 33 centimeters, had a bulging, or full “soft spot,”
which is normally flat, her right eye was too swollen to examine, but her left
eye responded to light but not in a normal “fixing and
way. She had a
spontaneous grimace that was symmetrical. The infant claimant was intubated at
the time, so some of the information was obtained from nurses and observation.
She did have a gag reflex, did spontaneously yawn, and she did tongue thrust.
Her tone was abnormally increased for all four limbs, and she withdrew
selectively to noxious stimulation. Based upon the initial examination, Dr.
Havernick assessed that the infant claimant had suffered significant birth
asphyxia, the EEG indicated a poor neurological prognosis, which could be
secondary to Phenobarbital levels, which sometimes cause a burst/suppression
pattern in the EEG. Prognosis was guarded at best, with a plan to reduce
Phenobarbital levels and repeat EEG’s within the next week.
Dr. Havernick saw the infant claimant again, almost a month later, in the
hospital and then at four months of age in her office. The May 7, 1993,
examination revealed that her development was about two months behind. Kayla
then weighed nine pounds and her head circumference was 35.5 centimeters.
Examination of the cranial nerves revealed that she could track a red object
horizontally and vertically, and could be fed with a bottle with chin support.
Her pupils were sluggish but reactive. Deep tendon reflexes were symmetrically
increased, her toes were up, and her muscle tone had symmetrically increased.
She could bear weight on outstretched legs. She did not slip through on
claimant’s incurvation response was bilaterally
Her head control was fair in
a supportive sitting position. She reacted normally to tactile stimulation.
She suffered from microcephalia which means the head circumference is smaller
than expected for her age, and she is at risk of spastic quadriparesis. The
microcephalia is caused by the failure of the brain to grow, and although the
infant claimant looked like a normally formed baby in a newborn picture, her
head is noticeably smaller than her body in a more recent photo. She was also
at risk of infantile spasms given her continued significantly abnormal EEG.
Spastic quadriparesis is stiff or spastic paralysis of all four limbs, which is
the type of cerebral palsy she suffers. The infant claimant did not develop the
Dr. Havernick sees the infant claimant only twice per year, and her last
examination, prior to trial, was on August 8, 2006. At that visit, the infant
claimant was 13½ years old and left- handed. Blood tests were ordered to
determine whether botox treatments could be used to help control spasticity,
because there was some concern of the infant claimant’s blood and its
ability to clot. Dr. Havernick noted that progress was being made with
communication aids. She had suffered one bout of pneumonia since her previous
appointment, which required a brief hospitalization. Seizure control was good.
A review of her medication revealed that she receives Phenobarbital or Depakene
elixir and Baclofen to treat the spasticity. She also receives Zanaflex, which
is also an antispasticity agent. She is fed PediaSure Plus through a G-tube (a
gastrostomy tube). She also gets Lactulose, Xopenex, Singulair, Zyrtec, and
Pulmozyme as needed for her respiratory care. The diagnosis at that last visit
was cerebral palsy and seizures, which are the result of the birth asphyxia
described as hypoxic ischemic encephalopathy from birth. The infant
claimant’s prognosis, according to Dr. Havernick, is that she can be kept
comfortable, but she is unlikely to make any progress in her ability to walk,
sit, stand, or ability to perform any of her daily care independently. The
injury to her brain is static and will not change. It is not progressive, and
the behavioral and physical manifestations of her brain injury are also static;
however, as she grows, additional problems are possible as it becomes more
difficult to keep her moving orthopedically. She suffers from
of all four limbs, which has
been somewhat minimized by physical therapy. She will never be able to walk or
sit independently; she will never be able to speak, and she will always need a
G-tube to receive nourishment and medicine. She is likely to have future
hospitalizations. She will never be able to work.
2. Life Care Plans - medical and other needs
Claimants presented the testimony of Terri Sue Patterson who prepared a Life
Ms. Patterson is a
Registered Nurse with a Master’s Degree in Nursing, certified in
Rehabilitation Nursing and Nursing Administration, and is a Fellow with the
International Academy of Life Care
She has been involved in
rehabilitative nursing for approximately 23 years and has been formulating life
care plans for roughly the same time frame. She is not licensed in New York
The Life Care Plan she prepared chronicles the extensive medical treatment and
care, physical therapy, occupational therapy, and education the infant claimant
has received during her life through early 2006. Based upon that information
and Ms. Patterson’s home visit and interviews with the parents, Ms.
Patterson assessed the needs of the infant claimant and developed alternative
plans for Kayla from ages 13-21 and then from 21 through life expectancy for
home care with supportive services, or placement in a skilled nursing facility.
The first plan reflects pediatric home care with supportive services for the
infant claimant from age 13-21. The plan sets forth the frequency, duration,
and costs for meeting all of Kayla’s ongoing care and needs until she
reaches adulthood. Ms. Patterson utilized Kayla’s medical records and
history as the basis for determining what ongoing medical care she is likely to
need now and in the future. She assessed an annual cost for Kayla’s
visits with her various doctors, such as Dr. Toro, the pediatrician; Dr.
Havernick, neurology; Dr. Swenden, pulmonology; Dr. Albanese, Orthopedics; Dr.
Turk, Physiatry; and she also included speciality consults for dental,
gastroenterology, ophthalmology, ENT, and surgery. Additional costs were
calculated for what Ms. Patterson labeled, “Therapeutic Modalities”
including physical therapy, occupational therapy, and speech therapy twice per
week, allotting additional frequency and costs for periodic physical therapy and
occupational therapy treatment increases after surgery or injury at 12 times per
year, periodically until she reaches age 21. She included assistive technology
consults to evaluate all of Kayla’s technological needs once per week.
Included also are Neuropsychology/Neurobehavioral evaluations twice until age
21, and family education. Also included is ongoing psychological counseling for
the family, 24 times per year at total cost of $10,080. Nutritional
consultations are also included.
Ms. Patterson also identified a number of supplies and equipment needed for
Kayla to assist with her mobility, communication, self-care, medications,
bladder and bowel needs, nutrition, and respiratory needs. These categories
include such items as a “Gorilla” car seat, postural wheelchair,
custom orthotic-MAFOs/splints-braces, orthoplasts for head support, her pointer,
support and braces for her hands, mat table for use with exercises, positioning
device/tumbleforms, for when she is not in her wheelchair, Transfer
Devices-Handi-move system which is a lift from the ceiling that can carry her
from room-to-room, Extended to BR/Therapy Area, Activity/therapy chair that
will be mobile and provide her the needed support, Prone Stander, to allow her
to have some weight bearing for her joints and legs, and Positioning Aids to
help with head and trunk support; communication assisted devices, switch
activated toys and educational aids, augmentative communication system/visual
aids, computer/communication system, a shower chair/stretcher, hand held shower,
electric multiposition bed, a specialized air mattress, prescriptions for
Zantac, Enulose, Depakene, Baclofen, Zanaflex, Singulair, Xopenex, Sodium
Fluoride, periodic antibiotics, Pulmozyme, Atrovent, diapers and creams,
PediaSure formula, PEG replacement tubes, feeding supply kits and peg tube
supplies, a pump purchase and an IV pole purchase; a nebulizer machine and
supplies. Some of these items are one-time costs, whereas others are annual or
otherwise repeated costs.
Ms. Patterson also included laboratory costs and diagnostic tests such as
X-rays because Kayla is prone to fractures, complete blood counts to monitor
side effects, chemistries to measure medication levels, neurodiagnostics - such
as swallowing studies, MRIs and CT scans to follow up on her brain injury, and
Another category is Medical/Rehabilitational Management, which includes future
orthopedic surgeries, prolonged illnesses, infections, seizure management,
gastrointestinal, and dental procedure costs, spasticity management botox
injections, Baclofen Pump, and emergency room costs. Every time that dental
work must be performed, Kayla requires general anesthesia. Her teeth are coming
in at various angles and her gums are overgrown. Emergency room costs are
associated with the increased risk for infections, the fevers, and seizures from
which she has suffered in the past.
The life care plan provides for 24-hour care utilizing a home-care nursing
agency to provide a registered nurse (RN) for at least one or two of the daily
shifts and a licensed practical nurse (LPN) at other times. Ms. Patterson
opined that a RN is necessary to perform all of the care that Kayla requires and
to allow for the implementation of a doctor’s orders and discussions of
medical assessment. She suggested use of an agency, instead of the family
independently hiring nurses, for convenience and continuity of care. The cost
allotted for this level of care was $394,200 per year. The Court finds that by
using a home-care nursing agency, an RN case manager is unnecessary.
Also included in the first alternative are modifications, which Ms. Patterson
opines, are necessary to the DuPont family residence. Ms. Patterson allots
$150,000 for one-time costs to provide two means of egress from the home, modify
the bathroom to permit a stretcher to be accommodated and still have room to
move around, doorways must be widened, some areas may require reinforced
flooring, removal of carpeting, and reinforcement of the ceiling joists for the
lift system. There is also a need for a protective covering for the van. A
repeated cost, every 5 years, of $50,000 is also provided for an accessible van,
with $1,500 for annual maintenance, and $200 every 5 years for portable
Ms. Patterson also allotted $480 per year for security with a Lifeline System.
An educational program and summer camp with transportation is also included.
Ms. Patterson included $35,000 per year for an educational program in the event
the school district cannot meet Kayla’s educational special needs. She
allocated $3,000 per year for a summer camp program.
Alternative Three reflects the frequency, duration, and costs for home care
with supportive services for Kayla from age 21 through life expectancy, which
the parties agree is age 30. This plan presents many of the same components for
Kayla’s ongoing care and needs as alternative one, such as ongoing medical
care for internal medicine, and speciality consultations for Physiatry,
Neurology, Pulmonology, Psychiatry, Gastroenterology, Ophthalmology, ENT, and
surgery. The same therapeutic modalities are included with decreased frequency.
Similar, but fewer, supplies are included to meet Kayla’s adult needs. No
assisted technology is provided for communication. Medications are all the
same, with the addition of over-the-counter products for bowel, bladder and
pain. Self-care and nutritional needs are similar. Kayla’s respiratory
needs will continue to require a nebulizer. For medical/rehabilitation
management, no further surgeries are anticipated during this time frame, and
fewer injuries, infections, and emergency room visits are planned. The same
nursing care is provided, home modifications, transportation, and security. No
educational program is provided. The other two alternatives Ms. Patterson
compiled address the frequency, duration, and costs associated with a pediatric
skilled nursing facility for the infant claimant from age 13-21, and an adult
skilled nursing placement for age 21 through life expectancy. The skilled
nursing facility for Kayla’s pediatric care would cost $255,500 per year.
Additional costs would be incurred for her medical care by the same providers
and with the same frequency and cost as described in alternative one. The
therapeutic modalities, physical therapy, occupational therapy, speech therapy,
and nutritional consultation costs are all included in the daily cost for the
facility. Ms. Patterson included the additional costs for periodic treatment
increases for those services, as well as the costs for assistive technology
consultations, neuropsychological, and neurobehavioral testing, and
psychological counseling for the family. Necessary supplies included the same
items that were contained in the first plan, excluding only the
“Gorilla” car seat, mat tables, positioning devices, and transfer
devices. The communication/assisted technology items were the same as for
alternative one, as were the medications and the need for diapers. The
nutritional items were also the same, minus the pump purchase and the IV pole.
Additionally, for Kayla’s respiratory needs, only the nebulizer would have
to be purchased, not the supplies. The costs for laboratory studies and
diagnostic tests, and medical and rehabilitation management were the same as set
forth in alternative one. Obviously, nursing services are included in the cost
of the facility, and fewer home modifications would be necessary to accommodate
Kayla’s needs - mostly ramping and making the bedroom and bathroom
accessible. An accessible van for transport would also be necessary; however,
the cost set forth does not reflect the purchase cost but only a monthly sum.
Alternative four represents the costs for placement at an adult care facility
for Kayla from age 21 through to life expectancy. The annual cost at a local
facility is $109,550. Additional costs are anticipated for her medical care and
speciality consults, annual evaluations, and periodic treatment for physical
therapy, occupational therapy, treatment for speech therapy, psychological
counseling for the family, and nutritional consultations. Supplies and
equipment include a wheelchair, gel cushion, orthotics, UE splints/orthoplasts
and positioning aids, similar to alternative two. The nutritional needs and
medications are the same as for the pediatric facility placement. Laboratory
studies and diagnostic testing, and medical and rehabilitation management are
the same as the costs associated with this age range for at-home care.
Transportation costs by ambulance are also included in this alternative.
On cross-examination, Ms. Patterson acknowledged that Kayla’s parents
have cared for her in their home for all of her 13 years without all of the
assistance and items identified in her life care plan. The testimony
established that the parents have contrived a number of devices to assist in
meeting Kayla’s needs. Kayla’s parents testified that they would
keep her home barring any unforseen eventuality.
Ms. Patterson acknowledged that the $150,000 for home modifications was not
based upon an estimate of costs to renovate their current home with a builder.
The home in which they currently reside is on a hill, and Ms. Patterson felt
that it would be difficult to modify. Rather, the estimate was to modify a new
location, it did not represent the cost of purchasing a new home, it was the
cost of modifying another home to meet Kayla’s needs.
The annual cost for an educational program and summer camp of $38,000 per year,
Ms. Patterson acknowledged, Kayla already receives, and has never been denied
public education. It was also brought out that Kayla’s medical history
did not reflect as many visits with the various physicians as Ms. Patterson
allotted for in the life care plan. On redirect, Mrs. Patterson noted that the
State’s life care plan has almost an identical follow-up schedule.
The State also provided a Life Care Plan, prepared by Peter D. Stickney. Mr.
Stickney is a Vocational Rehabilitation Counselor. He testified that a
rehabilitation counselor evaluates disabled people generally, and assists with
returning them to productivity and community independence. Mr. Stickney has
extensive experience in both vocational and rehabilitation counseling; he had
some training in life care planning, has prepared many life care plans, and
testified in numerous cases previously. He has no medical background. Mr.
Stickney met with the DuPonts at their home. He utilized Ms. Patterson’s
report in assessing Kayla’s medical needs, and the plan mirrors the one
she prepared with various distinctions. The State’s plan provides three
options. Option one is care by a registered nurse 24 hours a day in the home,
with periodic management by an RN case manager. Additional costs were provided
for medical care, therapies and evaluations, supplies such as a wheelchair,
nebulizer and supplies, tumble form positioners, exercise ball, communication
board, pressure switch, reclining bath chair, “Gorilla” car seat,
hand held shower, power link switches, respiration and cardiac monitor, oxygen
system with supplies, air purifier, suction machine and supplies, electric
hospital bed, specialized air mattress, recliners, diapers and wipes, feeding
supplies and PediaSure, and disposable bibs. The cost for a wheelchair
accessible van every seven years is included as well. Mr. Stickney also
provided an allowance for architectural renovations, specifically, driveway
paving, an elevator from the basement to the first floor or main floor of the
house, and a ceiling mounted lift. The total cost for these renovations is
The second option is full-time care in a skilled nursing facility at an
estimated cost of $86,870 per year. Other than the costs for assistive
technology, neuropsychological, physical therapy, occupational therapy, speech
therapy, wheelchair and supplies and maintenance, tumble forms and exercise
ball, communications board, pressure switch, power link switches, MIC-Key tube
and button, medications and ongoing medical care, all other costs are subsumed
in the annual cost of the nursing facility.
The third option reflects a blended alternative, when Kayla reaches 21, to
include 18 hours per day at a community residence and six hours per day at a day
habilitation program. A RN case manager is also provided for twenty hours at
age 25. All other inclusions and exclusions are the same as option two.
On cross-examination, it was brought out that Mr. Stickney did not review
Kayla’s medical records in developing his life care plan; nor did a doctor
review the plan to determine whether it projected appropriate medical care to
meet Kayla’s needs. Rather, his plan mirrored Ms. Patterson’s plan,
although he modified some of her projected care. He testified that he had the
expertise to modify the care set forth by Ms. Patterson, giving the example that
Kayla had only one assistive technology evaluation done in the past year, and he
felt the standard was once per year, as opposed to once a week.
Mr. Stickney’s cost for physical therapy and occupational therapy was
approximately half of the cost attributed for this care by Ms. Patterson. Mr.
Stickney testified he consulted three local physical therapy providers to
determine that cost; however, there was miscalculation which reflected that the
real average cost was actually $96.67. Despite using a $30 - $40 per hour quote
from St. Camillus, with no clarification as to the time
Mr. Stickney assumed it was for
an hour visit with the occupational therapist and used that quote. Yet, he
agreed that an occupational therapist cannot be hired for $30 - $40 per hour in
Central New York.
Turning to Kayla’s 24-hour care, Mr. Stickney’s plan was $157,680
less than Ms. Patterson’s for 24-hour at home care. This was based upon
the difference between the family hiring an RN independently or contacting a
nursing service agency, which charges approximately $18 more per hour for
nursing services. The nursing agency would then provide a nurse for each shift,
administer payroll, and provide malpractice insurance. Mr. Stickney testified
his plan included a 15% allowance for a payroll service and a 20% additional
allowance for absenteeism and vacations. In Mr. Stickney’s plan, if a
nurse did not arrive for any particular shift, the DuPonts would need to call
in a nurse manager or have available an on-call nurse. In Ms. Patterson’s
plan, the agency would take care of replacing the nurse.
No provision was made for future hospitalizations or surgeries, or care for
prolonged illness, seizure management, infections, GI or dental procedures;
based upon Mr. Stickney’s opinion, that it was too speculative. Costs for
Kayla’s special education needs were also not included, as Mr. Stickney
indicated that she was receiving those services through the public school.
It is undisputed that Kayla requires 24-hour full-time care and will throughout
her life expectancy, as stipulated, to age 30. Kayla’s condition is not
progressive and her needs will remain relatively consistent throughout her
remaining life. From the testimony, it is clear that the DuPonts desire to keep
Kayla in their home and the Court has focused on alternatives one and three of
Ms. Patterson’s plan and option one of Mr. Stickney’s plan. In
reviewing the two life care plans and listening to the testimony, Ms. Patterson
presented a more thorough review of Kayla’s medical needs, medications,
supplies and daily care; and for the most part, Mr. Stickney relied upon Ms.
Patterson’s assessment. Mr. Stickney did not review all of Kayla’s
medical records, does not have a medical background, and did not consult with
any of her medical providers, as Ms. Patterson did, in formulating her plan.
Dr. Havernick also reviewed Ms. Patterson’s life care plan and her
projected medical needs and agreed that the plan was appropriate, based upon
Kayla’s medical condition. Ms. Patterson’s plan, in the opinion of
the Court, more completely meets Kayla’s needs. Some components of her
plan, however, provide for more than optimal care, as some items were not
adequately supported. It would be “...unreasonable either to require that
the injured party scrape by with the least that can be done for [her] to keep
body and soul alive or, on the other hand, to require the wrongdoer to pay for
the best and most luxurious treatment and care available, regardless of the
cost.” (Cesnavicius v State of New York, Ct Cl, Patti, J., February
14, 2002, UID NO 2002-013-501).
Ms. Patterson adequately supported the need for the frequency of services she
set forth, and the State’s plan did not deviate from the schedule she set
forth for the same providers. Mr. Stickney provided no additional inclusions
for future orthopedic surgery, prolonged illness, or emergency room visits,
which, although somewhat speculative, are more than likely, according to Dr.
Havernick, given Kayla’s condition.
What seems to the Court in Ms. Patterson’s report as a duplicative
expense, unexplained by the testimony, was the annual $20,000 cost for the
Baclofen Pump, skilled nurse visits and medication refills. Baclofen is listed
as one of the medications included with her annual medication allotment, and a
skilled nurse will be providing 24-hour care to Kayla daily. No explanation was
given as to why another skilled nurse would be needed. Maintenance fees were
not separated out. One of the largest discrepancies between the two plans is
the cost of full-time skilled nursing care. Ms. Patterson has presented the
cost for agency nursing services, while Mr. Stickney has included the costs for
retaining independent nursing services. The issues with payroll, benefits, and
staffing raised by the testimony persuaded the Court for the need for the agency
nursing services. Mr. Stickney’s explanation that a portion of the $27
per hour for an independent nurse included the cost for a payroll service, which
he did not break down, was not convincing, nor was the explanation for how the
DuPonts would handle absences, sickness, and vacations. The limited time for
the RN case manager in Mr. Stickney’s plan does not adequately address
these problems. At the same time, however, if an agency nursing service is
used, the separate expenditure for an RN case manager was not adequately
explained in Ms. Patterson’s plan.
Ms. Patterson’s inclusion for neuropsychological/neurobehavioral
education for the family at a cost of $6,960, and psychological counseling for
the family at a cost of $10,080 are not proper inclusions as damages for
Kayla’s personal injuries. Although certainly beneficial for the family,
the Court does not find that these should be included expenses.
The cost for home modifications in Ms. Patterson’s plan, to accommodate
Kayla’s needs and movement within the home, seemed arbitrarily determined.
Ms. Patterson testified that the cost allotted was not for modifications to
their current home, but for modifications to another home the DuPonts could
purchase. She speculated that the cost to renovate their current home
“would be probably a lot more than
She did not consult with
a builder or price out the cost of the modifications. Yet, Mr. Stickney
included only minimal modifications at a cost of $22,750. The cost of the
elevator he proposed was based upon the cost from another case. He failed to
include modifications to the bathroom, and another means of egress - not only
through the garage, reinforced flooring, removal of carpeting and installation
of hard surface flooring, and reinforcements for the lift. The Court finds the
cost for necessary modifications, within the range presented, to be $120,000.
The vehicle the family is currently using is not wheelchair-accessible and is 9
years old. A wheelchair-accessible van to transport Kayla is a necessity. Ms.
Patterson has allotted a cost of $50,000 every 5 years. How Ms. Patterson
arrived at the cost for the van is not explained. Mr. Stickney has a cost of
$46,435 every 7 years with a reference supplier. The Court accepts the
defendant’s cost for transportation. Mr. Stickney, however, did not make
any allotment for maintenance or a portable ramp, which seem to be necessary
inclusions to transport Kayla to different locations and to extend the life of
the van over those 7 years. The maintenance figure of $1,500 annually and $200
every 5 years for a ramp are accepted by the Court.
Ms. Patterson has included a cost of $35,000 per year for an educational
program for Kayla, “in the event the school system cannot meet her
Kayla is currently receiving
special education through the school district, and there was no evidence that
her educational needs are not being met. The cost for summer camp at $3,000 per
year is also an expenditure which is nice but is not necessary to meet
The balance of Ms. Patterson’s Life Care Plan the Court finds necessary
for Kayla’s proper care at home for the remainder of her life. The costs
for the balance of the plan were either adequately supported by the testimony,
or were the same costs attributed by Mr. Stickney.
3. Loss of Earning Capacity and Economic Analysis of Costs for Medical Care
and Other Needs
In order to determine the total cost for each life care plan, and to assess the
amount of loss earnings Kayla will suffer, both parties presented the testimony
of experts. For purposes of the life care plan, the parties stipulated to a
life expectancy for Kayla of 16 years from November 29, 2006.
David L. Hopkins is a self-employed actuarial economic consultant. He applies
mathematics, statistics, statistical modeling and basic financial theory to
situations where it is necessary to determine how much money must be set aside
today, or on a regular basis, to provide the appropriate funding for various
future payments. He has been working in this field for the past 26 years. He
has evaluated the economic impact of a personal injury in thousands of cases,
and he has testified just over 400 times in several states, including New York.
In this particular case, based upon the complete disability of Kayla, he
determined a loss of earning capacity for a normal work-life period, taking into
consideration the reduced life expectancy, and he calculated the projected cost
of the medical care and her needs, with appropriate increasing factors for
inflation over time. To project the future cost of Kayla’s medical care,
he included an inflationary increase the same as for the projected earning
capacity of 3% per year; however, he also included an additional option which
provides for a more significant increase of 6½ %, based upon his opinion
and calculations that medical costs have been increasing at a higher rate than
The loss of earning capacity includes a consideration for changes to the level
of earnings that occur in a normal working career due to inflation, merit and
productivity, and life cycle changes. Mr. Hopkins utilized statistics from the
U.S. Department of Commerce, Bureau of Census, to determine average earning
levels for females by educational attainment and age grouping. He applied a 3%
inflationary factor based upon statistics from the Department of Labor,
Department of Commerce, and the Economic Indicators Publication.
Mr. Hopkins initially determined Kayla’s normal life expectancy and then
her work-life expectancy, based upon educational attainment. He referenced the
educational background of Kayla’s parents, who both have high school
diplomas, and statistics indicate that the anticipated educational level for a
child is generally equal to, or better than, the parents. Mr. Hopkins,
therefore, utilized a working life beginning after a high school diploma, and
alternatively an Associates Degree and a Bachelor’s Degree, and continuing
until a normal retirement age of 65. An additional allowance of 20% was made
for fringe benefits. Included in the fringe benefits was health insurance
coverage, employer contributions, and other insurance, a portion of the
mandatory contributions to Social Security and FICA, and pension or retirement
benefits. A deduction was also made for Kayla’s personal consumption
expenses, that portion of her income that would be spent on food, shelter,
clothing, etc., which varies upon educational attainment from 38% for a high
school graduate, 34% with an Associate’s Degree and 30% with a
Bachelor’s degree. The reduction for taxes range from 10% with a high
school diploma, 12% with an Associate’s Degree and 14% with a
Bachelor’s Degree. No deduction was made for FICA contribution. The
personal consumption deduction, Mr. Hopkins only applied to the period of time
from Kayla’s life expectancy through to normal retirement age, as he
reasoned that during her lifetime she would be consuming or incurring those
Mr. Hopkins’ report reflects that the future lost earning capacity with
inflation, if Kayla entered the work force with a high school diploma would be
$3,530,416, $4,464,920 with an Associate’s Degree, and $5,688,779 with a
Bachelor’s Degree. With Kayla’s life expectancy reduced to roughly
age 30, that earning capacity, less personal consumption and income taxes, would
be $2,684,216 for a high school diploma, $3,438,718 for an Associate’s
Degree, and $4,455,853 for a Bachelor’s Degree.
On cross-examination, Mr. Hopkins acknowledged that he did not take into
account that the life care plan provides for all of Kayla’s medical care
in calculating her personal consumption deduction or the fringe benefit
calculation. Mr. Hopkins explained that he didn’t take that into account
because he viewed the life care plan as reflecting the additional cost of
medical care as a result of the personal injury Kayla suffered and the
anticipated costs may not cover all of her needs over time. In explaining why
he did not consider the FICA employee contribution in his calculations, Mr.
Hopkins stated it was because the contribution also has a value for the
employee, which he has already included in the level of lost earning capacity.
Mr. Hopkins reiterated that no personal consumption deduction should be made
during Kayla’s life expectancy, because she will be still incurring those
expenses for her daily living.
Utilizing the life care plan prepared by Ms. Patterson, Mr. Hopkins calculated
the annual costs year by year and then calculated the future costs for
Kayla’s care at home and in a facility. Some of the items calculated
include one-time costs and others are regular costs that reoccur annually.
Measuring the costs Ms. Patterson set forth for the duration of Kayla’s
life expectancy, he included an across-the-board 3% inflationary factor for each
year after the first year, and alternatively a 6.5% increase. Mr. Hopkins
breaks down the costs on a year-by-year basis in his report, and a larger sum is
shown for the first year and again at age 21 to accommodate the one-time costs.
Based on his calculations, the total future costs, to age 30, for at-home care
with a 3% inflationary increase would be $11,177,739. At a 6.5% inflationary
increase, the future cost would be $14,569,939. The total cost for facility
care, with a 3% inflationary increase, is $5,364,060 until Kayla reaches age 30,
and $6,764,847, with a 6.5% inflationary increase.
Defendant presented the testimony of Dr. Lawrence M. Spizman, a full-tenured
Professor of Economics at the State University of New York at Oswego. He has
worked at that university since 1977. Dr. Spizman specializes in labor
economics, forensic economics and law, and economics. Forensic economics, Dr.
Spizman described, as a subarea in the economics field which takes data and
information and projects losses. As of December 2006, when this claim was
tried, Dr. Spizman had worked on 37 cases that year, assessing personal injury
and/or wrongful death or wrongful termination damages. Dr. Spizman has
testified in other cases as an expert witness. Dr. Spizman compiled a
calculating the expected loss of
earnings and future medical costs and then did a revised report, based upon the
parties’ stipulated life expectancy to age 29.87. Based upon that life
expectancy Dr. Spizman calculated Kayla’s lost earning capacity to that
age. Dr. Spizman utilized a model which projects the probability of Kayla
obtaining different educational levels, from not finishing high school, to
getting a high school diploma, to completing some college getting a
Bachelor’s Degree, Master’s Degree, or a Ph.D. The probabilities at
either end are small, with the greatest probability (54.8%), that she would have
obtained a high school diploma. He then took the probability of the various
educational attainments and looked to statistics from the Census Bureau to
determine potential earnings for a female in different age groups. Based upon
this information, he prepared tables reflecting the various educational
attainments, the age earning profiles for females at the different educational
levels, and arrived at Kayla’s projected earning loss, with adjustments
for personal consumption, growth rates, and a “smoothing
He also added 4.3% for
fringe benefits for retirement and savings. He based this upon data for all
civilian workers by major occupational and industry groups. Dr. Spizman did not
provide an addition for the cost of health insurance as all of Kayla’s
medical care is covered by the life care plan, and he felt it would provide a
double recovery for her health expenses. Personal consumption expenses were
deducted for all of Kayla’s work-life expectancy, which in Dr.
Spizman’s proposal is the same as her life expectancy, based on his
reasoning that the life care plan provides, in options 2 and 3, for
Kayla’s residential care and, thus, she will not incur typical living
expenses. He calculated self-consumption levels for a one person, female,
family-unit at 97.7 %, with the percentage decreasing as income increased
utilizing the Patton-Nelson Personal Consumption Tables 2000-2001
In Table 3 of Dr. Spizman’s report, he sets forth the probability of
attaining various educational levels, the earnings for the various educational
levels, and the adjustment for probability to calculate a total earnings
capacity loss of $95,023. This is a present-value calculation, after adding
fringe benefits and deducting personal consumption.
Dr. Spizman also calculated the future cost for Kayla’s care through her
life expectancy, based upon the life care plan prepared by Mr. Stickney. He
utilized the cost to meet Kayla’s needs as set forth in Mr.
Stickney’s life care plan, calculating in a growth rate for each
component, based upon the Consumer Price Index for medical care services and
then projected that out into the future 16 years. The cost for each component
of the life care plan is set forth on a year-by-year basis with the cumulative
totals. Table 1 of his report is a compilation of all the cumulative
calculations for each component and option of the life care plan. Tables 4
through 14 break down the cost of each component of the life care plan for the
three options and includes a growth rate of 2.65% for projected future medical
evaluations and therapeutic modalities, based upon the medical care component of
the Consumer Price Index. A growth rate of only 1.39% was used for wheelchair
needs, accessories, and maintenance. Utilizing the medical care commodities
component of the medical care Consumer Price Index, Dr. Spizman used a 2.93%
growth rate for aids for Kayla’s independent function, home furnishings
and accessories, and supply needs, and 3.66% for medication. He increased the
cost for in-home care and facility care to 4.09%, again based upon the nursing
home services component of the Consumer Price Index. The costs for
transportation for Kayla are only increased by .82%, based upon a less than 1%
growth rate, according to the Consumer Price Index. The growth rate for
physicians’ services is 3.53%. From Table 1, Dr. Spizman calculated the
total cost for total in-home care for Kayla at $6,278,313. The cost for
Kayla’s care at a skilled nursing facility is $2,778,725, and for Mr.
Stickney’s blended care in Option 3, Dr. Spizman calculated the cost to be
On cross-examination, when questioned about limiting Kayla’s loss of
earning potential to her reduced life expectancy, Dr. Spizman noted that in his
he calculated Kayla’s
loss of earning capacity to normal retirement age, which, for a high school
graduate, he assessed at roughly 51 years or $544,947. This calculation
includes fringe benefits through life expectancy and takes the personal
consumption deduction throughout her work life expectancy, assuming all
Kayla’s needs would be met by placement in a residential skilled nursing
facility in Mr. Stickney’s options 2 and 3. Instead, if Kayla receives
24-hour in-home care, no personal consumption deduction should be taken during
her life expectancy and, as a result, her total loss of earnings capacity would
be $979,000. Dr. Spizman could not calculate the present value of that number
at trial. He agreed that since his economic analysis is based upon the costs
set forth in Mr. Stickney’s report, if there were errors in that report,
his economic analysis would also be incorrect.
The Court finds that Kayla’s loss of work expectancy should be calculated
to a normal retirement age of 65 years. Loss of earning potential would not be
compensatory if calculated only to her shortened life expectancy (see Doe v
State of New York, 189 AD2d 199, 206). It is very unlikely that, without
the catastrophic injuries Kayla suffered, she would have only worked until age
30. The Court also finds suspect that a worker with a high school education
will leave the work force at age 50.92, as calculated by Dr. Spizman, almost 17
years before being eligible for Social Security Benefits. The Court finds that,
based upon her parents’ educational background, Kayla would have acquired
at least a high school education. Although, as Dr. Spizman calculated this
loss, the percentage likelihood that Kayla would have attained a higher degree
is factored into the total work-loss expectancy.
Both experts set forth average earning levels for females in various age ranges
with a high school education. Mr. Hopkins had a range of earnings beginning at
the age of 18 at $20,580 up to $32,324 for the age range of 60 to 64 years. Dr.
Spizman had a range of earnings beginning at $18,285 up to $26,511 for the age
range of 55 through 64 years. Given these ranges of earnings, the Court has
averaged the two to arrive at a range of earnings at the following ages:
Both experts used similar percentages of annual inflationary increases, and the
Court accepts the 3% per year increase for a high school graduate. A percentage
of lost earnings also requires factoring in the loss of fringe benefits. Fringe
benefits include payments an employer would have made to retirement accounts,
health insurance, life insurance, contributions to Social Security, and FICA
taxes. Mr. Hopkins calculated in 20% for fringe benefits. Dr. Spizman
calculated in 4.3%, reasoning that he excluded the cost of health insurance
since most of Kayla’s medical needs are being met by the life care plan.
The Court takes issue with the exclusion of health insurance benefits, as at
best, the life care plan only covers a small portion of Kayla’s working
life, and this portion of the award is to compensate her for the loss of
benefits she could have earned but for the injuries suffered at the hands of
defendant. The Court finds the 20% inclusion for fringe benefits
Deductions from projected earnings are made for personal consumption expenses
and income taxes. The deduction for personal consumption should be made only
for Kayla’s projected work life beyond her life expectancy, or from 30
until age 65. Dr. Spizman, using the Patton-Nelson Personal Consumption
Tables 2000-2001: Updated and Revised assessed that, on average, 97.7 % of
income for lower income wage earners is spent on self-consumption. Mr. Hopkins
assessed that 38% of a high school graduate’s income is spent on personal
consumption and 10% on income taxes. There is no indication from his testimony
or his report how Mr. Hopkins came up with the 38% personal consumption
expenses. However, the Court finds the 97.7 % deduction high. Instead, the
Court finds that an average of the two is more appropriate and calculates that
67.85% of Kayla’s projected future earnings as a high school graduate
would have been spent on personal consumption and income taxes.
Based upon the foregoing, the Court finds that Kayla’s loss of future
earnings is $1,582,422(R).
Each expert’s economic analysis of the life care plans are problematic.
Each expert utilized the life care plans as set forth in total by Ms. Patterson
and Mr. Stickney. Although the Court finds Ms. Patterson’s life care plan
more complete and appropriate, there were certain components that need to be
removed or adjusted, as described above. Mr. Hopkins takes an annual
inflationary increase for all items in Ms. Patterson’s Life Care plan of
either 3% or 6.5%. Dr. Spizman utilized a different percentage for each
component of the Life Care Plan, as each service or item has a different rate of
historical inflation. This seems a more accurate approach. Accordingly, based
upon the adjustments described above to Ms. Patterson’s Life Care Plan,
and including the inflationary rates identified by Dr. Spizman for each
component of the Plan, the Court finds the future cost for the following
services/items throughout Kayla’s life expectancy:
Therapeutic Modalities: $ 466,575
Supplies and Equipment: $ 311,000
Nursing Services: $8,445,000
Home Modifications: $ 156,435
Transportation: $ 174,000
Total Cost for the Life Care Plan for At Home Care: $10,551,389
Total Lost Earnings: $1,582,422(R)
The Court awards $1,200,000 for past pain and suffering and $1,500,000 for
future pain and suffering.
Past pain and suffering: $1,200,000
Loss of future earnings: $1,582,422
Future Medical and Related Expenses: $10,551,389
Future pain and suffering: $1,500,000
Total award for future damages: $13,633,811
Since the amount of future damages exceeds $250,000, a structured judgment is
required (CPLR 5031).4
Let judgment be
held in abeyance pending a hearing pursuant to CPLR Article 50-A and to
determine collateral source issues (CPLR 4545[a]). The Court encourages the
parties to agree upon an attorney fee calculation and the discount rate to be
applied to formulate a structured settlement of their own (CPLR
In the event that the parties
cannot reach such an agreement, each party will submit a proposed judgment in
writing, conforming to the requirements of CPLR 50-A, within 120 days of the
date this Decision is filed with the Clerk of the Court. A hearing will
thereafter be scheduled at the mutual convenience of the parties and the Court
with regard to the collateral source issues and the structured judgment.
To the extent claimant has paid a filing fee, it may be recovered pursuant to
Court of Claims Act §11-a(2).
All motions made at trial and not heretofore ruled upon are denied.
Syracuse, New York
HON. DIANE L. FITZPATRICK
Judge of the Court of Claims
. Placenta separates from the wall of the
uterus prior to the birth of the child (Dr. Pressman, Transcript, p. 926, lines
. During labor there is a lack of oxygen which
causes a buildup of carbon dioxide causing acidosis and asphyxia (Dr. Cetrulo,
Transcript, p. 165, lines 9-15).
. An ultrasound is a machine that uses sound
waves to permit a view of the uterus, ovaries, cervix and the baby (Dr.
Silverman, Transcript, p. 853, lines 2-5).
. A cerclage is a “noose or purse
string” that is put around the cervix to keep the pregnancy intact (Trial
Transcript, p. 119, lines 7-10).
. Merriam-Webster Medical Dictionary
, p. 292.
.Exhibit 2, pp. 66 and 46.
1.Exhibit 2, p. 46, Trial Transcript, p.
.Trial Transcript, p. 701, line 22, p. 703,
. Exhibit 51, p. 128, lines 10-17.
.Exhibit 2, p. 47, Trial Transcript, p.
705, lines 18-21.
. Trial Transcript, p. 156.
. Exhibit 51, p. 56, lines 1-6.
Trial Transcript, pp. 651-652.
.Trial Transcript, p. 769, Exhibit 51, p.
2. Trial Transcript, page 692 lines
.Trial Transcript, p. 702 lines 13-18, and
.Trial Transcript, p. 712, lines
. Exhibit 51, p.108, lines 3-9.
. Trial Transcript, p. 813, lines
.Trial Transcript, page 814, lines
.Trial Transcript, page 816, lines
.Exhibit 51, p.136, lines 2-3.
.Trial Transcript, p. 719, lines 1-5.
Trial Transcript, p. 236, lines 2-15.
3. It was Dr. Cetrulo’s opinion that
the umbilical vein actually takes nutrients to the fetus and the umbilical
arteries (there are usually two) carry blood from the fetus back to the
placenta, so the umbilical artery Doppler actually measures resistance in the
placenta (Trial Transcript, p. 204, lines10-19; also p. 892, lines 3-19).
.Trial Transcript, pp. 156-157.
. Trial Transcript, p. 543.
. Trial Transcript, p. 545, line 9.
. Dr. Havernick explained this as if you
pick the baby up under their arms and because they are unable to stabilize their
shoulders, they fall through. The infant claimant, at this point, had enough
muscle tone to stabilize her shoulders so that she did not slip through (Trial
Transcript, p. 553, lines 9-22).
.Dr. Havernick described this as the
reactive swivel of a baby’s hips in the direction of a scratch on the
baby’s back (Trial Transcript, p. 553, lines 9-14).
. Defined as a permanent shortening as of a
muscle or tendon (or scar tissue) producing deformity or distortion
(Merriam-Webster Medical Desk Dictionary
 p. 162).
. The $30 - $40 quote for physical therapy
from the same provider was for a 15-minute session, not an hour.
. Trial Transcript, p. 357, lines
4. Exhibit 49, Life Care Plan, p. 52.
. Dr. Spizman indicated that for each age
grouping, there is a change in income which does not occur immediately on the
worker’s birthday, but rather would normally grow relatively smoothly over
time, so increases in income reflected in the Census Bureau information were
graduated over the age range of the grouping, or, in other words,
.This is the future damage amount requiring
a structured judgment for claims filed before the amendment to CPLR 503 became
effective on July 26, 2003.
.This is the CPLR 5031(f) applicable to
claims filed before July 26, 2003.