Medical Malpractice Case Nets $58 Million Verdict

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Delayed delivery left child with severe cerebral palsy

by Thomas B. Scheffey
Connecticut Law Tribune

May 25, 2011

Three years after the same case resulted in a hung jury, a second Waterbury jury returned a $58 million verdict against a local gynecologist, Richard Viscarello, of Maternal-Fetal Care, P.C.

Trial lawyers Kathleen Nastri and James Horowitz, of Bridgeport’s Koskoff, Koskoff & Bieder, argued the case on behalf of Norwalk resident Daniel D’Attillo and his parents. They convinced the jury that the doctor had breached the standard of care by not starting a caesarean section delivery in time.

Viscarello began treating Cathy D’Attillo in July 2002, according to the complaint. By Jan. 31, 2003, the mother was in her 39th week of pregnancy. According to the defense, the standard of care was to not deliver a baby before 40 weeks of gestation, said Nastri. The case was defended by James Rosenblum, of Stamford’s Rosenblum Newfield.

Nastri’s firm said the case was the highest medical malpractice verdict in Connecticut history.

Rosenblum said his post-verdict motions will include one to set aside the verdict or, alternatively, to reduce the verdict as excessive and driven by emotion. “It was a complete runaway verdict, unsupported by the evidence. It’s not only uncollectable; it’s unsupportable.”

The four-week trial unfolded before Judge Kevin Dubay. Three years earlier, Waterbury Superior Court Judge Jane Scholl presided over the first trial, which ended in a 5-1 deadlocked mistrial. The jury heard closing arguments on May 20, and deliberated for two and a half days before delivering a midday verdict today.

The couple used in vitro fertilization to have their first and only child, said Nastri. When the mother visited the doctor for her checkup Jan. 31, her level of amniotic fluid was at half the normal level. “Our expert said that is an indication there is something wrong with the baby, and it has to be delivered that day, by caesarean section,” Nastri said. Delivery, however, was delayed.

It was not clear whether the mother was leaking fluid, or not producing enough. “Amniotic fluid is basically the baby’s urine, and for some reason he wasn’t producing enough urine. The fluid supports the baby’s well-being by keeping the baby cushioned, by keeping the umbilical cord from being compressed, and keeps the baby safe from trauma in utero,” said Nastri. “Our expert said that with that kind of drop in the fluid, you have to deliver this baby.”

Two days later the mother went into labor. By the time they got her down to the operating room, the baby appeared to be stuck in breach birth. The father filmed a video of the delivery, and at one point on the soundtrack, said Nastri, “the doctor says ‘Holy shit!’ And the Mom says, `Holy shit? That can’t be good.”

For the next three or four minutes, they struggled to get the baby out. When he was born, his only sign of life was a heartbeat. “He wasn’t breathing; he wasn’t moving; he was pale and was essentially lifeless. They resuscitated him, but he developed cerebral palsy,” Nastri said.

The child needs extensive home care, according to Nastri. “They take great care of him, but they need a lot of help. The father came to America from Italy with his family as a child, and works as a mason contractor. Mom stays home and takes care of Danny.”

It would be unusual for a doctor to have insurance covering a verdict of this size. Nastri said she does not anticipate the entire verdict will be collectable . Nastri made a $4 million judgment offer in 2005, so interest on that will probably add about $30 million to the total verdict, she said.