The 'Big Baby' In Med-Mal Case Was Not The Mother; Jurors disagreed with doctor's critical assessment

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by Thomas B. Scheffey
Connecticut Law Tribune

March 21, 2005

During the five-week medical malpractice trial of Waterbury obstetrician Thomas McNamee Jr., the five-man, one-woman jury was inscrutable.

There were no nods of sympathetic recognition, as plaintiffs' lawyer Joshua D. Koskoff explained the details of Leslie Aponte's difficulty giving birth to Jodee Viera nine and a half years ago.

Aponte had three previous children, none by caesarean section. Her third was a sturdy nine pounds six ounces, with the second phase of labor lasting three hours.

Aponte, a Waterbury waitress, was sensing that her fourth birth would be harder still, Koskoff said in an interview. "During the second stage of labor with Jodee, when she said 'I don't want to push anymore, I want a cesarean section,' the doctor said, 'You're being a big baby.' She did push for 45 minutes, albeit ineffectively. But the fact that she'd had three babies before wasn't being credited at all."

The second phase of labor with Jodee lasted five hours, until another doctor, Ian Cohen, pulled the baby out. In the process, the infant suffered "shoulder dystocia" which permanently damaged nerves, making it impossible for her to lift her left arm above 90 degrees.

The jurors included a postal worker, a retired IBM executive and an Oxford Health employee. When they returned after two and a half hours of deliberation, they were so poker-faced Koskoff said he thought they were about to find for the doctor.

Instead, they awarded Jodee Viera $2.5 million.

Focused Blame

Initially, Koskoff and his co-counsel, John D. Jessup, at the Bridgeport firm of Koskoff, Koskoff & Bieder, named a Waterbury hospital and Cohen, a senior member of Associated Women's Health practice group, which McNamee subsequently left. After discovery, said Koskoff, claims against the hospital and Ian Cohen "were withdrawn for no payment, because ultimately if Dr. McNamee had done his job, Dr. Cohen would only have been involved as an assistant to the cesarean section."

As for the hospital, he said, "It became clear that the nurses acted appropriately enough; it came down to Dr. McNamee's failure to oversee and manage the second stage of labor."

The baby was born not breathing with a flaccid left arm. "She made a relatively fortunate recovery in terms of oxygenation," said Koskoff, and there was no brain damage. Furthermore, there was some spontaneous recovery from the shoulder injury. "She has limited use of her left arm above 90 degrees. She will now be able to afford the surgery that can help her with her range of motion. It won't solve the problem, but it will help," he said.

Estimating the damages was a matter of long-range statistical projection, assuming an average level of ability, reduced by the girl's lack of bi-manual dexterity. Viera's lawyers called on economics professor Gary M. Crakes, Ph.D., from Southern Connecticut State University, and rehabilitation expert Lawrence Forman, who runs a major rehabilitation center in Miami and does vocational analyses for people with disabilities.

Part of the damages are due to the girl's need for corrective surgery, which requires muscle grafting and is designed to assure that her arm is as mobile and supple as possible, without becoming stiff and deformed over time.

Waterbury Superior Court Judge Dennis G. Eveleigh heard the case, which ended March 3. Dr. McNamee was defended by Tyler, Cooper & Alcorn partner Regina Duchin Kraus and associate Renee M. Reed. Kraus was on vacation, and the firm had not responded to a call for comment by press time.

Excess Liability

Koskoff said the case has been proceeding since 1997, and that at no point had the doctors' insurer made a settlement offer. He said he did not know whether McAfee was opposed to settling, or whether it was a strategic decision by the insurer. The malpractice policy limits are $2 million, he said, which exposes McAfee's personal assets. While there are no known cases of Connecticut trial lawyers going after doctors' homes, cars and bank accounts to satisfy malpractice awards, Koskoff didn't want to let McAfee off the hook just yet.

"We have a judgment that exposes Dr. McNamee personally. It's always an option [to go after his personal assets.] Whether it's something that's done, been done or not, it's a judgment against him personally, and it exposes doctors individually--which is why doctors should carry as much insurance as they can.

"He's got a $2 million policy, so our judgment will be in excess of our policy. That's something I brought to the attention of the insurance company. To my knowledge he didn't have a personal lawyer, and I don't know whether he ever consented to settle."