Windsor boy, injured at birth, wins millions

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by Alex Wood
Journal Inquirer

November 2, 2006

A Hartford Superior Court jury this week awarded a medical malpractice verdict of almost $2.6 million to a 4-year-old Windsor boy who has permanent limitations on the use of his right arm due to injuries he suffered as he was born, according to the boy's lawyer.

In addition to the award to the boy, Omar Earlington Jr., the jury awarded $108,000 to his mother, Tamar Earlington, for the emotional distress she suffered as a result of his injury, according to the lawyer, Kathleen L. Nastri of Bridgeport.

Because the verdict exceeds the $1 million "offer of judgment" the Earlingtons made last year, they also will be entitled to 12 percent interest, bringing the total award to some $3.5 million, Nastri said.

The defendants in the case were Dr. Anthony Anastasi, a now-retired obstetrician, and his practice group, FAL Medical Associates P.C.

St. Francis Hospital and Medical Center in Hartford originally also was named as a defendant. But Nastri said she withdrew the suit against the hospital after it became clear from pretrial deposition testimony that its employees, the nurses and medical resident who were present during the delivery, weren't responsible for Omar's injury.

During his birth, Omar suffered a stretching injury to the nerves that run from his spinal cord to his right arm, Nastri said. As a result, he suffers from a permanent condition known as Erb's palsy.

He can't raise his arm above shoulder level and the muscles of his upper arm are weakened, the lawyer said. In addition, she said, he has "contractures" at his shoulder and elbow, meaning he can't straighten his arm completely. But she added that he has "good use of his hands."

Nastri said the verdict is the largest one she knows of in Connecticut for a baby with Erb's palsy.

"I think it's an inflated verdict under the circumstances, and I think it was a miscarriage of justice," said Stamford lawyer James Rosenblum, who represented Anastasi and his practice group. He said he will file motions asking Judge Lois Tanzer to set aside the verdict or reduce the award.

Rosenblum said Anastasi delivered thousands of babies in his career and never had been sued before. Nastri said Omar will need continuing therapy and "a lifetime of assistance" with numerous tasks of day-to-day life, such as home repairs, shoveling snow, raking leaves, and changing window screens.

"He couldn't be a carpenter or electrician or fireman," Nastri said, explaining that he will be unable to do work that requires having both arms over the head at the same time.

He can't swing on a swing or climb on a jungle gym, she said. "He will never have a chance to play sports on any competitive level."

But Rosenblum said Tamar Earlington has failed to take her son to physical therapy from age 18 months to the present, even though the therapy was available for free. With the therapy, the defense lawyer said, Omar might be in much better condition.

"It's a sort of sad state of affairs that by not helping Omar, it helped the lawsuit," Rosenblum said.

The defense lawyer also questioned some of the measures called for by one of the expert witnesses called on Omar's behalf, who said the boy should have lessons in horseback riding and swimming.

Nastri said the lawsuit alleged that Anastasi made two mistakes during the April 2002 delivery:

  • He pulled on Omar's head about six times with a vacuum extractor.
  • Once Omar's head had emerged, his shoulders got stuck in the birth canal. Nastri said Anastasi put his hand on Omar's cheekbone and pushed his head sideways in an effort to dislodge him - but used too much force.

She said Dr. Samuel Vigneri, the medical resident who was present, persuaded Anastasi to let him attempt the delivery, which he completed successfully.

Vigneri "probably saved the baby's life," Nastri said.

The jury was asked to record its detailed findings on a form. Rosenblum said the jury found Anastasi negligent in his use of the vacuum extractor but didn't find unanimously that he should have performed a Caesarean section.

The defense lawyer argued that those findings were inconsistent because the plaintiffs' argument was that Anastasi should have performed the Caesarean section rather than trying to pull Omar down the birth canal, where his shoulders got stuck. The stretching of the nerves didn't occur until the baby's head was out, Rosenblum said.

He also said Omar is of normal intelligence but could have suffered brain damage if there had been too much delay in the delivery.