Hospital To Bear Brunt of $18 Million Verdict for Obstetrician’s Malpractice
By Henry Gottlieb
An Essex County jury awarded $18.5 million on April 29 in a birth defect case in which the plaintiff benefited from a finding that the negligent doctor was an employee of the hospital and covered by its insurance.
Joan Lieser, a part-time contract physician at Newark Beth Israel Medical Center, with $1 million in coverage, was found liable for failing to perform a timely Caesarean section, causing cerebral palsy at the birth of the child, now 12.
The plaintiff will receive $16.75 million under a high-low agreement, placed on the record with Superior Court Judge Thomas Vena while the jury was deliberating, which guaranteed a recovery of $5.5 million.
A key issue before trial was whether Lieser was a private doctor who used the hospital’s facilities and was covered solely by her own insurance or was a hospital employee covered by its insurance of up to $150 million.
Plaintiff’s lawyer David Mazie, of Mazie Slater Katz & Freeman in Roseland, says the hospital sought to deny coverage but he obtained an order that Lieser was an employee. That obviated the need for further inquiry under Cordero v. Christ Hospital, 403 N.J. Super. 306 (App. Div. 2008), which makes hospitals liable if a patient reasonably believes a doctor’s care is rendered on the hospital’s behalf.
Darlene Kim of Edison alleged in Kim v. Newark Beth Israel Medical Center that Lieser, of Springfield, and hospital resident Denise McSherry failed to act on signs of fetal distress and undertake a timely Caesarean section to quicken delivery of Kim’s grandnephew, Darius Morgan, on April 20, 1998. Had they done so, he would not have developed cerebral palsy caused by oxygen deprivation, requiring a lifetime of care, according to evidence presented in the four-week trial.
Mazie says the evidence showed that the baby was in fetal distress for several minutes after 12:42 a.m. but would have been delivered safely if a Caesarean had been undertaken around 1 a.m. The operation was performed 20 minutes later. The mother, Nichol Morgan, died of lupus in 2004.
The jury awarded $16.6 million for Morgan’s life care, $1.5 million for lost wages, $250,000 for pain and suffering and $167,000 for past care.
Lieser’s lawyer, Rowena Duran of Duran & Pandas in Mountainside, says the defense evidence showed Lieser was prepared to perform a timely Caesarean but had to wait for an anesthesiologist who was finishing up care to another Caesarean patient.
The defense evidence also suggested that the doctors were reluctant to do a Caesarean because the mother was a Jehovah’s Witness and had stipulated before childbirth that she could not receive blood transfusions. Mazie said that the ban should have compelled the doctors to act earlier to ensure that the Caesarean proceeded smoothly, obviating the need for transfusions.
The other defense counsel were Robert Swift of Fulbright & Jaworski in Houston and Lauren Strollo of Vasios Kelly & Strollo in Union.
Reprinted with permission from the May 10, 2010 edition of New Jersey Law Journal ©2010 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited.