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Medical malpractice

June 23, 2010
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Trial Report

Jason Cole Sr., as Personal Representative of the Estates of Patricia Harris Cole and Baby Jason Cole Jr. v. Joseph M. Smith, M.D.

Wayne Circuit Court No. 89C01–0103-CT001

Injuries: Wrongful death of 34-week-old fetus

Date:
March 26, 2010

Judge or Jury Trial:
Jury trial

Judge: Hon. David Kolger

Disposition: $1.1 million

Plaintiff Attorneys:
Jason R. Reese and Stephen M. Wagner, Wagner Reese & Crossen

Defendant Attorneys:
Kirk Bagrowski and Louis Voelker, Eichhorn & Eichhorn

Insurance: Pro Assurance

Case Information: A Wayne County jury returned a verdict of $1.1 million in favor of the plaintiff and against a Richmond OB/GYN in this medical malpractice action. It was a 5-day jury trial before Judge David Kolger. The plaintiff, Jason Cole Sr., claimed that the defendant failed to comply with the applicable standard of medical care and that his negligence was a factor in causing the death of baby Jason Cole Jr. (then 34-weeks gestation).

The issues facing the jury were: (1) whether the defendant was negligent in ordering a “stress test” a/k/a OCT test in lieu of a non-stress test a/k/a a biophysical profile; (2) whether any act or omission by the defendant caused the death of the infant; and (3) whether baby Jason was born alive or stillborn.

The defendant argued that the OCT test met the standard of care, the alleged acts of the defendant did not cause the death of the infant, and the infant was stillborn, thus limiting any damages to emotional distress of the mother only.

The defense made no settlement offers.

Just before trial plaintiff offered to settle all claims for $100,000.

The case involved the death of a 34-week-old baby when the mom presented to Reid Hospital on Jan. 27, 2001, complaining of lower abdominal pain, lower back pain, and decreased fetal movement.

The experts agreed that pathology showed mom had a severe placental abruption which began before her presentation to the hospital. All of the experts and the three treating doctors agreed that the baby was alive, but in danger, when mom presented to the hospital.

The defendant did not review the entire chart which indicated “possible fetal compromise,” but instead testified that he obtained his information directly from the nurse, the mom, and other treating doctor. Despite the non-reassuring fetal heart rate tracings, he ordered the stress test instead of a non-stress test.

The defense expert, Dr. David Kiley, testified that there was no deviation in the standard of care by the defendant and that, even if there were, there was nothing that could have been done to change the outcome – the baby would have died anyway as a result of the severe placenta abruption that had existed long before mom presented to the hospital.

The jury deliberated for 2 hours, 15 minutes before rendering a verdict.

Even more tragic was the fact the baby’s mother was never able to see justice through the legal system. On July 14, 2006, approximately 5 1/2 years after her baby died, Patricia Harris Cole died in an unrelated car accident in Richmond. This made presentation of damages very difficult. “Trish” is survived by her husband, Jason Cole Sr., and her three other children.•

– Jason R. Reese
 

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  1. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  2. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  3. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  4. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  5. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

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