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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. Can I get this form on line,if not where can I obtain one. I am eligible.

  2. What a fine example of the best of the Hoosier tradition! How sad that the AP has to include partisan snark in the obit for this great American patriot and adventurer.

  3. Why are all these lawyers yakking to the media about pending matters? Trial by media? What the devil happened to not making extrajudicial statements? The system is falling apart.

  4. It is a sad story indeed as this couple has been only in survival mode, NOT found guilty with Ponzi, shaken down for 5 years and pursued by prosecution that has been ignited by a civil suit with very deep pockets wrenched in their bitterness...It has been said that many of us are breaking an average of 300 federal laws a day without even knowing it. Structuring laws, & civilForfeiture laws are among the scariest that need to be restructured or repealed . These laws were initially created for drug Lords and laundering money and now reach over that line. Here you have a couple that took out their own money, not drug money, not laundering. Yes...Many upset that they lost money...but how much did they make before it all fell apart? No one ask that question? A civil suit against Williams was awarded because he has no more money to fight...they pushed for a break in order...they took all his belongings...even underwear, shoes and clothes? who does that? What allows that? Maybe if you had the picture of him purchasing a jacket at the Goodwill just to go to court the next day...his enemy may be satisfied? But not likely...bitterness is a master. For happy ending lovers, you will be happy to know they have a faith that has changed their world and a solid love that many of us can only dream about. They will spend their time in federal jail for taking their money from their account, but at the end of the day they have loyal friends, a true love and a hope of a new life in time...and none of that can be bought or taken That is the real story.

  5. Could be his email did something especially heinous, really over the top like questioning Ind S.Ct. officials or accusing JLAP of being the political correctness police.

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