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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. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  2. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  3. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

  4. I totally agree with John Smith.

  5. An idea that would harm the public good which is protected by licensing. Might as well abolish doctor and health care professions licensing too. Ridiculous. Unrealistic. Would open the floodgates of mischief and abuse. Even veteranarians are licensed. How has deregulation served the public good in banking, for example? Enough ideology already!

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