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