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

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. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  2. Paul Hartman of Burbank, Oh who is helping Sister Fuller with this Con Artist Kevin Bart McCarthy scares Sister Joseph Therese, Patricia Ann Fuller very much that McCarthy will try and hurt Patricia Ann Fuller and Paul Hartman of Burbank, Oh or any member of his family. Sister is very, very scared, (YES, I AM) This McCarthy guy is a real, real CON MAN and crook. I try to totall flatter Kevin Bart McCARTHY to keep him from hurting my best friends in this world which are Carolyn Rose and Paul Hartman. I Live in total fear of this man Kevin Bart McCarthy and try to praise him as a good man to keep us ALL from his bad deeds. This man could easy have some one cause us a very bad disability. You have to PRAISAE in order TO PROTECT yourself. He lies and makes up stories about people and then tries to steal if THEY OWN THRU THE COURTS A SPECIAL DEVOTION TO PROTECT, EX> Our Lady of America DEVOTION. EVERYONE who reads this, PLEASE BE CAREFUL of Kevin Bart McCarthy of Indianapolis, IN My Phone No. IS 419-435-3838.

  3. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

  4. I had a hospital and dcs caseworker falsify reports that my child was born with drugs in her system. I filed a complaint with the Indiana department of health....and they found that the hospital falsified drug screens in their investigation. Then I filed a complaint with human health services in Washington DC...dcs drug Testing is unregulated and is indicating false positives...they are currently being investigated by human health services. Then I located an attorney and signed contracts one month ago to sue dcs and Anderson community hospital. Once the suit is filed I am taking out a loan against the suit and paying a law firm to file a writ of mandamus challenging the courts jurisdiction to invoke chins case against me. I also forwarded evidence to a u.s. senator who contacted hhs to push an investigation faster. Once the lawsuit is filed local news stations will be running coverage on the situation. Easy day....people will be losing their jobs soon...and judge pancol...who has attempted to cover up what has happened will also be in trouble. The drug testing is a kids for cash and federal funding situation.

  5. (A)ll (C)riminals (L)ove (U)s is up to their old, "If it's honorable and pro-American, we're against it," nonsense. I'm not a big Pence fan but at least he's showing his patriotism which is something the left won't do.