Defense Verdict in Brooklyn Brain Damaged Baby Case
On August 2, 2023, Louis Jakub obtained a unanimous defense verdict on behalf of a maternal fetal medicine specialist who plaintiff claimed failed to properly interpret fetal heart tracings, failed to perform a biophysical profile and other testing, and failed to recommend or timely perform a cesarean section.
In August 2012, the plaintiff-mother presented to Brooklyn Hospital with complaints of decreased fetal movement. She was 28 weeks pregnant and was admitted for continuous fetal monitoring and observation. Plaintiff claimed that Mr. Jakub’s client negligently performed a maternal fetal medicine consultation based on his alleged failure to perform a biophysical profile, umbilical artery doppler testing and by not recommending a cesarean section based on non-reassuring fetal heart tracings. Plaintiff’s expert, a maternal fetal medicine expert from Philadelphia, testified that Mr. Jakub’s client ignored “ominous findings” on the fetal heart tracings based upon minimal and absent variability and the lack of fetal heart accelerations. The expert testified the fetus experienced prolonged hypoxia which ultimately led to an acute hypoxic event the following morning which resulted in the infant being delivered emergently but profoundly brain damaged evidenced by an initial Apgar score of 1.
The plaintiff-mother testified that her attending obstetrician had planned a cesarean section shortly after admission, but that plan was changed after the MFM consultation by Mr. Jakub’s client. Mr. Jakub was able to effectively refute that position by confronting the plaintiff-mother with her prior deposition testimony which contradicted her courtroom testimony. Her lack of recollection regarding all other events during the subject admission was underscored during Mr. Jakub’s cross examination of the plaintiff to impair her credibility. Similarly, Mr. Jakub effectively impeached the plaintiff’s maternal fetal medicine expert by utilizing the expert’s prior testimony which was at odds with the testimony given in this case.
Mr. Jakub’s client maintained that there was no indication to perform a cesarean section given the extreme prematurity (28-week gestational age) and risks associated with delivering a premature infant. Mr. Jakub’s client testified that the fetal heart tracings were normal for a premature infant and that the management of decreased fetal movement was proper. Mr. Jakub’s expert testified that the acute hypoxic event which occurred the following morning which led to the profound brain damage was caused by a clot in the umbilical cord which was identified following delivery during pathological examination of the placenta and umbilical cord (Supreme Court, Kings County, Index No. 3208/2013).
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