Alabama jury sides with Georgia lawyer in birth injury case (The Daily Report written by: Greg Land)

Following an eight-day trial, an Alabama jury found no liability on the part of a hospital and its obstetrical nurses for birth-related injuries that left a baby with permanent brain damage, turning aside plaintiffs' assertions that hospital staffers had failed to properly monitor the unborn infant's heart rate and denying their request for $10 million in
damages.

Hall Booth Smith partner John E. Hall Jr. said the panel deliberated for about an hour and a half before finding for his clients, Baptist Health System Inc., and several related entities, despite a last-minute deal in which the doctor who delivered the baby was dropped from the case in exchange for a testimony that obliquely blamed the
nurses.

"The plaintiffs had dismissed the physician the Friday before trial in exchange for an affidavit outlining his care," said Hall, explaining that Alabama law does not allow a physician to testify about the standard of care for nurses.

"He did not directly criticize the nurses," Hall said, "but there were inferences of criticism in his affidavit."

The case began when Tanya Higdon was admitted to DeKalb Regional Medical Center in Fort Payne, Ala., on Sept. 28, 2004, for treatment of "pregnancy induced hypertension," according to the complaint in the case. The following day, Higdon was given a "prolonged high dose of Pitocin," a labor-inducing drug that has been linked, when used in excess, with uterine hyperstimulation, a condition in which uteral contractions last too long, or do not allow the uterus to relax enough between contractions. The condition can lead to a reduction in oxygen-containing blood to an unborn child.

Higdon's attorneys claimed her care was lacking in multiple areas. Dr. Steven Joe Coulter and the nursing staff, they said, were negligent in continuing to administer Pitocin in the hours prior to the delivery. They also said the doctor and a nurse had confused "Doppler" readings from a heart rate monitor on the mother with those of the fetal heart rate
monitor.

As a result, "the fetal heart monitor was incorrectly monitoring the mother's heart rate instead of the baby's heart," according to an amended complaint.

Higdon's lawyers also took issue with the actions of two nurses who, about two hours before delivery, "attempted to push the baby" out before Higdon's cervix was fully dilated.

At about 7:30 a.m. on Sept. 30, Summer Rayne Higdon was born "with severe catastrophic and irreversible brain damage which continues to this date," according to a complaint filed in October 2006 in the Circuit Court of DeKalb County, Ala., by Birmingham attorney Lanny S. Vines on behalf of the mother and daughter.

The original complaint alleged negligence, failure to meet the standard of care and negligent training of the nursing staff, and listed seven named defendants including Baptist Health System Inc., Community Health System Inc., DeKalb Baptist Medical Center and Coulter, as well as 10 fictitious defendants.

Hall said a mediation effort conducted in the law offices of the defense's local attorney, B. Clark Carpenter Jr. of Talladega's Wooten, Thornton, Carpenter, O'Brien, Lazenby & Lawrence, failed to produce any results.

"We offered $250,000 or $500,000 prior to trial," Hall said, while the plaintiffs' demanded $6 million to settle the case.

Trial began Aug. 15 before DeKalb County Circuit Court Judge Randall L. Cole; originally slated for three weeks, the doctor's dismissal as a defendant cut it down to less than two, said Hall, whose team included a partner from Hall Booth's Charleston, S.C., office, Jack G. Gresh, and Carpenter.

At trial, the issue of whether the mother's heart rate was mistaken for the baby's was dispatched fairly quickly, he said.

"They contended that the fetal heart monitor was picking up the mother's heartbeat," said Hall. "We were able to prove that the baby's monitor strip continued to record once the baby's head appeared; had that been the maternal heartbeat, it would have discontinued once the baby was born."

The main thrust of the plaintiffs' case, he said, concerned the allegations of hyperstimulation.

"They contended that we should have reduced the amount of Pitocin because of the danger of hyperstimulation," Hall said. "Our contention was that there was no need to reduce it to any particular
level."

Hall said that key plaintiffs' experts included Michelle Murray, a registered nurse, clinical professor and author specializing in the field of fetal monitoring; and Barry Schifrin, an OB/GYN professor and author who has taught at Harvard Medical School and practiced at several California hospitals.

The defense countered with James N. Martin Jr., professor of OB/GYN at the University of Mississippi and the president of the American Congress of Obstetricians and Gynecologists; and Judith H. Poole, a nurse-manager at Presbyterian Hospital in Charlotte, N.C., and past president of the Association of Women's Health, Obstetric and Neonatal Nurses.

Just before trial, Hall said, the plaintiffs changed their strategy to bolster their request for $10 million in damages.

"That was one unique thing about this case," said Hall. "The plaintiffs had prepared a very extensive life care plan to present, and we had obtained experts to challenge the accuracy and extent of it. As a result, the plaintiffs chose, one week before trial, to go solely on non-special damages: How [Summer Higdon] would never walk, talk, go to school. … It was probably a good strategy, given how their plan had been undermined."

It may have been a good strategy, but it was not a winning one. On Aug. 24, the panel—10 women and two men, a working-class, mixed-race group that was mostly middle-aged or older—returned with a defense verdict.

Hall said post-verdict conversation with the panelists didn't reveal any particularly compelling single piece of evidence or testimony that swayed their decision.

"Most agreed with us that on the hyperstimulation issue," he said. "One or two had concerns on that, but they were convinced that that had not caused the injury."

As to experts, "the jurors didn't get that specific," he said. "I don't think they liked Michelle Murray as much as they liked ours. She had not been practicing full time for a number of years; she's a national writer in this area, but I think her limited hands-on experience in this area didn't impress them."

Defense attorney Vines did not respond to email or telephone requests for comment, but Hall said he thinks an appeal or other challenge to the trial's outcome is likely.

Hall spoke to the Daily Report from his firm's newest office in Tbilisi, the Republic of Georgia, which opened earlier this year. He had originally been set to be in court for another malpractice trial to begin

Sept. 6 in Virginia, which settled last week. Hall would have been defending two obstetricians accused of malpractice stemming from the deaths of twins, who died two days after delivery from twin-to-twin transfusion syndrome. Hall declined to name the parties, citing the conditions of the settlement, but he said the plaintiffs had initially sought $4.5
million.

"The damages were capped at $1.9 million per twin in Virginia," Hall said. "Leading into the week before trial, the plaintiffs were demanding $2.2 million, then everything started to come down: It went to $750,000, then $250,000—we settled for $100,000."

The Alabama case is Higdon v. Baptist Health System Inc., No. CV06-900006.