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Appeals court upholds $3.6M medical malpractice verdict

An appeals court has upheld a $3.6 million verdict for a 9-year-old boy who suffered brain damage because doctors were too slow to perform a Caesarean section when his mother suffered complications 26 weeks into her pregnancy.

The Court of Special Appeals rejected the hospital’s argument that it should be absolved of liability because it had saved the baby’s life by stopping his mother’s preterm labor and putting her on bed rest three weeks earlier.

The jury, having found the University of Maryland Medical System Corp. negligent on the day of Darryl Gholston Jr.’s birth, was free to disregard its earlier life-saving care, the appellate court held.

“It is often the situation in medical malpractice cases … that the reason the patient comes under the care of a health care provider is because the patient is suffering a serious, if not life-threatening, condition or illness; and that the health care provider is successful in much of the treatment rendered, even to the point of saving the patient’s life,” Judge Deborah S. Eyler wrote for the 3-0 court Friday.

“Nevertheless, if within the course of treatment, even life-saving treatment, the health care provider commits a breach in the standard of care that is the cause in fact of an injury to the patient, the health care provider will be liable in damages for negligence,” the court held.

Darryl’s appellate attorney, Andrew H. Baida, praised the court’s decision as affirming the principle that a heroic act does not protect the hero from liability for his or her subsequent negligence.

“The jury probably appreciated what the university did … in getting the mom another three weeks,” said Baida, of Rosenberg|Martin|Greenberg LLP in Baltimore. “But it was also of the view that it [UMMS] failed to comply with the standard of care at the 26-week mark.”

The system’s appellate counsel, Scott R. Haiber, referred all questions to UMMS. Haiber is with Hogan Lovells in Baltimore.

“We are deeply disappointed in the court’s decision, and will be taking the unusual step of considering an appeal to the Maryland Court of Appeals due to the circumstances in this case,” UMMS spokeswoman Mary Lynn Carver said in an email.

“As the court noted in its opinion, this was a child who almost certainly would have died if the University of Maryland Medical Center had not managed to successfully extend the mother’s pregnancy from 23 to 26 weeks,” Carver added. “Despite saving the child’s life, we now find ourselves saddled with a multimillion-dollar judgment for a child who by all accounts has not suffered cognitive injuries and is performing well in school.”

Competing testimony

The appeals court also rejected the hospital’s claim that the boy’s premature birth, rather than the delayed C-section, caused his learning disabilities. The testimony on that point presented a “classic battle of the experts,” Eyler wrote.

Carver, though, warned that if courts don’t “begin to look more critically” at plaintiffs’ evidence in medical malpractice cases, “medical providers will find themselves being sued for outcomes that are medically expected, but with which patients are not 100 percent satisfied,” and that it will drive up the cost of health care for everyone.

Darryl’s mother, Nicole Player, alleged that doctors negligently waited 40 minutes to deliver her boy after noticing the umbilical cord had dropped below his body. The potentially life-threatening position known as acute cord prolapse can interfere with the flow of blood and oxygen to the baby.

By the time Darryl was delivered at 11:42 p.m. on Sept. 19, 2002, he had suffered brain damage from oxygen deprivation, according to the suit.

Darryl’s developmental delays have included not learning to walk until age 3½, and only with the use of braces; and not speaking in full sentences until age 4½, according to his mother. At age 9, he is in second grade and has a classroom aide, according to the Court of Special Appeals’ opinion.

At trial, the hospital countered that Darryl’s brain damage did not result from negligence but as a consequence of having been born three months prematurely and weighing less than 2 pounds. UMMS also said its doctors had appropriately ordered the mother to bed rest three weeks earlier when a sonogram had shown signs of a weakened cervix.

After a six-day trial of dueling medical testimony, a Baltimore jury found UMMS liable for medical malpractice and awarded Darryl $4.1 million in damages in November 2010. The award was reduced to $3.6 million due to Maryland’s statutory cap on non-economic damages.

On appeal, UMMS argued that the jury could not have found the system liable because the hospital had saved Darryl’s life by extending the pregnancy from 23 to 26 weeks; his disability was typical of a child born so prematurely and weighing less than two pounds; and he had received excellent newborn pediatric care.

But the Court of Special Appeals said the jury had evidence to the contrary, and was free to reject the hospital’s explanations and accept that of the plaintiffs.

“[It] was for the jury to decide, based on the conflicting expert witness evidence presented at trial, whether Darryl’s deficits were caused by negligent delay in delivering him or by the mere fact of prematurity and associated low birth weight…,” Eyler wrote. “Whether other reasonable jurors could have reached the contrary decision, or whether any of the members of this panel of judges would reach a contrary decision is irrelevant. The question was for the jury to decide and it did.”



University of Maryland Medical System Corp. v. Gholston, CSA Nos. 2505. Sept. Term 2010. Reported. Opinion by Eyler, D., J. Argued Jan. 10, 2012. Filed Feb. 10, 2012.


Can a jury find medical-malpractice liability at delivery when the baby would have died but for the hospital’s treatment of the mother three weeks earlier?


Yes; a hospital can be found liable for breaching the standard of care regardless of its previous excellent treatment.


Scott R. Haiber for appellant; Andrew H. Baida for appellee.

RecordFax # 12-0210-00 (22 pages)