Jury Awards $26.5m in Medical Suit...

Jury awards $26.5m in suit
Brockton boy born with brain damage

By Jonathan Saltzman, Globe Staff | October 13, 2007

A Brockton boy who was born with severe brain damage at Brigham and Women's Hospital has been awarded $26.5 million by a Suffolk County jury who saw the nearly blind 10-year-old child wheeled into the courtroom with a feeding tube in his stomach.

The award to Jose E. Bejarano Jr. and his family late Thursday was the biggest in a medical malpractice case in Massachusetts this year and among the largest in state history, David L. Yas, publisher of Massachusetts Lawyers Weekly, said yesterday.

The family's lawyers had argued that two residents at the hospital, Julie D. Miner and Alisa B. Goldberg, should have delivered Bejarano by caesarean section on March 13, 1997, when it became obvious that he and his mother were in distress. Instead, they let labor go for eight hours before other doctors delivered the baby with forceps.

"They allowed it to go on way too long," said Florence A. Carey, one of the lawyers. "He was not getting the oxygen he needed because her blood pressure soared."

The boy now has the mental capacity of a 9-month-old, Carey said.

Edward T. Hinchey, who defended the physicians, countered that the baby was born with severe cerebral palsy and other permanent defects because of injuries suffered earlier in the pregnancy for unknown reasons.

The mother was "under constant monitoring while in the hospital, and we can say definitively it didn't occur then," said Hinchey, who vowed to appeal.

Brigham, which still employs the doctors, said it was "shocked and saddened" by the verdict delivered after 2 1/2 days of deliberations.

"Despite the talents and skills of our medical teams, events can arise during a pregnancy, and, tragically, not all outcomes are perfect," the hospital said in a statement. Brigham acknowledged the pain of the Bejaranos but insisted that "the actions of our physicians were appropriate and consistent with our high-quality practice."

At issue were what Miner and Goldberg did after Maria Bejarano was admitted to the hospital at 3:30 p.m. on March 12, 1997. At the time, Miner was a fourth-year resident, Goldberg a third-year resident, Carey said.

Dr. Adnan M. Ashour oversaw the team, but he was not a defendant because he has moved to Saudi Arabia and could not be served with the suit.

Bejarano, who was 32 at the time, had a history of chronic hypertension that worsened during the pregnancy, Carey said. She had received prenatal care at Brigham's "Special OB" clinic.

Shortly after she was admitted, medical staff began giving her the drug pitocin to cause contractions for a vaginal delivery. A few hours later, the baby's heart rate began to fluctuate, plunging at one point to 60 beats a minute, roughly half the normal rate, Carey said.

The combination of the baby's falling heart rate and the mother's soaring blood pressure deprived him of oxygen, Carey said. Given that Bejarano had had a caesarean section in an earlier pregnancy, "I don't know why they didn't do one" this time, said Carey.

Hinchey, the lawyer for the obstetrician-gynecologists, said that both are top-notch physicians who did nothing wrong and that the brain damage happened before labor.

"It's a classic case of cerebral palsy, where oftentimes the exact etiology isn't understood," he said.

A dramatic moment in the trial came when the boy's father, Jose E. Bejarano Sr., a truck driver, led his son in a wheelchair before jurors, Carey said. The father pointed out the boy's feeding tube and explained how he responds to sound and affection. "The family felt strongly that they wanted [jurors] to meet him," Carey said.

The jury rejected a claim that a nurse, Jacqueline L. Duggan, was negligent.

Boston Globe