• Severe brain damage, resulting in spastic quadriplegia
• Blindness

Plaintiff, age 15 at trial, was unable to walk and required assistance in all aspects of daily living. He lived with his mother and two brothers.

At noon on 7/13/78, plaintiff's mother, who was in her 31st week of pregnancy, presented to her obstetrician, Dr. Carlos Mendez (33 1/3% liable), with complaints of abdominal pain and light bleeding. The pain and bleeding had stopped by the time of her visit, and Dr. Mendez told her to go to Union Hospital (33 1/3% liable) if it started again. Union Hospital, at which Dr. Mendez had privileges, was a level II hospital with no neonatal intensive care unit. Plaintiff's mother began experiencing pain and bleeding again that night and she was taken to Union Hospital at about 11 PM. Plaintiff's mother told the receptionist that she was experiencing contractions and asked for Dr. Mendez. She was told to wait because Dr. Mendez was with a patient. Plaintiff's mother claimed that she was finally examined by Dr. Mendez at 2 AM and he told her that she must be transferred to Jacobi Hospital (33 1/3% liable) because she was going to deliver prematurely. Plaintiff's mother testified that she was taken downstairs at 2:30 AM, but an EMS ambulance was not called until 4:39 AM. She arrived at Jacobi Hospital at 4:52 AM.

Union Hospital contended that it did not have any records that indicated that plaintiff's mother was ever a patient there. It also argued that plaintiff's mother was not transferred to Jacobi Hospital but was referred by Dr. Mendez. At the time of trial Dr. Mendez was retired and living in Arizona and he did not have his records. There was a transfer note written by Dr. Mendez in Jacobi Hospital's record that indicated that at the time of her transfer, Pltf. was 31 weeks pregnant, 6 cm dilated, and 80% effaced, with a questionable vertex presentation. The note also indicated that the transfer was made after someone at Union Hospital and contacted the chief obstetrician-gynecologist resident at Jacobi.

Plaintiff's mother was examined in Jacobi's emergency room and was found to be fully effaced with a suspected breech presentation. The fetal heart rate was 136. Plaintiff's mother was not taken to the labor and delivery floor until 5:20 AM. An X-ray taken at that time indicated a transverse lie and an emergency Cesarean section was ordered. Plaintiff's mother contended that although external electronic monitoring was ordered, it was not performed and the fetal heart rate was not checked again. The Cesarean was performed at 6:40 AM. The infant had Apgar scores of 1 at 1 minute, 1 at 5 minutes, and 7 at 10 minutes. He required resuscitation with intubation and sodium bicarbonate.

Fitzgerald & Fitzgerald successfully argued:

• that Union Hospital departed from proper medical procedure by failing to refer plaintiff's mother to an emergency room or the obstetrical area when Dr. Mendez was not immediately available to examined her
• that Union was negligent for failing to admit her and for failing to maintain records or arrange for a prompt transfer to Jacobi Hospital
• that Jacobi was negligent for failing to perform an emergency Cesarean before 5:45 AM
• that this failure resulted in hypoxia and fetal distress secondary to cord compression
• that if electronic monitoring had been performed as ordered, the fetal heart rate strips would have revealed fetal distress

The jury specifically found that hypoxia and fetal distress occurred in utero within 45 minutes before the birth and that this was a proximate cause of the child's injuries. They found that Union Hospital was negligent for failing to refer Pltf. to the emergency room or the obstetrical area when Dr. Mendez was not immediately available and for failing to promptly transfer Pltf. after she was examined by Dr. Mendez. They also found that Dr. Mendez was negligent for failing to order bed rest when he examined Pltf. on 7/13, but found that this departure was not a proximate cause of the infant's injuries. The jury found that Dr. Mendez was negligent for failing to ensure that Pltf. was promptly seen and transferred. They also found that Jacobi Hospital departed from accepted medical practice for failing to perform a Cesarean section before 5:45 AM.