• Spastic diplegia
• Mental retardation

Plaintiff, age 11 at the time of trial, has an IQ of 50 and the mentality of a 5 year old. Plaintiff's economist testified about the extensive cost of the future home medical care that the child will require.

Plaintiff's mother, who was 28-30 weeks pregnant by dates and 26 ½ weeks pregnant by sonogram, presented to defendant hospital, Lincoln Hospital, suffering from vaginal bleeding and pain. The sonogram also indicated a low-lying placenta and breech presentation. Her prior obstetrical history included four abortions and a Caesarean section due to placenta previa in the birth of a healthy child at 28 weeks gestation.

Plaintiff's mother was admitted to the hospital and continued to bleed erratically for the next 3 days. She began to bleed heavily and was seen by a second-year resident who transferred her to the labor ward and notified the chief resident. The infant plaintiff was delivered vaginally at 7:54 AM from a single footling breech presentation. A 40% abruptio placenta was noted. The child's Apgar scores were 1 and 4. He remained on a ventilator for 51 days and upon his discharge at 5 ½ months showed signs of some neurological deficits.

Fitzgerald & Fitzgerald's expert testified that the failure of the chief resident and the attending physician to be present in the delivery room until just moments before delivery was a departure from accepted medical practice. He further testified that plaintiff's mother should have been examined under a double set-up between 5:30 and 6 AM, and he contended that if such an exam had been performed, placenta previa could have been ruled out and a differential diagnosis of abruptio placenta could have been made. Fitzgerald & Fitzgerald's expert also testified that the single footling breech would have been diagnosed and the child could have been delivered by Caesarean section if the exam had been performed. Fetal heart monitoring tapes were missing at the time of trial, but Fitzgerald & Fitzgerald's expert contended that the reference to late and variable decelerations of the heart rate referred to in the delivery note probably occurred just prior to delivery. Fitzgerald & Fitzgerald's expert testified that the late decelerations were secondary to placental insufficiency caused by the abruptio placenta, and that the variable decelerations were caused by cord compromise, which occurred because of the single footling breech presentation.

Lincoln Hospital contended that they intentionally delayed the delivery to allow the pregnancy to continue beyond 27 weeks. Lincoln Hospital's expert testified that the fetus had a low probability of survival and that management of the delivery, even after the 27th week, would have been no different. Lincoln Hospital's neonataologist testified that plaintiff's condition was due solely to prematurity. On cross-examination by John Fitzgerald, however, Lincoln Hospital's expert testified that perinatal asphyxia, superimposed on the prematurity, caused the spastic diplegia.

Fitzgerald & Fitzgerald 's pediatric neurologist testified that plaintiff was depressed and acidotic at birth, as evidenced by the need for sodium bicarbonate. He further testified that if plaintiff had been delivered an hour earlier, the hypoxic insult (birth asphyxia) would not have been as serious and the child probably would not have suffered any neurological deficits.

The jury specifically found that Lincoln Hospital committed malpractice by failing to perform a Cesarean section at least 1 hour before the actual delivery was performed. The jury also found this departure to be the proximate cause of plaintiff's injuries.