This medical malpractice case was settled prior to jury selection against the individual obstetricians, Mastrota, Herzog and Greenberg for the sum of $1,450,000, which was divided equally between the two infant plaintiffs. The individual pediatric defendants, Drs. Slepowitz and Inguagiato were released contemporaneously with this settlement. After jury selection, opening statements, and the testimony of Dr. Slepowitz, the case was settled against defendant North Shore Hospital for an additional $500,000, again divided equally between the two infant plaintiffs.

This case involved a twenty-four year old woman who received prenatal care from defendant obstetricians. She delivered fraternal twins at thirty-two weeks gestation by cesarean section on December 22, 1982. Twin A, Jonathan, weighed three pounds thirteen ounces and had Apgar scores of five at one minute and seven at five minutes. Twin B, Jessica, weight three pounds, seven and a half ounces and had Apgars of seven at one minute and nine at five minutes. The mother had been admitted to the North Shore University Hospital on December 8, 1982, with a diagnosis of pre-term labor and placed on intravenous ritodrin. Labor was successfully suppressed with intravenous ritodrin and on December 9 the patient was changed to oral ritodrin. On December 17, the patient mother broke out in a rash over the entire body, which rash was determined to be an allergic reaction to the oral ritodrin. Oral ritodrin was discontinued and bed rest maintained. On December 19, 1982, the rash was much improved but the patient went back into labor.

An attempt to suppress the labor using magnesium sulfate was made by the attending obstetricians to delivery by cesarean section "in view of small pre-term babies and probable traumatic delivery." Delivery was cesarean section at 5:05 P.M. on December 22, 1982. The plaintiffs alleged failure to prevent premature birth by not administering ritodrin after the rash cleared and failure to diagnose and treat pneumothorax in both newborns. The newborn course for Twin A, Jonathan, was significant for arterial blood gases indicative of acidosis, which acidosis was not corrected until the child was intubated at 6:50 P.M. on December 22. Thereafter, there was a delay in diagnosing a pneumothorax.

Fitzgerald & Fitzgerald contended the pneumothorax should have been diagnosed earlier based on the infant's increasing oxygen requirements, which requirements did not result in any corresponding increase in the oxygen content of the blood as evidenced by arterial blood gas analysis. As regards Twin B, Jessica, again, arterial blood gas anlysis showed acidosis (albeit milder than Twin A, Jonathan) which was not corrected until the infant was placed on an oxyhood at 6:30 P.M. Thereafter, there was a delay in the diagnosis of pneumothorax where again, ascending oxygen requirements from the ventilator were not resulting in corresponding increases in the oxygen level in the blood.