[1997-05-29]
JAMES A. MEROLLA Journal-Bulletin Staff Writer. Providence Journal – Bulletin.
Copyright Providence Journal/Evening Bulletin May 29, 1997
A jury has awarded a Westerly woman nearly $3.6 million in damages, after deciding that Westerly Hospital was negligent in delivering her premature baby, who was born a quadriplegic in 1984.
Today, the daughter of Elizabeth Dowd "weighs 60 pounds. She cannot speak, except with her eyes. She’s diapered, and is fed by a tube," said David Morowitz, Dowd’s lawyer. The child, who lives at home, will be 13 on July 5.
The six-person jury awarded Dowd a judgment of $1.4 million plus interest of nearly $2.2 million, for a total judgment of almost $3.6 million after an eight-day Superior Court trial before Judge Frank Williams that ended Friday.
Westerly Hospital’s CEO, Michael K. Lally, referred all questions to the hospital’s lawyer, Dennis McCarten. McCarten argued during the trial that tests showed the child’s brain damage and other physical damage occurred before her mother was brought to the hospital for care and was compounded by the child’s prematurity.
"I am bewildered that the jury thought that what happened at Westerly Hospital would cause this damage. And disappointed," said McCarten. "She was very premature at the time – 27 weeks. In 1984, 27 weeks was the cusp of viability. They can save small babies today, but back in 1984 . . . "
Dowd filed the suit in 1986 against Westerly Hospital and Dr. Douglas A. Rayner, the obstetrician who was her physician during her pregnancy. Rayner settled with Dowd out of court for an undisclosed sum and did not stand trial. Rayner would not comment on the case when reached by phone yesterday.
Morowitz and McCarten said trial was delayed more than a decade for several unusual reasons, including the case being filed originally in Providence County, being mislabeled as a 1992 case in Washington County, and the fact that more than one witness had died and others had moved away.
McCarten says he will file a motion for a new trial within 10 days.
Dowd was about seven months pregnant when she was rushed to Westerly Hospital by police at about 5 a.m. on July 5, 1984, suffering extreme abdominal pain and vaginal bleeding.
Court documents said she had suffered a placental abruption – a dangerous condition where the placenta separates from the uterus prematurely and reduces the flow of blood and oxygen to the fetus.
Morowitz successfully argued that even though the hospital correctly decided to operate, doctors kept Dowd on a monitor for a total of 67 minutes and waited too long before performing an emergency Cesarean section to remove the fetus.
He also said that the hospital could never clearly answer why the surgery was delayed for about 20 critical minutes.
"The decision (to operate) should have been arrived at quicker and expedited quicker," said Morowitz. "The last 15 or 20 minutes of delay really caused the damage in this case, according to my expert." He argued that hypoxia, or lack of oxygen to the brain, was responsible for the damage.
McCarten denied these contentions and said the mother and child received expedient care. He and several doctors argued at trial that the damage to the child occurred prenatally at an unspecified point during the pregnancy; that tests taken that night after the baby was transferred to Yale Medical Center revealed that the child was somehow injured at least five days before she was born, and perhaps even three weeks earlier.
McCarten acknowledged, however, that the tests "couldn’t name the source of the prenatal damage. There was just speculation (as to the cause), but it was there. That was the most important evidence in the trial and the jury missed it or didn’t understand it."
He added that the baby was responding well until July 10 when a second picture taken of her brain showed heavy bleeding. "That’s why she is the way she is. It had nothing to do with Westerly Hospital," said McCarten.
The jury agreed unanimously, however, for Dowd, finding the hospital to be 80 percent guilty of negligence and Rayner 20 percent guilty of negligence. His undisclosed settlement will alleviate Westerly Hospital of 20 percent of the total judgment.
The judgment was broken down into the following damages:
- $225,000 for past health care costs
- $740,000 for future health care and maintenance costs
- $440,000 for pain and suffering
- $272,000 in loss of future economic wages
- $83,000 for loss of society and companionship
"I think this is the largest verdict in South County in a long time. It’s a lifesaver for her (Dowd)," said Morowitz. "But this case isn’t about money. This is not going to make anyone rich. There was testimony that there will be $3.7 million in future medical care."
"I’m extremely happy with the verdict," Dowd said. "I think justice was served.
"My child can have a fulfilling life, something she deserved all along."
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