Facts

Dr. Wilburn Durousseau was on-call in Labor and Delivery at St. Francis Medical Center when Vivian Arencibia arrived shortly after Noon on September 19, 2016. An ultrasound soon thereafter showed that the baby was breech presentation with a gestational age of 23 5/7 weeks. Over the next few hours, Dr. Durousseau discussed with Vivian Arencibia that survival of the baby was likely less than 50% and that, if the baby survived, there was a probability of about 75% that the baby would have significant disability. They discussed cesarean section, and Vivian Arencibia eventually elected vaginal delivery.

Within 2 minutes of the time Vivian Arencibia's membranes ruptured, Dr. Durousseau was able to deliver the baby at 4:28 p.m. without traction on the baby's head. The baby had no spontaneous respirations and had fused eyelids. Dr. Durousseau cradled the baby in his left hand/arm while using his right hand to clamp and incise the umbilical cord. During this process, the placenta spontaneously delivered, which added an unexpected weight to the baby and, due to the short umbilical cord, pulled the baby from the cradling position toward the floor, his head striking a wheel lock on a table prior to reaching the floor.

The baby, cord and placenta were quickly carried to the awaiting neonatal resuscitation team, where the neonatal resuscitation team undertook resuscitation efforts, prior to transfer to the NICU. Dr. Durousseau noted placental abruption of 50%.

There was a small 2 cm. x 2 cm. laceration on the scalp of the newborn, but no bleeding. The laceration was treated with compression gauze and held in place with a steri-strip. The neonatologist described the laceration as superficial. The APGARS were 1, 4 and 5. The baby was 670 grams (1 pound, 8 ounces) and was resuscitated.

The baby's condition deteriorated with the parents agreeing to a DNR order at 10:30 p.m., then taking the baby off the ventilator at 12:10 a.m., then expiring at 12:24 a.m. The neonatologist attributed the death to extreme prematurity, respiratory distress syndrome and presumed sepsis.

PLAINTIFFS' CONTENTIONS: Plaintiffs alleged that Dr. Durousseau breached the standard of care by "dropping" the baby after delivery and that, but for the fall and the baby's head striking the wheel lock, the baby would have survived.

DEFENDANT'S CONTENTIONS: Dr. Durousseau contended that his technique in cradling the premature baby in his left hand/arm was appropriate and consistent with his more than 50 years of experience, including more than 40,000 deliveries. Dr. Durousseau also contended that it was the precipitous, explosive ejection of the placenta, with the short umbilical cord, that caused the baby to be pulled from his gentle grasp to the floor, striking the wheel lock. Dr. Durousseau further contended that his care did not cause the baby's death. Rather, the baby was not viable at 24 weeks with significant comorbidities in addition to his extreme prematurity, and that it was this that resulted in the baby's demise.

Insurer

Coverys/Preferred Professional Insurance Company

Settlement Discussions

Defendant offered $10,001.00 to plaintiff Manuel Gutierrez and $15,001.00 to Vivian Arencibia each side to bear costs, fees and expenses, per Code of Civil Procedure §998 in September of 2020. Plaintiff Manuel Gutierrez offered to compromise for $187,499.99 pursuant to Code of Civil Procedure §998 on March 15, 2022. Plaintiff Vivian Arencibia offered to compromise for $249,999.99 pursuant to Code of Civil Procedure §998 on April 27, 2018. There were no negotiations otherwise.

Specials in Evidence

Plaintiffs' claimed economic damages were future psychiatric treatment, claimed to be $250,000.00 according to their psychiatric expert.

Damages

Plaintiffs claimed general damages of $250,000.00 for the wrongful death cause of action and each plaintiff separately claimed $250,000.00 for negligent infliction of emotional distress.

Result

10-2 defense verdict.

Deliberation

65 minutes.

Poll

10-2

Length

10 jury days