POLLARD v. HELM HELM PC, No. CV03 0475872S (Jan. 2, 2009)

ANGELA C. ROBINSON, J.

Avery Pollard is a delightful, intelligent, inquisitive, slightly shy first grader. He just celebrated his seventh birthday three days ago, on December 30th. He attends public school and lives in a loving and nurturing home with attentive parents, Susan and John Jay Pollard, and a younger brother. Avery is right handed. His left arm and hand are a noticeably smaller, shorter and less well-developed than his right.

During his birth, Avery suffered a shoulder dystocia. After birth he could not move or use his left arm and his parents initially pinned it to his shirts. After a couple of months, with the encouragement of his grandmother, his parents took him for further evaluation and discovered that he suffered extensive nerve damage in his left brachial plexus. Testing determined that all five root nerves in his left brachial plexus were injured: two were ruptured and two or three were avulsed. Avery underwent two surgical procedures, one a nerve graft procedure and another a tendon transfer procedure, to try to improve his condition. His parents are considering an additional surgical procedure. Each of Avery's previous surgical procedures involved pain for Avery and a long, complicated and challenging recuperation process.

Avery is now doing remarkably well, given his objective physical limitations. It is a testament to his parents, his family, his care providers, his doctors, and his character that this court deems Avery's future to be a bright one, despite its challenges.

The plaintiffs claim that Avery's medical condition, problems and challenges were proximately caused by the negligence of the defendants. The plaintiffs also claim that Susan Pollard suffered extreme emotional distress as a result of the negligence of the defendants. For reasons more fully articulated in this decision, this court finds that the plaintiffs have proven their claims of medical negligence against defendant Joseph Peccerillo, MD and Helm and Helm, PC (under the theory of respondeat superior). CT Page 778

Avery's mother, Susan Pollard, went to Helm and Helm for prenatal care after she discovered that she was pregnant with Avery, her first child, in 2001. The primary physician with whom she interacted was Dr. James Fanning. She bonded with him, and hoped that he would deliver her child. Dr. Fanning shared this hope. When Susan went past her due date of December 22, 2001, an appointment was made to induce labor on December 31, 2001. But, on the day before, December 30, 2001, Susan Pollard went into spontaneous labor.

When she went into spontaneous labor, Mrs. Pollard went to MidState Medical Center with her husband and was met, not by Dr. Fanning, but his partner Dr. Peccerillo. In the delivery room, Avery's head was delivered with the cord wrapped around his neck one time, and then his chin retracted, indicating a shoulder dystocia. Maternal expulsion forces were halted. Dr. Peccerillo was unable to delivery Avery's anterior shoulder. Dr. Peccerillo testified that he performed "the standard manipulations" to free the shoulder, including downward pressure, which he described as "gentle." He was unable to free the shoulder with downward pressure. He was also not able to free the shoulder by rotating the baby posteriorally. Finally, Dr. Peccerillo was able to deliver the posterior shoulder, apply more downward traction and then deliver the anterior shoulder. The amount of time to deliver Avery's anterior shoulder was less than one minute, according to Dr. Peccerillo's testimony.

During her consultations with Dr. Fanning, Susan Pollard had expressed concerns about having a "big baby" because "big babies" ran in her family. In November 2001, Dr. Fanning wrote in his chart that he suspected Susan Pollard's baby might, in fact, be macrosomic. The ultrasound that was subsequently performed on December 5, 2001, did not confirm this suspicion. According to the December 2001 ultrasound, the baby weighed 3,119 grams, with a margin of error of 678 grams. The only documented risk factors for a macrosomic baby which Dr. Fanning identified were the maternal weight, which was over 237 pounds, and excessive weight gain by the mother.

Dr. Fanning defines macrosomic as a baby weighing more than 4000 grams (approximately 8 lbs 14 oz). However, he acknowledged that some physicians consider a macrosomic baby one which weighs more than 4500 grams (approximately 10 lbs 8 oz).

Dr. Fanning testified that the margin of error is plus or minus three weeks; and that a fetus grows approximately 226 grams (8 ounces) per week.

When Avery Pollard was born at 10 pounds and 8 ounces or 4,765 grams, he was, in fact, macrosomic, as Dr. Fanning had suspected he might be. After Avery was born, his parents were told that he had suffered an injury to his left shoulder and that his functioning should return in a few weeks. Avery went home with his parents after a couple of days in the hospital, but his left arm never became fully functional or fully developed.

CT Page 779 There were several medical experts who testified during the trial regarding the standard of care, causation and damages including Dr. Roland Cwik and Dr. Daniel Adler, retained by the plaintiffs and Dr. Robert Dropkin and Dr. Paul Chervin, retained by the defendants. Additionally, the defendants' agents James Fanning, MD, and Marlene Waradzin, MD, and named defendant, Joseph Peccerrillo testified, as did plaintiff Susan Pollard. Finally, the plaintiffs offered the testimony of economist, Edmund Provder, and accountant, Richard Royston.

The plaintiffs' complaint alleges negligence against the defendants in six counts. The First Count is brought on behalf of Avery Pollard against Helm and Helm alleging, inter alia, that it was negligent: in failing to repeat the December 2001 ultrasound; in failing to properly identify the risks of shoulder dystocia; in failing to have an adequate back up plan; and in failing to advise Susan Pollard of the increased risk of shoulder dystocia. The Second Count, also brought on behalf of Avery Pollard, alleges that defendant Peccerillo's negligence in inadequately managing the delivery of Avery proximately caused Avery's injuries. In the Third Count, brought on behalf of Avery Pollard, the plaintiffs allege that Helm and Helm is responsible for the negligent acts of defendant Peccerillo under the theory of respondeat superior. The Fourth, Fifth and Sixth Counts assert claims of emotional distress by Susan Pollard against Helm and Helm and Peccerillo.

During the trial, the plaintiffs offered evidence about the December 2001 ultrasound, and whether or not the defendants should have anticipated, planned better for, or informed the mother that Avery would be or likely would be a macrosomic baby. While this court finds that there is no dispute that Avery was macrosomic when he was born, and probably when the December 2001 ultrasound was performed, the predelivery information available to the defendants failed to establish this. Although macrosomia could not be excluded as a possibility, based upon the margin of error rate for the ultra sound, and defendant Peccerillo acknowledged that he was aware of the December 2001 ultrasound results, these undisputed facts do not establish that the defendants deviated from the standard of care in their treatment of Susan Pollard prior to December 30, 2001. Had the defendants been more pro-active regarding Dr. Fanning's suspicions and observations, Susan Pollard might have been spared the vaginal delivery which ultimately resulted in the injuries to her son. But, this is speculative, at best. And, medical malpractice can not be established by hindsight or speculation.

The likelihood that Avery was macrosomic on December 5, 2001, is based upon Dr. Fanning's personal definition of macrosomia.

More critical to resolving the dispute between the parties was the issue of whether or not the plaintiffs had established both the requisite standard of care regarding the force applied by defendant Peccerillo CT Page 780 during the delivery; and whether or not the plaintiffs established that he deviated therefrom. The plaintiffs claim that Dr. Peccerillo exerted excessive pressure which caused the nerves in the brachial plexus to avulse and/or rupture. The plaintiffs' expert, Dr. Roland Cwik, testified that Dr. Peccerillo deviated from the standard of care in exerting too much pressure when he attempted to deliver Avery's head and shoulder. During cross-examination, Dr. Cwik conceded that there was no way to quantify exactly how much pressure or force was used. However, he opined that it was a deviation of the standard of care to exert such force as would cause multiple nerve ruptures and avulsions. The defendants' expert, Dr. Robert Dropkin, similarly testified that it would be a deviation from the standard of care to exert such pressure as exceeds "gentle maneuver."

While all experts agreed that there was no way to quantify pressure exerted by the defendant during the delivery and that brachial plexus nerve injury can occur absent a deviation from the standard of care, the experts disagreed as to whether or not the particular injuries in this case (multiple nerve root avulsions and tears) can be caused absent a deviation from the standard of care. Dr. Peccerillo acknowledged that pressure can cause a brachial plexus injury, but denied that he exerted more than "gentle pressure" in delivering Avery Pollard. His denial presents an issue of fact for the trier of fact to either accept or reject.

Based upon the evidence submitted during the trial the court finds that:

1. Avery Pollard suffered a severe brachial plexus injury, involving multiple nerve root avulsions and tears.

2. The brachial plexus injury sustained by Avery Pollard was proximately caused by the negligence of Dr. Peccerrillo when he attempted to deliver Avery's anterior shoulder.

Although the defendants argues that maternal expulsion forces could cause the injury, this court finds, based upon the evidence, introduced during the trial, that the injury in this case was proximately caused by the defendant.

3. The pressure and force that defendant Peccerillo exerted during the delivery of Avery Pollard exceeded that which is allowed under the requisite standard of care: i.e. gentle, non-tugging, non-pulling pressure.

This specific finding of fact is made based upon both direct and circumstantial evidence; and is the result of credibility determinations made by the court as the trier of fact.

4. Avery Pollard has functional deficits and limitations as a result of the defendant Peccerillo's negligence, including a left upper extremity which is shorter than the right, weakness in the left extremity, and pain in the left shoulder area.

CT Page 781 5. The injury to Avery Pollard is permanent and severe and will permanently limit his ability to carry on and enjoy his life's activities.

6. Avery Pollard has a life expectancy of 69 years.

7. Avery Pollard's parents were forced to incur medical expenses and financial costs as a result of defendant Peccerillo's negligence.

8. Defendant Helm and Helm is responsible for the negligence of defendant Peccerillo, under a theory of respondeat superior.

9. The negligence of defendant Peccerillo, which occurred during the delivery of Avery Pollard, caused Susan Pollard extreme emotional distress and resultant damages.

Turning to the issue of damages, the plaintiffs have proven that they incurred economic and non-economic damages as a result of the defendants' negligence. Regarding economic damages, the court did not find credible the testimony of the plaintiff's economist, Mr. Provder, who opined that Avery would have an earning capacity of a high school graduate. Avery is currently a bright and intelligent boy with supportive parents who are ambitious for his well-being. He has the demonstrated ability at this point to become a college graduate. And, there was no support in the evidence for the conclusion that he will be unable to exceed his parents' educational achievements.

Provder's testimony that Avery would be precluded from performing medium, heavy or very heavy types of work was credible. Avery will, no doubt, be limited to sedentary or semi-sedentary professions. And, his life care needs will be more significant and costly than they would have been without his permanent disability.

Avery's parents will probably elect to have future surgery to attempt to improve his medical condition. And, it is probable that Avery will incur future costs for medical care and rehabilitation.

Under law, Avery Pollard is entitled to non-economic compensation for his past disability, past pain and suffering, and past impairment to his ability to enjoy his life's activities. With a life expectancy of 69 years, Avery Pollard will endure the effects and after affects of his permanent injury for decades. It is also reasonably probable that Avery will suffer future pain, both emotional and physical, as a result of his injuries.

CT Page 782 Additionally, Avery's medical condition will likely severely limit his ability to carry on and enjoy his life activities. I certainly hope that Avery will find joy, contentment and satisfaction in his personal life and in his professional life. But, as a trier of fact, I find it likely that whatever joy and contentment Avery achieves, it will come at greater cost (both financially and emotionally) than it would were he not laboring with his physical disability.

Based upon the evidence adduced at trial, the court awards the plaintiffs the following damages, as full, fair just and reasonable compensation:

Claims of Avery Pollard in Counts Two and Three Non-economic damages $ 750,000.00 Economic damages $ 699,125.00* Total Damages $1,449,125.00 *Present value of life care cost identified by expert Provder; co-pays incurred by the Pollards. Emotional Distress Claim of Susan Pollard in Counts Five and Six Non-economic damages $150,000.00 In conclusion the court finds for the plaintiffs on the Second, Third, Fifth and Sixth Counts, and for the defendants on the First and Fourth counts; and awards damages totaling $1,449,125.00 for the negligence claims brought on behalf of Avery Pollard and $150,000.00 for the negligent infliction of emotional distress claim of Susan Pollard.