Lanabean
Yoginis
Member since 11/05 9202 total posts
Name:
Lana
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Re: Dr. Wagner in Huntington...anyone go to him or his practice?
Sorry, lurking, but I go to Karen Morris, who is a doctor in the practice. I think I'm going to seek out someone else (if I still live here, LOL) when we TTC. If it's the Wagner I'm thinking of, there was an issue recently with Karen and the entire practice was sued. It was a sad situation and Karen is no longer delivering babies.
here it is:
High-Low Agreement Deflates $111.7 Million Award In Med-Mal Case
#8
Reden v. Wagner (Jan. 26, 2004)
© 2004, Lawyers Weekly
By Nora Lockwood Tooher
Verdict: $111.7 million total zero in punitive damages
State: New York
Type of case: Medical malpractice, birth injuries.
Trial: 3 weeks
Deliberations: 3 hours
Status: Settled for $6 million based on high-low agreement. Money collected.
Case name: Reden v. Wagner
Date of verdict: Jan. 26, 2004.
Plaintiffs’ attorneys: Steven E. Pegalis and James B. Baydar of Pegalis & Erickson in Lake Success, N.Y.
Defense attorneys: Clifford A. Bartlett Jr. of Bartlett, McDonough, Bastone & Monaghan in Minneola, N.Y.
Based on a high-low agreement reached between closing arguments and jury instructions, plaintiffs who won a $111.7 million medical malpractice verdict will collect just $6 million.
But at least they have their money.
Steven E. Pegalis, attorney for the plaintiffs, said his clients are pleased with the settlement agreement and feel vindicated by the jury's verdict.
"They have no regrets about not going on," he said. "They're most pleased that there will be a fund for their child and they are most pleased that the jury listened to their case and believed them."
The family has collected the money - minus attorney fees - and have bought a new, one-level house so that they no longer have to carry their daughter up three flights of stairs, Pegalis said.
Danielle Reden was severely brain damaged during birth and now, at age 7, has cerebral palsy, can't walk on her own and has difficulty holding her head up. Her parents sued her doctors for failing to respond to warning signs of fetal stress during the birth.
The high-low agreement avoided appeals and "years of waiting" to collect their money, said Pegalis.
"Once you enter into a high-low agreement, there's no appeal," said defense attorney Clifford Bartlett Jr. "It's a type of settlement that protects the plaintiff on the low side from getting nothing and a defendant on the high side from a $111.7 million verdict."
The way the agreement was structured, the plaintiff would collect $6 million if all three doctors were found liable, $4 million if two were found liable and $2 million if just one doctor were found liable. If the jury delivered a complete defense verdict, the plaintiff would still collect $2 million, according to the agreement.
Both sides said the $111.7 million award would have been substantially reduced anyway. New York statutes reduce awards to present value, and since $105 million of the jurors' award was to be spread out over Danielle's lifetime, the final judgment would have been significantly lower, Pegalis said.
Although Pegalis said he had no estimate of what the present value of $105 million would be, Bartlett estimated it at about $20 million.
"The court is required to reduce [the award] to present value," Pegalis said. "Then, the court must consider whether or not it's excessive and consider whether it's against the weight of the credible evidence. Then, the appellate courts have to consider these issues. So, two or three years from now, we would be getting a final decision, and I'm pretty confident the decision would be for us, but I'm not sure how much more I could collect, and so, let's get this money working for this child. That was our thinking."
Pegalis stated that the $111.7 million verdict was the fourth largest in New York's history, and added that his nine-lawyer firm has two others among the top four. Those verdicts, which are posted on the Lake Success, N.Y., firm's website, are:
a $114.8 million verdict in 2001 for a woman who sustained serious brain damage during an emergency tracheotomy.
a $116 million verdict in 1998, the highest in New York's history, for an infant who sustained serious brain damage during labor and delivery.
Pegalis noted that the trial judges in both cases subsequently reduced each award to about $7 million.
He also said he had agreed to the high-low settlement after rejecting an earlier offer by Bartlett in which only one of the physicians in the case agreed to settle, for a total of $2 million.
"Our feeling was what they were talking about was simply inadequate. We felt very strongly that all three doctors were involved. They made a $2 million offer and we didn't want it. We could have taken it," he said.
At the end of the three-week trial, jurors deliberated just three hours before finding against all three physicians. Karen Moriarty Morris was found negligent in her interpretation of the tests on the fetus. But both John R.Wagner and Theodore L. Goldman were held liable for not having a proper system in place in which Morris would have reported Mrs. Reden's complaint of decreased fetal movement at the practice's regular Friday meeting.
However, Wagner was not held liable for failing to perform a C-section within an hour of Elizabeth Reden's arrival at the hospital. Pegalis speculated that jurors did not find Wagner at fault for the C-section because they had already found him liable for the faulty procedures in their practice.
Asked if he would have accepted the high-low settlement proposal had he known the jury would award $111.7 million in damages, Pegalis said: "I don't think I would have changed anything."
A Mother's Fears
The Redens filed suit against the three Huntington, N.Y., obstetricians based on alleged negligence during their daughter's birth.
On Jan. 28, 1997, Elizabeth Reden was at her job as a payroll manager when she felt a noticeable decrease in fetal movements. Her due date was five weeks away.
Alarmed, she drove to the Huntington, N.Y., offices of the obstetrical group that had been providing regular prenatal care during her pregnancy, and reported her fears that something was wrong with the baby.
Morris, the junior member of the obstetrical group, performed a series of tests to check on the baby's health, including a non-stress test and a sonogram. Morris scored the results as eight out of 10, with 10 being the highest measure of fetal wellbeing. Two points were deducted because the non-stress test - which measures fetal heart rates - was non-reactive.
Morris testified that although the non-stress test was non-reactive, it was "not worrisome," because she observed fetal movement on the sonogram, Pegalis said. Morris told Reden to continue measuring fetal kicks and to report any changes in fetal movement.
On Sunday, Feb. 2, Elizabeth Reden called the doctor's answering service to report that she felt no fetal movement that day. Wagner called back and told her to meet him at Huntington Hospital right away. Elizabeth Reden and her husband, John, arrived at Huntington Hospital at about 3:40 p.m. Wagner examined Elizabeth Reden shortly after she arrived at the hospital. Although there was no dispute that the external fetal monitor was essentially flat, a Caesarean section was not performed until 7:15 p.m.
According to Pegalis, although Wagner testified at the trial that he performed an "urgent Caesarean section," there was no such note in the record at the time of the events.
The infant was born without enough sugar in her blood and not enough oxygen. Two days later, she was transferred to North Shore University Hospital, where she was diagnosed with brain damage.
'Common Sense'
Pegalis said he based his case on "common sense," and told jurors that when Morris did the original testing there should have been a procedure in place for an ongoing evaluation of the fetus's health.
During the trial, there was conflicting testimony by the defendants about whether Morris had alerted the other doctors to Elizabeth Reden's complaints about decreased fetal movement.
Each Friday, the obstetrical group held a staff meeting to discuss any concerns that had arisen during the week. Morris testified that on Friday, Jan. 31, she raised the subject of Elizabeth Reden's concerns.
But the two other obstetricians testified otherwise. Wagner testified that he didn't recall whether Morris raised the issue at the meeting, and Goldman testified that Morris did not raise the issue at the meeting. He further testified that he presumed Morris would know to raise an issue of such importance at the Friday meeting.
Pegalis said a key piece of evidence shown to jurors was the fetal monitor tracings that were taken on Jan. 28 and again on Feb. 2. The first set, he said, showed some variability when Morris tested Elizabeth Reden on Jan. 28. Five days later, Pegalis said, the second set "was a flat line that showed things were terrible."
According to Pegalis, a turning point in the trial was his questioning of Morris, in which she was unable to explain why she didn't conduct further testing. Pegalis said he asked Morris how she would have been able to determine the health of the fetus if she only tested it at one point of time.
"She said, 'You'd have to have ongoing evaluations,'" Pegalis recalled. "I asked my expert, 'Do you agree?' He said, 'Yes.' I asked him, 'Were there ongoing evaluations?' He said, 'No.'
The jury was comprised of five women and one man. Female jurors included women from childbearing age to grandmothers. Pegalis said that all the jurors, including the lone male on the jury - a gym teacher - seemed moved by the plaintiffs' case.
"It all meshed," Pegalis said. "These wonderful parents, both father and mother, testified."
The Redens' daughter also testified briefly.
"We asked her some questions," Pegalis said. "She told us her favorite show is 'Sesame Street,' she spelled her name, but she has difficulty holding her head up."
Jurors also saw a videotape of Danielle at family gatherings and of her competing in the Special Olympics.
Medical experts called to testify during the trial clashed on whether Morris should have conducted further tests after the initial Jan. 28 testing.
Defense experts contended that the biophysical profile Morris performed on Jan. 28 was normal, and that Danielle's neurological deficits were the result of a chronic problem caused by a small placenta, which created an in utero problem several weeks prior to birth.
But four medical experts for the plaintiffs said the non-reactive non-stress test signaled possible fetal distress and should have been followed up by further monitoring.
Bartlett conceded that a weak point in the defense's case was Morris's admission that she had suggested to Elizabeth Reden that the baby was sleeping as the reason for the non-reactive non-stress test, and did not tell her that hypoxia - a decrease of oxygen to the brain - was also a possibility.
Morris also admitted that although she attributed the low fetal heartbeat to sleeping, she didn't wait half an hour to take another test or suggest admitting Elizabeth Reden to the hospital for further testing.
"Clearly, the jury felt the most damaging thing relative to Dr. Morris was that she didn't wait 30 minutes for the end of another sleep cycle," Bartlett said.
Morris should have established a plan for Mrs. Reden for an ongoing assessment of the fetus's health, Pegalis told jurors.
"They could have admitted her to the hospital; they could have seen her the next morning," Pegalis said. "They certainly shouldn't have sent her back to work."
Questions or comments can be directed to the writer at: [email protected]
Message edited 10/31/2006 9:09:46 AM.
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