Brain Injury at Birth MedMal Goes To Trial in Palm Beach

Posted by msch on Aug 17, 2011 3:32:00 PM

Gary Cohen and Reed Kelner in MacDonald v KaufmanMacDonald v. Kaufman M.D. (West Palm Beach, Florida)

UPDATE - August 18: Judge David Crow declared a mistrial after jurors saw a consent form containing what Melissa MacDonald claims is a forgery of her signature. During opening statements, her attorney was adamant that she never gave consent for a vacuum-assisted delivery. The two sides had not agreed that the jury could see this document, so the current trial was scuttled.  

A mistrial is frustrating and expensive, but for a suit that's been around since before the iPod existed, what's a few more months?

A multi-million dollar medical malpractice lawsuit filed while Bill Clinton still lived in the White House finally went to trial last week in Palm Beach County Circuit Court. 

Melissa and Robert MacDonald originally sued Dr. Sam Kaufman and Woman's Healthcare Associates over a decade ago, claiming the improper use of a vacuum suction device during the delivery of their son, Jordan, in 1998 caused a serious brain injury. Despite being physically healthy today, Jordan has the lowest possible I.Q. score anyone can have and will require constant care for the rest of his life, according to the MacDonalds' attorney, Gary Cohen of Grossman Roth. 

Jurors rarely get to consider cases this old. It is extremely unusual for a civil suit to spend this long working through even the most clogged state court systems. Both the age of the case and the anticipated length of the trial indicate the high stakes for both sides. 

During opening statements, Cohen told the jury he would ask for an extremely large damages award, but the emotional impact of a family caring for a severely disabled child should not be the deciding factor. Instead he asked the jury to focus strictly on the evidence and whether or not the defendants' actions during Jordan's delivery fell below the appropriate standard of care. "We don't want your sympathy," Cohen repeatedly told the jurors.

According to Cohen, Dr. Kaufman used a vacuum extractor to assist in an emergency delivery after Melissa MacDonald went into premature labor, despite the fact MacDonald's ongoing contractions were not weak enough to call for such aggressive treatment. "You never do that unless its indicated," said Cohen after graphically describing the effects of a vacuum extractor on a newborn's soft skull. "Why the rush to deliver this child?" he asked the jurors incredulously. 

Representing Dr. Kaufman, attorney Reed Kellner of Adams Coogler insisted that the physician acted properly during the delivery of Jordan MacDonald given the specific circumstances. He told the jury Jordan suffers from cerebral palsy which is a result of his premature birth at 35-weeks and not a result of Dr. Kaufman's use of a vacuum extractor. 

Kellner claimed there was nothing aggressive or unusual about the use of a vacuum device. "Vacuum deliveries in the circumstances of this case, by reasonable obstetricians around the country, is considered safe and proper," he said. "It's part of the standard of care." 

The 24-hour, lifetime care Jordan will need likely costs far more than any of the defendants' malpractice insurers would pay, which is the likely reason a case of this complexity is actually being decided by a jury. The vast majority of medical malpractice lawsuits settle out of court before ever reaching trial.

As another sign of the high stakes in the case, Kellner was accompanied in the courtroom by additional defense attorneys from other firms, who will assist in witness testimony over the coming weeks. Extensive expert testimony from both sides is expected, along with testimony from Dr. Kaufman and other on-site medical staff. The trial is expected to last up to three weeks before Judge David Crow and is being webcast in full via Courtroom View Network (CVN).

The case is Melissa MacDonald v. Women's Healthcare Associates, et al. No. 2000CA008025, 15th Judicial Circuit, Florida


Topics: Negligence, MacDonald v. Kaufman, Malpractice