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$7,500,000 Jury verdict against a hospital and doctor for the delayed delivery of a baby. Child was diagnosed with athetoid cerebral palsy.

Case: Mertsaris v. 73rd Corp., et. al. 482 N.Y.S.2d 792 (N.Y. App. Div. 2d Dept. 1984).

Plaintiff (Appellee) - Hippocrates Mertsaris
Defendant (Appellant) - 73rd Corp. Physician’s Hospital; Dr. Gotsis (pediatrician); Dr. DiFabio (anesthesiologist); Dr. Arabos (obstetrician & gynecologist); Nurse Fitzpatrick

Court: Supreme Court, Appellate Division, Second Department, New York

Procedural History

Plaintiff brought a cause of action for medical negligence against the Defendants for failure to recognize cephalo- pelvic disproportion. Plaintiff also claimed that the Defendants generally failed to monitor his delivery and failed to properly oxygenate him. He should have been incubated.

Summary of Facts

Hippocrates Mertsaris was born at 73rd Corp. Physician’s Hospital on September 22, 1974. During his mother’s delivery, Dr. Arabos ordered the administration of pitocin, an oxytocin, to speed labor because contractions had begun to slow down and he was dealing with a desultory labor (dystocia). At 3:16 A.M., Hippocrates Mertsaris was born by normal delivery but in obvious respiratory distress. The hospital record noted that at one minute after birth the baby had absolutely no muscle tone, no reflexes, no respiration, slight cyanosis (bluishness) and a heart rate of 160. At this point, Dr. Arabos, who testified that resuscitation was beyond his field of expertise, cut the umbilical cord and directed his attention to delivering the placenta as well as repairing the episiotomy. He turned the care of the child over to Dr. DiFabio and Nurse Fitzpatrick. About two minutes after birth, Dr. DiFabio began resuscitating Hippocrates by fitting an oxygen mask over his mouth. Four minutes after birth Hippocrates began crying. After about 10 minutes he was placed in the incubator. Dr. DiFabio allegedly ordered the drug nalline for Hippocrates as well. Nurse Fitzpatrick, who had no special training in resuscitation, did the initial suctioning with a mucous trap, then placed the child in a crib, and within a minute and a half, administered oxygen under pressure to him. Pediatrician Dr. Gotsis arrived around 4:00 A.M. and examined the infant while he awaited transfer to the intensive care nursery at another hospital. Dr. Gotsis ordered that the infant be placed in an Armstrong incubator and that 40% oxygen be administered. He did not, however, order a PH blood test for acidosis (excessive carbon dioxide in the brain). At 6:10 A.M., the oxygen was discontinued, although Dr. Gotsis claimed never to have given any such order. At 7:30 A.M., the infant was transferred to New York Hospital. The infant was still receiving oxygen when he was transferred, and the final diagnosis recorded by Dr. Gotsis was “Generalized Tremors”, “R/O [rule out] Hypoxia”. The diagnosis upon admission at New York Hospital was perinatal hypoxia. Today, Hippocrates has cerebral palsy with profound motor impairments of both his upper and lower extremities.

Outcome at Trial

A jury verdict for $7.5 million was awarded to the Mertsaris family due to their child having athetoid cerebral palsy. The defendants filed a motion to set aside the verdict, which the trial court denied.

Issues on Appeal

Whether the jury could have found both the doctor and the hospital liable for administering the drug nalline without the doctor’s order, and whether the jury’s verdict in the pediatrician’s favor (Dr. Gotsis) infected the verdict against the defendants as a whole.

Appellate Court Holdings

The Appellate Court held that the jury could not have found both Doctor DiFabio liable for ordering the nalline and the hospital liable for administering the drug without his order. Furthermore, the jury's verdict in pediatrician Dr. Gotsis’s favor was not against the weight of credible evidence and any error in it did not infect the verdict against defendants as a whole.

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