$12 million A.R.O.M.

[Guest guest]

========

FACTS OF THE CASE

This medical malpractice action seeks damages for brain injuries sustained

by infant Andres Peraza as a result of the events surrounding

his birth at Arden Hill Hospital (Orange Medical Center) on May 24, 2003,

particularly, the artificial rupture of the mother’s membranes (A.R.O.M.)

by Dr. DiCostanzo to accelerate the baby’s delivery. Defendant-Respondent

Dr. DiCostanzo is the private obstetrician involved in the pregnancy care,

labor, and delivery.

This case is unusual, in that the plaintiff alleges that this invasive

obstetrical procedure (A.R.O.M.) was performed without her consent and

despite her outright refusal of consent. This is not an “informed

consent”

case. The claim is not that the plaintiff was given insufficient

information about the risks, potential complications, or alternatives,

needed to make an informed decision. Rather, plaintiffs contend that

regardless of whatever information that was (or wasn’t) supplied, she

never consented to this invasive procedure - the rupture of her membranes

- at all. The procedure was performed against her wishes, disregarding her

refusal of permission. As such, the quality or quantity of the information

she was given, is irrelevant.

The plaintiff (mother) Elsa Peraza, defendant obstetrician Dr. DiCostanzo,

and all three Labor and Delivery Nurses, as well as the plaintiff’s

mother

(the infant’s maternal grandmother) and sister, have all been deposed to

completion. Not one witness testified that the mother consented to the

A.R.O.M

The case is on the trial calendar in the Supreme Court, Orange County, and

is scheduled for trial in October 2006.

A. The Mother’s Refusal of Consent:

The mother, Elsa Peraza, testified that she wanted a natural labor that

would progress at its own speed. Accordingly, she refused to have her

labor accelerated with chemical stimulants, and refused to have her labor

sped up by artificially rupturing her membranes (“A.R.O.M.”). [R.

39-40,

574, 579, 586]

From the time the mother first arrived at the hospital at about 7:50 p.m.,

until her emergency cesarian section at 1:42 p.m. the next day, three

Labor & Delivery Nurses (Donna Daley, RN, Loretta Colgan, RN, and

, RN) cared for Mrs. Peraza, over the course of two nursing shifts.

All three nurses uniformly testified that from the time Mrs. Peraza

arrived until Dr. DiCostanzo artificially ruptured the mother’s membranes

some eighteen hours later, the mother refused consent for A.R.O.M.

(Although the parties disagree as to whether or not the mother relented

and eventually consented to induction or “augmentation” of her

labor with

drugs, this appeal is limited to the performance of the artificial rupture

of membranes (A.R.O.M.) to speed up the labor.) The fact that all three

nurses whose care spanned the entire time from admission to A.R.O.M.

uniformly testified to the mother’s refusal of consent to the A.R.O.M.,

is

important, because it disproves the inference of “acquiescence by

conduct”

that underlies the lower court’s Decision and Order [R. 9].

Mrs. Peraza testified that her obstetrician, defendant Dr. Lynne

DiCostanzo, pushed to have this delivery expedited for her own (the

doctor’s) convenience, and the mother reluctantly went to the hospital

because Dr. DiCostanzo was so insistent and bullied her into it:

A. So, I want to be everything okay. [Dr. DiCostanzo said] I will

induce your labor. And I say, no, I don't want it. I want to wait

for the end, because I want to feeling normal; you know, my

normal contraction and everything. I want everything normal.

And she explained to me how she's going to induce my labor.

And I say, I don't want it. But she insist. She insist to me. And

she push it to me, like it -- she say, no, this is better day.

I think her daughter or somebody, her son or her daughter born

in May. And she say, oh, so, is going to be like my daughter -

May 24th, or something like that. And I say -- I don't say anything

now; I'm think about by myself - so, I don't care if her daughter

born on that day. So, only, I'm worrying about how I'm feeling

that day.

And she say, I waiting for you 6 o'clock in the Arden Hill

Hospital.

I say, but I'm not ready. You know, I'm not ready with my baby

things and stuff.

Q. Did you tell her you didn't want to go to the hospital that night?

A. Yeah, I told her. [Peraza EBT, pages 99-100, R. 566-567]

A. And she insist to me to have it - induced labor the same day.

I mean, go to the hospital the same day to induce my labor.

[Peraza EBT, page 104, R, 571]

When she arrived at the hospital, Elsa Peraza reiterated her refusal of

artificial means to speed up her labor, explicitly telling the admitting

nurse (Nurse Daley) that she refused consent to the use of drugs or

rupture of membranes to bring accelerate her labor and delivery. She went

to the hospital, as directed, with the intention of having childbirth on

nature’s schedule, without drug or surgical interventions. Questioned by

Dr. DiCostanzo’s attorney, Mrs. Peraza testified:

Q. And as you're talking to me now, you told her you didn't

want to go in for an induction?

A. Yes. I told her, I don't want it. I say, I don't want it today.

Q. Why?

A. Too early, you know. I know is three weeks early.

Q. Did you tell her you didn't want it that particular day, or that

you didn't want it at all?

A. All. I don't want it at all. ... [Plaintiff’s EBT, page 107, R. 574]

Labor and Delivery Nurse Donna Daley admitted Mrs. Peraza to the maternity

unit at about 7:50 p.m., and wrote in the chart that the patient refused

induction of labor and refused the artificial rupture of membranes. The

Intake Note clearly documents that the mother “States does not want

A.R.O.M. or induction.” [R. 16, 431]

At her deposition, Nurse Daley testified that the mother never withdrew

that refusal [R. 28]:

Q. From the time that Elsa first told you she didn’t want an artificial

rupture of membranes until the time you went off shift about 7:00

the following morning, did she ever say to you, I have changed my

mind, I consent to artificial rupture of membranes?

A. No. [Daley EBT, p. 34, R. 18]

Nurse Lauretta Colgan took over Elsa Peraza’s care for the night shift.

During Nurse Colgan’s shift, Dr. DiCostanzo visited the mother in the

hospital at about 10:00 p.m., and had a discussion with Mrs. Peraza in

Nurse Colgan’s presence. Neither Dr. DiCostanzo, Nurse Colgan, nor Mrs.

Peraza testified to the exact words that were exchanged, nor the quantity

or quality of information that was supplied, but the defense contends that

this was an “informed consent” discussion. In any event, even after

this

discussion, the mother did not verbalize any retraction of her prior

refusal of an artificial rupture of membranes (A.R.O.M.).

Dr. DiCostanzo did not testify at deposition that the mother consented to

an A.R.O.M., nor supply an affidavit or affirmation or any other

supplemental materials contradicting Elsa Peraza’s explicit and

unyielding

refusal of consent for the A.R.O.M.

Nurse Colgan testified to her impression of that conversation - that

although the mother understood the need to deliver the baby, she still did

not want induction or A.R.O.M. Nurse Colgan could not remember the

conversation verbatim, but she recalled the substance:

Q Can you give it to me in substance, if you can't give it to me

word for word?

A. I would say that she understood the need for the

induction. Did she want it, no. Did she understand the need

for it, yes. [Colgan EBT, p. 33-34, R. 891-892]

Nurse Colgan further testified that the patient refused all chemical

stimulation to accelerate of her labor, and refused A.R.O.M.:

Q Where did you get this information that she did not want A.R.O.M.?

A It says [in the hospital chart], ‘states does not’. Elsa [said

that].

Q She said it to you?

A Right.

Q You said before that she didn't want any chemicals?

A Right . . . She didn't want induction of labor. Whether you

want to call it prostaglandin or whatever, a chemical stimulation

or, you know. Yes, Elsa said that to me. [Nurse Colgan’s EBT, P.

21-22. R. 19, 880-881]

* * * * *

Q From the time Elsa first told you she didn't want an artificial

rupture of membranes, to the time you went off shift about 7:00

the following morning, did she ever state to you that she changed

mind, that she does want chemical stimulation or that she does

want artificial rupture of membranes?

A Stated, no. [Colgan EBT, p. 22, R. 881]

However, despite the complete absence of verbalization, Nurse Colgan

testified that she “absolutely” believed that Mrs. Peraza acquiesced

to

the Cervidil induction by her conduct. [R. 881] Mrs. Peraza stayed in the

hospital overnight, and changed from street clothes to a hospital gown. A

change of clothes is necessary to insert the Cervidil vaginal suppository

(to accelerate the labor) [Colgan EBT, p. 32-33, R. 891-892], but there is

no testimony from anyone that Mrs. Peraza changed her clothes for that

purpose, rather than simply to avoid going to bed in street clothes. The

defense contends that the change of clothes implies the mother consented

to induction, and the Order Appealed From adopted the defense’s

conclusion, holding that “Ms. Colgan’s testimony raises a triable

issue of

fact as to whether plaintiff acquiesced by conduct to her treatment after

her initial admission to the hospital.” [R. 9].

Although Nurse Colgan surmised that the change of clothes evidenced

unspoken consent to induction, she did not testify that it evidenced

consent to the A.R.O.M. that followed some fifteen hours later. To be

absolutely sure there was no misunderstanding, Nurse Colgan was asked

again:

Q. But she never said I want it [Cervidil] and she never retracted

her prior statement - -

A. Not verbally.

Q. - - that she didn’t?

A. Not verbally. [Colgan EBT, p. 33, R. 892]

* * * * *

Q. From the time Elsa first told you she didn’t want an artificial

rupture of membranes, to the time you went off shift at 7:00 the

following morning, did she ever say to you I have changed my

mind, I consent to an artificial rupture of membranes?

A. No. [Colgan EBT, p. 34, R. 893]

Nurse Colgan was asked about the routine end-of-shift “report” she

gave to

the succeeding nursing shift, and she re-confirmed the mother’s refusal

of

consent to A.R.O.M. a third time:

Q, If I told you that yesterday, Nurse gave testimony in

this case and said that you told her Elsa Peraza did not want an

artificial rupture of membranes [at the end of your nursing shift,

when you gave your “report, “], would you have any reason to

disagree with that?

A. No. [Colgan EBT, p. 37, R. 896]

Labor Nurse took over at 7:00 o’clock the next morning when

Lauretta Colgan’ shift ended and she went home.

Nurse testified that when she came on duty, she was informed by

Lauretta Colgan of the patient’s refusal of consent to A.R.O.M., and

there

was “no question” that the patient refused artificial rupture of

membranes. [ EBT, p. 31, R. 956] Nurse testified:

Q Were you aware of this note [stating that patient refused

induction and A.R.O.M.] when you took on the patient [at the

beginning of your shift]?

A Yes, I was.

Q How did you become aware of it?

A Loretta [Colgan, the prior shift nurse, told me when she

went off shift]. [ EBT, p. 30, R. 18, 955.]

Therefore, according to all three nurses that throughout the night shift

and continuing into the following morning, the mother never retracted her

refusal of consent for A.R.O.M.. Even assuming that the mother reluctantly

acquiesced to induction (which is in dispute), there is nothing at all

suggesting she acquiesced to A.R.O.M. Every witness testified Mrs. Peraza

was steadfast in her refusal of consent to A.R.O.M.

This is of great importance, because it directly refutes the inference the

defense drew from Nurse Colgan’s testimony, that the mother acquiesced by

conduct. Nurse Colgan herself testified to the mother’s unwavering

refusal

of consent to the A.R.O.M. right to the time she ended her shift Dr.

DiCostanzo never testified that the mother consented to an A.R.O.M.,

either. No one did.

B. Dr. DiCostanzo Proceeded Without Consent:

When Mrs. Peraza was admitted, her obstetrician, Dr. DiCostanzo, had not

yet arrived at the hospital. Notwithstanding the mother’s

clearly-documented refusal of induction and A.R.O.M., Dr. DiCostanzo

issued a telephone order that a chemical labor-inducing/accelerating drug

(Cervidil) be ready for administration as soon as she arrived at the

hospital. Dr. DiCostanzo inserted the Cervidil vaginal suppository

immediately on her arrival. [Nurse Colgan’s EBT, R. 269, 887-889] Doing

so

was in direct violation of the mother’s explicit, documented refusal.

Thereafter, when the labor still did not progress fast enough to suit Dr.

DiCostanzo, a second labor-accelerating drug, Pitocin, was added. [R. 287]

Later, when the two chemical stimulants still did not speed things up as

fast as desired by Dr. DiCostanzo, she undertook a third, fateful

procedure to expedite the delivery: Dr. DiCostanzo performed an elective

artificial rupture of membranes (an A.R.O.M.). This invasive procedure

consists of inserting a blade or hook, up and into the birth canal and

piercing the amniotic membrane that contains the baby, the umbilical cord,

and the amniotic fluid. [DiCostanzo EBT, p. 159, R.830]

Elsa Peraza’s flat-out refusal of this A.R.O.M. procedure is clearly

documented in the Nurses’ Admitting Note [R. 16, 431] and was testified

to

by all three labor nurses, who agreed that the mother’s refusal of the

A.R.O.M. was never withdrawn or modified. Dr. DiCostanzo simply pressed

on, disregarding her patient’s documented refusal of consent.

Labor Nurse was an eyewitness to the A.R.O.M. and the delivery.

Nurse testified that Dr. DiCostanzo ruptured the patient’s

membranes artificially although she specifically told the doctor that the

patient refused consent just before the membranes were ruptured:

Q Was there any conversation between Dr. DiCostanzo and Elsa Peraza that

you observed or overheard at about the time the membranes were ruptured up

to the time of the rupture itself?

A I made Dr. DiCostanzo aware that she didn't want ruptured

membranes.

Q That the patient didn't want it?

A That the patient didn't. And the conversation I can't recall her

discussing it with Elsa.

* * *

Q Did she go ahead and rupture the membranes anyway?

A. Yes, she did.

Q In your presence?

A Yes, she did. [Nurse ’s EBT, p. 43-44, R. 20-21, 968-969]

(4) Nurse testified:

Q. Is cord prolapse something which was recognized in the labor and

delivery service as being a real obstetrical emergency?

A. Absolutely.

Q. Why?

A. Because the head would come down and press on to the cord and

cut off the oxygen supply to the baby..... [ EBT, page 53, R.21,

978]

C. The A.R.O.M. Caused a Catastrophic Cord Prolapse:

Immediately after the membranes were artificially ruptured, a loop of the

baby’s

umbilical cord popped out of the birth canal. This condition, known as a

“prolapsed cord” or “cord prolapse,” is an obstetrical

catastrophe

requiring an emergency cesarean section.

Cord prolapse is an obstetrical emergency because the baby’s head is

still

undelivered, and the head pinches off the umbilical cord (from which the

unborn baby gets its oxygen from the mother) in the confined, tight space

within the birth canal. Before the membranes are ruptured, the intact

membranes hold the cord back, preventing prolapse. A frank cord prolapse,

as herein, can only happen after the membranes are ruptured. [21-22, 32,

1030]

Because the prolapsed cord is pinched shut in the birth canal, the baby

cannot get oxygen and asphyxiates within the womb. That is exactly what

happened here. [R.22, 31, 978, 1939]

Despite an emergency cesarean section and emergency resuscitation 32

minutes after the A.R.O.M. produced the cord prolapse, the baby was born

with severely depressed Apgar scores of 1 one minute after birth, 1 five

minutes after birth, and only 5 at 10 minutes after birth. (10 would be a

perfect Apgar score). [R. 22, 328, 1002]

The newborn was rushed to Westchester County Medical Center, where he

remained in the Neonatal I.C.U. for several weeks. Now, at approximately

age 2-1/2 years, he shows the severe brain injury from these terrible

events. [R. 22, 121-123]

Defendant Dr. DiCostanzo reluctantly admitted that prolapsed cord “very

likely” caused the precipitous drop in the fetal heart rate. She

testified:

Q. Is it your testimony that you are not sure if this dramatic drop in the

heart rate eight minutes after the prolapse is related to the prolapse? Is

that your testimony?

A. My testimony is that I don’t think anyone can say that it

‘absolutely’

is caused by the prolapse.

Q. Is it very, very likely that it was caused by the prolapse?

A. Very likely. [DiCostanzo deposition, page 172, R. 22, 844]

Thus, even though the defendant tried to evade the question by couching

her

testimony in absolute terms, when pushed, she was forced to concede that

this was “very likely.” Since the law only requires that expert

testimony

be given with reasonable certainty, and not absolute certainty, causal

connection is established through the defendant’s own testimony.

Plaintiffs’ expert, board-certified obstetrician Dr. Soffer,

confirmed the causal connection:

It is also my opinion within a reasonable degree of obstetrical certainty,

that there is absolutely no question that the A.R.O.M. in this case

directly caused the cord prolapse, which caused a deprivation of oxygen to

the infant, and the infant’s resultant brain damage. [R. 31]

In what may have been evidentiary overkill, plaintiffs also submitted an

excerpt from the Gabbe, Niebyl, and Simpson’s authoritative textbook,

Obstetrics – Normal and Problem Pregnancies, (2002), “Intrapartum

Complications,” which instructs that:

Cord Prolapse: Cord prolapse refers to passage of the umbilical cord into

the vagina ahead of the presenting part following rupture of the fetal

membranes. ... Prevention of iatrogenic cord prolapse can be achieved

by performing amniotomy [rupturing the membranes] with fundal

pressure and only when the vertex [the top of the baby’s head] is well

applied to the cervix. [Emphasis ours] [R. 1038-1039]

This published statement, made without hedging or qualifications, tells us

both that iatrogenic cord prolapse is preventable (“prevention can be

achieved”) through proper technique, and that the cord prolapse herein

could not possibly have happened but for Dr. DiCostanzo’s unconsented-to

A.R.O.M. (“Cord prolapse [happens] following rupture of the fetal

membranes.”) [R. 1039]

[...]

========

Mark won $1,500 per month, every month, for the rest of the child's life.

" In addition, when turns age 18, the structure will

additionally pay a “college fund” of $50,000.00 per year

($200,000.00

total) to fund his higher education. In addition, the structure will pay

our further lump sum cash payments of

$ 60,000 on 05/24/2028

$ 80,000 on 05/24/2033

$100,000 on 05/24/2038

$150,000 on 05/24/2043

In all, it is anticipated that over a lifetime of 75 years, this structure

will pay Andres the total sum of $12,680,842.56. "

No virus found in this outgoing message.

Checked by AVG Free Edition.

Version: 7.5.503 / Virus Database: 269.15.18/1104 - Release Date: 11/1/2007 6:47 PM