Collaboration in Civic Spheres

Negligence suit reinstated against Valley Medical Center and doctor in Baby Diego’s death

by Matt Rosenberg April 30th, 2012

A Washington state appeals court ruling today re-opens a medical negligence lawsuit against Valley Medical Center in Renton and a doctor who worked there, by the Tukwila, Wash. parents of a prematurely born infant known as Baby Diego. They claim the hospital did nothing to keep Diego alive after his birth – despite their repeated requests and what experts testified were his 30 to 40 percent chance of survival. Taxpayer-supported Valley Medical is operated by King County Public Hospital District #1 as part of the University of Washington’s UW Medicine network. According to the appeals court ruling, the hospital bears “vicarious liability” on behalf of the named doctor if the case is ultimately decided in favor of plaintiffs Maria Perez Guardado and Cain Rafael Campos. They will now get a trial in King County Circuit Court after an earlier dismissal there of the claim in a summary judgement by Judge Cheryl B. Carey.

Parents Guardado and Campos assert Dr. Kerri R. Fitzgerald, then of Valley Medical Center, ignored their repeated requests before and after the premature birth of their son Diego Esteban Campos Perez in February 2008 at the gestational age of 23 weeks, that every possible measure be taken to keep him alive. Their successful reversal of Judge Carey’s dismissal of the case hinged on expert testimony given during that earlier court proceeding by Nashua, N.H. neonatologist Dr. Marcus C. Hermansen that there was a 30 to 40 percent chance the baby could have survived despite complications, if resuscitation efforts had been made; and related testimony by Chicago, Ill. maternal/fetal medicine specialist Dr. Michael Hussey that the standard of care dictates those efforts should have been made.

Mother “very adamant” about wanting resuscitation for her premature baby, if needed
According to the state appeals court ruling, Guardaro, then 23 weeks pregnant, began to suffer cramping and went with her husband Campos to Valley Medical on February 18, 2008 where despite efforts of an admitting obstetrician she went into labor prematurely but was assured by the obstetrician via an interpreter that “they were going to do everything they could to save the baby when it was born.” The following morning a labor nurse spoke through an interpreter to Campos who agin insisted and was assured all efforts would be made to keep the baby alive. The nurse noted Guardero was “‘very adamant’ that she wanted resuscitation,” which was added to her medical chart.

Valley Medical doctor urged no resuscitation, said Mom accepted
But neonatologist and pediatrician Dr. Kerri R. Fitzgerald met with Campos and urged her to reconsider, asserting that an infant born at 23 weeks would have less than a 9 percent chance of survival without severe complications, and that it was not in the infant’s best interest to be kept alive. According to Fitzgerald’s chart notes, Guardero “expressed understanding that neonatology will be present at delivery but will not resuscitate her infant.”

Parents say repeated requests for aid to baby after birth were ignored; file suit
Baby Diego was born at 11:45 a.m. with an Apgar score of “1″ and a heart rate of 80 beats per minute and “no respiratory effort, tone, or spontaneous movement.” Fitzgerald blanketed the baby and gave him to be held by Guardero. Diego’s heart rate declined by half in the next 10 minutes and he had made a few breaths. in coming hours the parents “repeatedly asked” the labor nurse to check his heart rate, which the chart notes say stayed at 40 bpm. The appeals court ruling adds, “Dr. Fitzgerald made no effort to resuscitate the baby,” who was pronounced dead at 2:15 p.m., two-and-a-half hours after birth. Eleven months later, Guardero initiated a medical negligence claim against Fitzgerald and Valley Medical for failing to try to keep Baby Diego alive, and alleging wrongful death and “loss of a chance for a better outcome.” In their depositions, both the mother Guardero and the father Campos emphasized that after Baby Diego was born and before he died, they repeatedly asked Fitzgerald and other medical personnel to resuscitate him but were consistently refused.

According to the appeals court ruling, “Campos testified that ‘as soon as the baby was born, (the doctor) said that the baby was going to die. And I told her to help him, to put him in an incubator, and they said no, they didn’t want to do it.’ Campos said that ‘I was talking to the nurses and with the other doctor that was there, and I was telling them to hlp my son because he was alive…and they always refused to help him.’” The interpreter then present gave testimony the family expressed related concerns to her and asked “who can they call, what an they do.”

Claim was initially dismissed
Fitzgerald and Valley Medical later won from King County’s Judge Carey a requested summary judgement to dismiss the case, arguing the parents presented no expert testimony linking Baby Diego’s death to lack of resuscitation effort and that even it it had been tried he wouldn’t have survived.

But state appeals court finds convincing the original expert testimony for Baby Diego
The appeals court reversal of the case’s dismissal centered on testimony that was given during the county court proceeding on behalf of the parents and baby that in fact he would have had a 30 to 40 percent chance of survival if efforts had been made, and that the “standard of care” requires the effort be made for a fetus of that age if the parents request.

The opinion written by State Appeals Court Division 1 Judge Ann Schindler concludes, “Viewing the facts and all reasonable inferences in the light most favorable to (the mother) Guardero, Dr. Hermansen’s opinion that had Dr. Fitzgerald provided resuscitation, Diego would have had a 30 to 40 percent chance of long-term survival supports Guardero’s cause of action for the lost chance of a better outcome.” The ruling cancels the dismissal in the lower court and returns the case there for trial. The successful appeal of Carey’s dismissal was filed with the state April 1, 2011 by Burien attorney Georgia Trejo Locher.


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