Congratulations to Sean McElligott, coauthor of The Medical Malpractice Trial, for securing a $30 million verdict on behalf of a woman who suffered life-altering gynecological injuries during a routine C-section. This is thought to be the highest non-birth-injury medical malpractice verdict to be rendered in the state of Connecticut.
Type of Case: Medical malpractice, gynecological injury
Suing for: Medical costs, loss of enjoyment of life’s activities
County: Fairfield County, CT
Total Damages Awarded: $30,374,811.98
The Story
In December of 2014, a 32-year-old woman was admitted to the hospital for the birth of her first child. This was to be the first of many pregnancies for her; she had been married just a year, and she and her husband planned on having a large family.
That evening, however, she remained in the second stage of labor for an extended period of time. Although applicable guidelines state that a second stage of labor should last at most 4 hours, the patient was allowed to remain in the second stage of labor for 9.5 hours before the obstetrician finally ordered a Cesarean section.
Cesarean sections, also known as C-sections, are surgical procedures to deliver a baby through incisions in the mother's abdomen and uterus. It involves a skin incision at the lower abdomen, a fascial incision, and then a uterine incision to remove the baby. C-sections are among the most common surgical procedures in the United States.
The OB made the skin incision, made the fascial incision, and made the uterine incision. However, when she put her hand in to remove the baby, she put her hand through the skin incision and through the fascial incision but then missed the uterine incision. She thought her hand was inside the uterus, but it was, in fact, outside the uterus. She grabbed the baby's head and ripped it through the uterus, creating a massive uterine avulsion while also tearing through the patient’s bladder.
The uterine avulsion was described in the medical record as “nine to three,” meaning the uterus was essentially ripped in half end to end. The OB didn't know she had done this until she went to close the original uterine incision. When she looked inside the surgical cavity, she saw the catheter protruding from the bladder, as well as the cervix, neither of which should be visible if the organs were intact.
The medical staff then brought in multiple surgeons, a urologist, two more OBs, and a general surgeon to try to repair the damage. The new mother had a five-hour surgery, but tragically she was left with permanent catastrophic injuries to her uterus and bladder. She went on to develop multiple fistulas connecting her bladder to her vagina requiring surgery, lifelong incontinence, and most tragically, the inability to bear more children.
The plaintiff didn’t just give up on herself, however. Every week for eight years, she dutifully saw a pelvic PT specialist in an attempt to improve her bladder function and pelvic pain. In lieu of pregnancy, she and her husband used surrogates, completing their family with three more kids, including one set of twins.
The Case
The plaintiff’s medical malpractice case focused on two elements:
The length of second-stage labor. The American College of Obstetricians and Gynecologists and the California Maternity Quality Care Collaborative state that a woman in labor should not go past either three or four hours in the second stage of labor unless there is documented progress of the baby moving through the birth canal. The plaintiff had a nine-and-a-half-hour second stage with no progress documented. This is an indefensible amount of time to keep a patient in the second stage, and it exposed the mother and baby to unnecessary risk of injury.
Mechanism of injury. Expert analysis revealed that there were no extensions on the original uterine incision, which meant that the baby was delivered through the avulsion negligently created by the OB. No expert associated with the case had ever heard of a baby being delivered in this fashion. Despite this, the defense medical expert eventually agreed at trial that this was how the baby was delivered.
“The mechanism of injury was the whole case,” explains McElligott. “If [the OB] thought her hand was inside the uterus but it was actually outside the uterus, you can't argue that this is a reasonable risk of the procedure, or somehow aligned with the standard of care.” Focus groups corroborated the notion that this outcome fell well beyond the range of expected medical risk for such a procedure.
The defense did not make a significant offer before trial.
The Trial
“I’m a huge Rick Friedman fan,” says McElligott. “We definitely used accountability as the major theme.” Not only had the defense failed to take responsibility for their actions in causing the injury, but they took the case to trial hoping to avoid accountability altogether.
The case was brought before a Fairfield County, CT jury of two women and four men. It lasted three weeks of evidence and deliberation took four hours. “Our jury was smart as hell,” says McElligott. “They may have been somewhat conservative politically, but it's almost hard to think of a bad juror for this case because the malpractice was so egregious.”
The Sensitive Issue of Surrogacy
In focus groups, surrogacy was revealed to be a tricky issue. On one hand, the plaintiff did get the family she wanted. On the other hand, surrogacy can beget a strange, emotionally distant experience, both for the mother and for the other family members.
The other challenge to the method of surrogate motherhood falls to the older children, who did not get to experience the natural process of wonder and anticipation in watching their mother’s belly grow. Instead, one day they become older siblings, which is a hard concept to grasp, especially for young children.
One endearing fact about the plaintiff’s surrogate pregnancies had to do with her involving the surrogates in her life after their pregnancies. She introduced her kids to their surrogates and has pictures of them in her house. Unlike many other wealthy families that might dismiss the service of a surrogate after getting their child, this mother understood the tremendous sacrifice these women made for her and her family. “That is what real gratitude looks like,” says McElligott, “and I believe the jury could feel that.”
The Challenge of Using “Proxy Damages Witnesses”
“The malpractice was so egregious that the case centered around presenting the damages in a compelling way,” says McElligott. “The way that I typically do this is through what I call proxy damages witnesses, or lay witnesses who have seen the plaintiff struggle after the incident, and can testify that it didn't used to be that way.” Using this approach, the client doesn't have to provide as much detail about the injuries, which can sound like complaining if they don’t strike the right tone with the jury.
Using proxy damages witnesses proved challenging in this case, however, as the injuries were deeply personal and intimate to the client. The injury created issues not just of urinary incontinence and future childbearing, but also sexual relations, as well as the incalculable loss of the full experience of motherhood. Even with expert witnesses and treating doctors, no one could possibly understand the burden this injury caused; the plaintiff had to explain what this injury had done to her life without the aid of outside perspectives.
Fortunately, both the plaintiff and her husband were able to tell their stories in a compelling way. The husband explained how he was kicked out of the operating theater and made to sit in a waiting room where he saw people coming in and out, flustered and concerned. When one of the surgeons finally came out, he learned that his wife would never be able to have children again. The emotional burden on this young father was truly incalculable.
The Verdict
Total Economic Damages: 1,374,811
Past Economic Damages, not including Surrogacy Costs: $356,307.88
Surrogacy Costs Awarded: $383,821.03
Future Economic Damages: $634,683.07
Non-Economic Damages: $29,000,000
Past/Future Physical Injuries: $5,000,000
Past/Future Physical Pain and Suffering: $5,000,000
Past/Future Loss of Enjoyment of Life’s Activities*: $19,000,000
McElligott gives a special nod to co-counsel David Golub, who broke open the case in a deposition with the defense medical expert, essentially getting the expert to corroborate their theory about the mechanism of injury. “David is a legendary trial lawyer in Connecticut. It was both humbling and inspirational to have the opportunity to try a case with him.”
*Connecticut does not have punitive damages; the state employs a noneconomic damages model called loss of enjoyment of life's activities. This is a model that considers how the plaintiff’s life would be different in the absence of malpractice; in this case, the plaintiff talked about how she would be able to bear children, not experience urinary incontinence, and be able to move and live without worry of exacerbating her injuries.
The Medical Malpractice Trial: Theories Put into Practice
McElligott drew deeply from his years of medical malpractice experience, using the strategies in his book with coauthor Michael Koskoff, The Medical Malpractice Trial:The Medical Malpractice Trial distills the lessons from countless med mal cases, offering practical, actionable strategies that set the groundwork for your case. From detailed examples and case studies to guidance on medical literature, The Medical Malpractice Trial demystifies this daunting practice area. Readers will discover how to:
- Counter defenses that rely on medical judgment;
- Understand the risk of the procedure, and other defenses;
- Find meaning in the minutiae of medical documents;
- Bring your case to life with visual aids and compelling expert testimony;
- Use focus groups to reveal elements that may cost you your case; and
- Frame a medical malpractice case for maximum damages.
The Medical Malpractice Trial is available in paperback, and through instant download via ebook.
About Sean McElligott
Sean McElligott is a partner at Silver Golub & Teitell LLP, a plaintiff firm based in Stamford, CT. A graduate of Yale Law School, McElligott is a seasoned trial lawyer with multiple significant verdicts in the practice areas of catastrophic injury, medical malpractice, and product liability. McElligott is coauthor of The Medical Malpractice Trial, published by Trial Guides.