In this case, a child had metabolic acidosis at birth and was not breathing. The child was resuscitated bringing the 5-minute Apgar up to 7. A brain MRI was taken at one year and showed damage to the white matter of the child’s brain. There were no neonatal seizures and the defense showed that the term newborn’s brain was afflicted with periventricular leukomalcia.
The jury found several departures from obstetrical standards of care, however, found those departures did not cause the child’s brain damage. The defense proved to the jury that the girl’s brain damage did not occur at birth, but had already occurred in utero by 33 weeks gestation.
This case was tried by Sean F.X. Dugan and Jacqueline D. Berger in the Supreme Court, Queens County.