Nunez v. Ilene Newman, San Jose Medical Group Inc., Regional Medical Center of San Jose

Dr. Fagel and his associates achieved a verdict of over $38.2 million on behalf of a child who now suffers cerebral palsy and basal ganglia damage after physicians failed to properly respond to complications in the labor and delivery process. The labor process was relatively stable until progress stalled from 12:00am-8:00am the morning of the delivery. However, the attending OB was not concerned because he felt the mother and fetus were healthy at the time. At 8:00am, the regular OB re-started the Pitocin and instructed the mother to start pushing when she was completely dilated at 11:35am. Ten minutes later, the fetal heart rate dropped into the 60’s and the nurse began intrauterine resuscitation to no success. Another ten minutes later, the OB attempted to deliver the baby via vaginal vacuum but failed on three separate occasions. She then ordered a stat c-section and the baby was finally delivered, approximately 35 minutes after fetal distress began. The infant was born with dangerously low Apgar scores and was diagnosed with perinatal depression. As a result of injuries sustained during birth, the plaintiff now has cerebral palsy and motor impairments, and requires assistance for all daily activities.

The defendants contended that there was no need to intervene when labor first slowed because the fetus and mother were healthy. The defense also claimed that the OB made a proper judgment call that she could deliver the baby faster with a vacuum rather than by a c-section. Finally, they argued that the injuries were caused by a small placenta that could not provide a sufficient fetal reserve when the fetal heart rate first dropped.

However, Dr. Fagel and his dedicated associates were able to prove that the injuries were indeed preventable and were a direct result of negligence and malpractice by attending physicians. The early lack of progress should have immediately been diagnosed as arrest of labor and should have been treated with Pitocin or an elective c-section. In addition, when the fetal heart rate dropped, the regular OB should have moved the patient into the operating room for a stat c-section rather than attempting three vacuum deliveries. If physicians properly responded to the complications and delivered the plaintiff earlier, there likely would have be a normal or at least an improved outcome.

With Dr. Fagel’s representation, the plaintiff was able to recover approximately $28 million in past and future medical expenses, $10 million for future loss of earnings and $275,000 for non-economic damages.