AUGUSTA — A central Maine couple recently won a $500,000 court judgment against MaineGeneral Medical Center and a pathologist in a medical malpractice case involving tissue samples that were taken from their stillborn baby without their consent.
A jury at the Capital Judicial Center awarded that amount in damages to Michael and Katie Smith, of China, after finding that the hospital and Dr. Carol Saunders were professionally negligent in their actions in early July 2013.
The incident involving the Smith fetus also resulted in a finding by state regulators that patient rights were violated, and the hospital changed its policy in August 2013 with regard to the handling of a fetus when parents request that no surgical pathology examination be done.
“I think it is kind of an unusual case,” said the Smiths’ attorney, Thomas Douglas, in an interview. “It just doesn’t fit into any of the existing category of civil cases that we’re comfortable with. This case involved a stillborn baby that the hospital mishandled.”
The Smiths had sued both the doctor and the hospital in 2014, and a four-day trial was held beginning Sept. 18, 2017, before Justice William Stokes.
Sumner Lipman, an attorney with Augusta firm of Lipman and Katz in Augusta who has handled a number of medical malpractice cases but had no involvement in the Smith litigation, said most large medical malpractice cases nowadays end up in settlements or verdicts exceeding $1 million.
“The reason is that you have to go through two hearings — one before a panel and then another before a jury,” Lipman said via email. “The cost to prosecute cases is tremendous, and thus lawyers are unwilling to take cases if they are not high six figures, or seven or eight figures.
“The $500,000 verdict for a nondeath case or a case where there really isn’t permanent impairment is a very good verdict. The death cases and permanent impairment cases can run anywhere from $1 million to $5 million.”
The fetus, which would have been their sixth son and whom they named Hunter, had no heartbeat on repeated ultrasounds and was delivered at 18 weeks gestation on July 4, 2013, at MaineGeneral Medical Center’s Thayer unit in Waterville.
The Smiths said they authorized only a skin sample from the fetus as well as a sample from the placenta to be taken in their presence — which was performed at bedside by the obstetrician — for genetic testing. The fetus and the placenta then were delivered to the laboratory. A copy of the Anatomic Pathology Requisition form for the placenta examination was in the court file.
There were no allegations that any tissue was sold; it was used only for testing.
However, when the parents and their five children went to the Veilleux Funeral Home on July 5, 2013, they saw a gaping hole in the left side of the fetus.
The Smiths say the pathologist took another sample from the fetus against their express wishes.
During the trial, Michael Smith testified that he was a parent who knew nothing about hospital procedures relating to requisition forms but who clearly specified his and his wife’s wishes to hospital workers.
The nine jury members were shown a photo of the fetus taken by Michael Smith “at the funeral home directly after the Smiths discovered that the defendants had disregarded their express wishes, sliced their child open and allowed him to be transported to the funeral home in this state,” wrote Douglas in arguing successfully that the photo should be allowed as evidence.
Both attorney Jennifer Rush, who represented the hospital and its employees, and attorney Karen Frink Wolf, who represented Carol Saunders, a pathologist employed by Pathology Associates, which contracts with MaineGeneral Medical Center to operate its pathology laboratory, objected to the introduction of the photograph.
Douglas wrote in a Sept. 14, 2017, filing that “the photograph defendants seek to exclude is powerful and irrefutable evidence of their negligence in this case.”
The photo, which is in various shades of red, shows a fetus cupped in the palm of one hand, with the legs barely reaching the second hand; there is a long cut along the left side.
In his closing argument on the fourth day of the trial, Douglas told jurors, “This case is about somebody’s child, Michael and Katie Smith’s, and what happened to it on July 4 and 5, 2013.” He said the sight caused severe emotional distress for the family. “It was just like seeing one of their children with a hole in it.”
He said the hospital had made errors and failed to fill out forms or “to spend five seconds writing a note” to indicate the parents’ wishes.
He said Michael Smith was clear in telling nurses and others, “We don’t want anything else done.”
Douglas said the hospital also failed to return all samples taken from the Smith fetus, which Michael Smith had requested several days after they had been taken. The hospital reported discovering more slides with tissue samples from the fetus in May 2015, he said.
Douglas also noted that a pre-trial screening panel had found in favor of the defendants, but he told jurors that they were not bound by that decision. Medical malpractice cases in Maine must go through a pre-litigation screening panel unless that is waived by the parties.
Rush, in her closing argument, said, “The law imposes standards of reasonableness at the time.” She also said the nurse who consulted the hospital policy with regard to handling the fetus and followed procedures “didn’t know what a surgical pathology exam was. That triggers an obligation of the pathologist to take tissue.”
Saunders indicated that she took another sample from the fetus because she was concerned that the original sample was not large enough for testing purposes.
Saunders was not a hospital employee, but worked at the hospital for Pathology Associates, which contracts with MaineGeneral Medical Center to operate its pathology laboratory.
Jurors found 8-1 that the hospital was negligent and a proximate cause of the Smiths’ damages. Jurors found 6-3 that Dr. Carol A. Saunders was negligent and a proximate cause of the Smiths’ damages.
The jury vote was 6-3 to award the Smiths $500,000 in damages, even though Douglas had suggested $100,000 for each plaintiff in his closing argument.
“We were very fortunate to have a jury that took its duty seriously and paid close attention to the evidence and from all appearances really tried to get it right,” Douglas said. While the Smiths themselves did not respond to a forwarded request for an interview, Douglas said, “I’d say they were very pleased with the award and very pleased with the jury’s efforts to work hard and get it right.”
Wolf, who represented Saunders, said, “We’re disappointed in the verdict. Our view is that Dr. Saunders did her job, and she did it as was required and appropriate.” She added, “The jury has spoken, and that’s what the system is all about.”
She said she was not planning an appeal. “The best thing everyone can do here is accept the verdict and move on,” Wolf said.
Rush, who represented the hospital and its employees, responded to questions about the case via email.
“Based on my relationship with MaineGeneral Medical Center over the years, I can comfortably say that MGMC takes its responsibilities to patients and families very seriously and works hard to always do the right thing,” she wrote. “The reality is that there is no playbook for every situation that is presented to us in our personal lives, or in our professional lives.”
Rush said the testimony of the witnesses who appeared at trial reinforced the fact that hospital employees “executed their best judgment and tried to do the right thing for the Smiths.”
“They cared about them then, and we wish them the best now,” Rush wrote. “Although disappointed with the jury’s conclusion, we are not second-guessing it and have no immediate plans for an appeal. Juries are essential to our system of justice, provide the closure that is needed during times of disagreement, and we respect their decision.”
Betty Adams — 621-5631
Twitter: @betadams
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