The details of a multi-million dollar verdict obtained by SPBMC Counsel James Wilkens’ were recently published in the New York Law Journal. The verdict was obtained after the delivery of Wilkens’ client, Somaya McCloud, was determined to be mismanaged, causing her to suffer severe physical and intellectual impairments.
At approximately 4:00 am on August 31st, 2011, Somaya McCloud’s mother, Charlene McCloud, was experiencing pain and a stringy pink discharge. She arrived at Montefiore Medical Center in the Bronx, but was not admitted to the hospital. The doctors on duty sent her away with medication for a urinary tract infection. Somaya returned to the hospital later the same day with the same symptoms, and this time, she was seen by a maternal-fetal-medicine specialist, Dr. Nancy Judge. Dr. Judge determined that Charlene, who was 24 weeks pregnant, was at a high risk for premature delivery and complications and prescribed Charlene a tocolytic medication meant to delay her delivery. She was also prescribed steroids to help promote further development of Somaya’s lungs. On the morning of September 2nd, Charlene underwent a footling breech vaginal delivery, and Somaya was born.
Somaya suffers from both Erb’s palsy and damage to the brain, which has impacted her ability to speak and communicate. She requires a specialized curriculum in school and the assistance of an aide. Somaya will require assistance for the duration of her life and will be unable to perform meaningful work as an adult.
Charlene, acting on Somaya’s behalf, sued Montefiore Medical Center and Dr. Judge, alleging that Dr. Judge and the hospital’s staff failed to properly treat Charlene, constituting malpractice that led to the injuries sustained by her daughter, Somaya. The claim against Dr. Judge was later discontinued.
Wilkens argued that Somaya’s Erb’s palsy was caused by an injury to her brachial plexus sustained during the vaginal delivery. Somaya was both highly premature and in breech position, and it is standard procedure for a Cesarean section to be recommended in such a case. Instead, the neonatologist assigned to discuss delivery options with Charlene only stated the negative aspects of a Cesarean section, rather than explaining how this type of delivery could protect Somaya from injury.
“Because the hospital failed to properly inform Charlene of her delivery options, she was stripped of the ability to make an informed decision about her delivery, leading to the terrible impairments her daughter has suffered,” said Wilkens.
Additionally, Wilkens argued that Somaya’s brain damage was caused by ischemia as a result of neonatal respiratory distress syndrome. This was caused by the underdevelopment of Somaya’s lungs, which could have been minimized if Charlene had been prescribed steroids when she first arrived at the hospital instead of much later in the day.
The jury found Montefiore Medical Center liable for Somaya’s injuries and awarded more than $18 million in damages. The parties had entered into a “high-low” agreement of $1.5 million to $8 million and the plaintiff was ultimately awarded $8 million.
“I am grateful that my client and her daughter have received the compensation they deserve. They were owed a duty of care that they simply were not given, and Somaya paid a dear price for this negligence. It is the responsibility of a hospital to advocate for the safety and well-being of both mother and child,” said Wilkens.
The New York Law Journal, which was founded in 1888, is a legal periodical covering notable verdicts, settlements and other major legal happenings within New York. You can access the New York Law Journal here. To learn more about James Wilkens and other notable cases he has litigated, click here.