Jury awards nearly $30 million to Holyoke family, says doctor's negligence caused baby's permanent brain damage

By Buffy Spencer, The Republican, February 5, 2016

SPRINGFIELD — A Hampden Superior Court jury has awarded nearly $30 million to a Holyoke family in a civil suit filed after their baby suffered severe and permanent neurological injury.

In the civil suit, a jury decided Friday that Dr. David Seubert was negligent in his care and treatment of now 11-year-old Jeniah Gallego, the daughter of Luis Gallego and Jeanette Gutierrez of Holyoke.

The Gallego family was represented by Robert M. Higgins of the law firm Lubin & Meyer.

The suit was filed in 2011 on behalf of Jeniah Gallego, through her family. It was filed against six doctors involved in Jeniah Gallego's birth in September 2004.

Jeniah Gallego doesn't walk or talk, is legally blind and is fed through a gastric tube, Higgins said.

She has a tracheotomy, an opening surgically created through the neck into the trachea (windpipe) to provide an airway and to remove secretions from the lungs. The tube must be suctioned multiple times each hour.

Her mother and father care for her at home with nursing and other services, and she attends school. When she is well enough she is in the classroom part of the day with one-on-one teaching and nursing care, Higgins said.

In the civil suit, one of the six doctors sued had previously been removed as a defendant and the jury found four others — all physician residents at the time — were not negligent.

The jury in the trial before Judge Edward J. McDonough found Seubert, the attending physician, was negligent for his actions when Gutierrez went to Baystate Medical Center to give birth. Baystate Medical Center was not sued.

The state Board of Registration in Medicine website says Seubert's license lapsed in April 2011. It says lapsed means the doctor did not renew his license in Massachusetts prior to its expiration.

Seubert is now practicing in Rochester, New York.

Kevin Giordano, lawyer for Seubert — asked for comment on the verdict — said, “Everyone involved in this situation, including Dr. Seubert, has tremendous empathy for the family. However, this was a very difficult case involving a mother with a complex medical condition and a very premature infant with pre-existing infection. Ultimately, Dr. Seubert and his team used the best information they were provided and existing medical standards to deliver the best possible care for Ms. Gutierrez and Jeniah. We believe the evidence fully supported the care provided by all the doctors, including Dr. Seubert, and was supported by well qualified experts.”

“Dr. Seubert remains concerned that this outsized financial judgment sets unfair precedents and leads to troubling implications for all doctors, hospitals, and the future of medical practice as a whole,” Giordano, of Keyes and Donnellan, continued. “We are currently evaluating all of our options in this case. As this is ongoing litigation, I cannot comment further at this time.”

The form given the jury to fill out is a multi-page document. First the jury writes its verdict as to each doctor who was sued. The jury answered 'yes' to these questions:

Was the defendant, David Seubert, M.D., negligent in his care and treatment of the minor plaintiff, Jeniah Gallego? Was the negligence of the defendant, David Seubert, M.D., a substantial contributing factor in causing injury to the minor plaintiff, Jeniah Gallego?

Under the section on damages, the jury's $29.89 million award is broken into categories:

  • The amount of money that will fully and fairly compensate Gallego for her physical and mental pain and suffering, disfigurement, loss of bodily function, embarrassment, anxiety, loss of enjoyment of life and other items of general damages. From birth until today, $1.5 million. That probably will be sustained in the future, $10 million. (The jury said the future damages award covers 73 years or to the age of 84.)
  • The jury awarded $1.04 million for compensation for past medical bills.
  • It awarded $16.1 million for future care needs.
  • The award by the jury for compensation for Jeniah Gallego's lost earning capacity is $1.25 million.

According to court records, the medical malpractice suit says from Sept. 5 to Sept. 6, 2004, the defendants failed to do seven things, including assess tests results correctly and perform an emergency cesarean section when needed.

The pretrial report said Gallego "remained in a hostile uterine environment and was not delivered timely causing worsening infection" and other conditions that resulted in the brain damage.

Higgins said Gutierrez showed up at the hospital 28 weeks pregnant saying the baby had decreased movement.

The decision was to admit her and monitor her. From 11 p.m. on Sept. 5 to about 5:30 p.m. on Sept. 6 things were fine, but then the baby's heart rate dropped. Seubert was on call and was called at home but didn't come in, Higgins said.

“The baby was not doing well. She should have been delivered by cesarean section then,” he said.

At about 9:20 p.m., Higgins said, the baby "basically crashed" with a very low heart rate for eight minutes. She was delivered by cesarean section, essentially not alive when she was born, but resuscitated, Higgins said. She had a severe brain injury from lack of oxygen and blood flow, he said.

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