Nicholson-Upsey v. Touey, No. 004525 (Pa., Phila. Co. Com. Pleas May 4, 2012).
During the 36th week of her pregnancy, Victoria Upsey suffered severe abdominal pain. She went to a hospital, where doctors diagnosed a possible placental abruption. Obstetrician Charles Touey performed a bedside ultrasound and informed Upsey that her baby had died in utero. Upsey disagreed with this assessment and requested a cesarean section. Touey then ordered a confirmatory ultrasound in the radiology deparment.
The test, which was performed over an hour later, confirmed that her baby was alive but in trouble. The child was then delivered by emergency cesarean section and had Apgar scores of zero at one minute and six at five minutes. Now 4, she has been diagnosed as having cerebral palsy and cortical blindness. She cannot sit up or roll over and has minimal head control.
Upsey and her partner, individually and on behalf of their daughter, sued the hospital, alleging the delivery was improperly delayed by 81 minutes. The plaintiffs charged that Touey peformed the first ultrasound using outdated equipment and that Upsey required a lower frequency transducer due to her obesity. Had the child been timely delivered, the plaintiffs asserted, she would not have suffered permanent injuries.
The jury awarded $78.5 million.
Daniel S. Weinstock, Philadelphia
G. Scott Vezina, Philadelphia