Trial Magazine

Sperling v. Pecos Valley of N.M., LLC, No. D-101-CV-2016-00742 (N.M. Dist. Ct. Santa Fe Cnty. Aug. 23, 2018)

While pregnant with her son, Lorenza Botello received prenatal care at Pecos Valley of New Mexico, an outpatient clinic in Carlsbad, N.M. During her ­visits, Botello learned that because of her age and her diabetes, she was at increased risk for fetal macrosomia, a condition in which a baby is unusually large at birth—raising concerns about a high-risk ­delivery.

During subsequent prenatal visits to the clinic, the baby’s measurements were recorded and indicated that macrosomia was likely. The standard of care for this condition requires additional ultrasound testing throughout a pregnancy. Specialists at the University of New Mexico Health Sciences Center also ­recommended continued testing of the baby’s growth after conducting genetic testing on the fetus, which showed no signs of genetic abnormalities. But in follow-up visits to the clinic, Botello did not receive this extra testing, and her doctor, Jerry McLaughlin, incorrectly estimated that the baby would weigh eight pounds at birth.

McLaughlin did not order a C-section for Botello, which also is generally recommended in macrosomia cases. When she went into labor, her baby was too large to deliver vaginally—his shoulders became stuck in the birth canal, which deprived him of oxygen for approximately 10 minutes while doctors struggled to deliver him. Eventually, with the use of vacuum extraction, McLaughlin was able to deliver the baby—but not without damaging nerves in the baby’s right arm, resulting in a brachial plexus injury. The oxygen deprivation also resulted in hypoxic ischemic brain damage.

Botello’s family, through a conservator, retained Midland, Texas, attorneys Rick Barrera and Kent Buckingham to sue McLaughlin and the clinic on behalf of Botello and her son. After McLaughlin died in 2017, suit proceeded against the clinic as his employer.

The clinic maintained that McLaughlin had simply exercised his judgment as a doctor for how to handle Botello’s delivery and that it was not vicariously liable for his actions. The clinic argued that McLaughlin had been “attentive” in his care of Botello. He instructed her to track her blood sugar levels and adjusted her insulin medication when her levels were too high.

McLaughlin also ordered an ultrasound for Botello at 27 weeks when a measurement of the fetus showed that it was one centimeter larger than it should have been at that time—but for some reason, the ultrasound was not conducted. The clinic said it did not know the reason the ultrasound was not done and could not speculate as to why since McLaughlin had passed away.

The clinic portrayed the doctor’s actions as urgent measures to save the baby’s life and also argued that the baby had not suffered brain damage during his birth because after being transferred to another facility for a higher level of care, an MRI did not show abnormal results. The clinic disputed the level of injury to the baby’s right arm and shoulder, and it claimed that any developmental delays he experienced were the result of the brachial plexus injury and not neurological damage and that this was not a permanent disability that would greatly affect his life.

But Buckingham and Barrera undercut this argument during cross-examination of the defense experts. “We were able to prove that the [experts] were acting more as advocates for the clinic rather than being true, unbiased expert witnesses,” Buckingham said. “We caught them in a few misrepresentations, and I think that kind of angered the jury.”

The jury awarded approximately $73 million: $20 million to the child, $13 million to Botello, and $40 million in punitive damages. New Mexico has a medical malpractice damages cap of $600,000 that applies to lost income, lost earning capacity, and noneconomic damages.¹ But it does not apply to punitive damages or compensation for any medical and rehabilitative care made necessary by the defendant’s negligence, including payment of ongoing care in cases of permanent disability. The trial judge dismissed the defendant’s posttrial motions to reduce the damages.

Buckingham explained that the outcome shows the impact of a jury trial. “This verdict represents the power of a jury. The jurors will effect change by their vote here,” Buckingham said. “This will get the attention of every health care provider in New Mexico, and, actually, across the country. . . . They will make sure they make changes in their policies so that another little boy and mom don’t have to suffer.”

He also noted that the jurors were highly engaged in the trial. Several of the jurors had scientific backgrounds, which may have aided their understanding of the medicine and helped them to grasp the severity of the baby’s injuries and the defendants’ negligence.

The attorneys noted that the family was grateful for the verdict, which would allow for life-long care for their son. Now 5, he likely will never be able to live independently due to his brain damage and little to no function in his right hand and arm. The family hopes that the outcome will be a signal to health care providers and prevent other birth injuries. “A child who entered this world and faced tragedy now has an opportunity for a better life,” Barrera said.

Kate Halloran is the senior associate editor of Trial magazine.

Notes

1. A New Mexico district court declared the cap unconstitutional last March, but no appellate court has yet affirmed the ruling. Siebert v. Okun, 2016 WL 2354395 (N.M. Dist. Ct. Mar. 23, 2018).