Union County Jury Awards $20 Million Over a Four-Day Delay in Delivering a Growth-Restricted Twin
After trial: Judgment of $6,599,625.34 was entered against the remaining defendant in January 2019 after the jury reapportioned fault, and the Appellate Division affirmed in September 2020.
Won by The Donnelly Law Firm.
A maternal fetal medicine specialist read ultrasound films four days late, and the Tapias' daughter was delivered four days after she should have been, with permanent brain damage from oxygen deprivation. A Union County jury returned $20 million on October 24, 2018, and the Appellate Division affirmed the judgment in 2020.
What happened
Maria Tapia was carrying twins in 2006. Her obstetrician, Abu S. Alam, referred her to Garry Frisoli, a maternal fetal medicine specialist, for prenatal ultrasound testing.
A twenty-week anatomy scan in December 2006 was within normal limits and showed both twins growing at the same rate. On March 2, 2007, at thirty-two weeks, that picture changed. The estimated fetal weight of Twin A, the Tapias' daughter, had dropped from the fiftieth percentile to the sixteenth, while her brother had climbed to the sixty-sixth. Frisoli calculated the discordancy at 32 percent and noted that the girl's abdomen was significantly smaller, which he called suggestive of asymmetric fetal growth restriction. A biophysical profile and umbilical artery Doppler studies were normal, so he asked to see Maria again in two to three weeks and recommended that Dr. Alam run weekly non-stress tests in the meantime. Alam never ran them.
The next round of testing was performed on March 22, 2007, by an ultrasonographer while Frisoli was out of the office. He reviewed the images when he returned on March 26. The twins remained discordant, but the girl had gained 500 grams and the other studies looked reassuring, so he set a follow-up for a week later.
On March 30, 2007, the Doppler studies were abnormal, showing resistance to placental blood flow. Frisoli ran a non-stress test on the spot, got a non-reactive result, walked Maria to labor and delivery himself, and told the covering physician to deliver that day. The twins were born hours later.
The family's case was that the delivery should have happened four days earlier, on March 26, when Frisoli read the March 22 films. Their experts testified that where there is intrauterine growth restriction, a normal biophysical profile is good for only about four days, and that across those four days the girl endured increasing cerebral hypoxia that left her with permanent brain damage. Frisoli's defense was gestational alloimmune liver disease, which he argued could not be diagnosed before birth and was the actual cause.
Alam settled before trial. Frisoli was the only defendant left when opening statements were delivered on September 27, 2018, in the Law Division in Union County. The trial nearly collapsed. Frisoli's designated trial counsel was hospitalized with an ischemic stroke on October 5 and asked for a mistrial. The judge denied it, adjourned the proceedings for two weeks, and resumed with summations on October 23.
The jury's first verdict was internally inconsistent, the product of a verdict sheet that had omitted the instruction to stop deliberating on a "no" answer to the substantial factor question. The judge reinstructed the jury on proximate cause and gave it a corrected sheet. On October 24, 2018, the jury returned $20 million and apportioned fault 70 percent to Alam and 30 percent to Frisoli. Dennis M. Donnelly of The Donnelly Law Firm tried the case for the family. The award was $11 million for future care, $8 million for disability and loss of enjoyment of life, and $1 million to the parents for loss of consortium.
Frisoli moved for a new trial and to supplement the record with certifications about his lawyer's condition. The judge denied both motions. On January 31, 2019, she entered judgment against him for $6,599,625.34, consisting of his $6 million share of the award plus his proportionate share of stipulated medical bills, prejudgment interest, and offer of judgment penalties. Frisoli appealed on five points, including the mistrial rulings and the defective verdict sheet. The Appellate Division affirmed on September 28, 2020, in an unpublished opinion, docket A-2611-18T1.
Sources
This account is drawn from contemporaneous public reporting and the court record.
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