Rosen defends Ob/Gyn in wrongful birth case for failing to detect missing limbs in utero.

The Florida Fourth District Court of Appeals has reversed the $2.5 million verdict that a Palm County judge awarded to parents whose son was born with serious deformities, after determining that the trial judge erred in limiting the defense’s testimonies. With this reversal, attorneys Steven L. Lubell and Mark L. Rosen, Florida malpractice defense attorneys at Lubell Rosen, have successfully secured a new trial for their clients, Marie Morel, M.D., and OB/GYN Specialists of the Palm Beaches.

What Brought About the Case?

Ana Mejia, the plaintiff, had the first ultrasound for her pregnancy on June 4, 2008, after she experienced episodes of bleeding. The position of the fetus at the time only showed limited views of the legs and arms, but the report noted that the anatomy – or what could be seen – appeared normal. However, due to other genetic abnormalities, Mejia was advised to go to a genetic counseling session and schedule a Level II ultrasound, which is more thorough and detailed. At that session, she was given the option to undergo amniocentesis to screen for abnormalities, but declined the procedure.

Dr. Morel performed the Level II ultrasound on June 30, 2008. At that time, the views of the fetus' upper extremities were limited. The ultrasound did not explicitly show the fetus’ hands, but the positions of the feet seemed to be correct. According to the report, the fetus had four limbs, and “[t]he anatomy seen … appears normal. Fetal growth is appropriate. Limited upper extreme [sic], nose, lips.”

But when Mejia’s son was born on Oct. 15, 2008, he had no hands, one leg, and a partial foot attached to his other leg at the hip. Mejia and her husband, Rodolfo Santana, sued Dr. Morel and her employer, OB/GYN Specialists, for failing to uphold a standard of care in their review of the Level II ultrasound, and for eliminating their ability to explore options for terminating the pregnancy.

The crux of the trial involved the timeframe used to track how far along Mejia was in her pregnancy when she visited Dr. Morel for the second ultrasound. Because Florida state law prohibits most abortions performed in the third trimester of a woman’s pregnancy, commonly known as “late term” abortions, determining whether Mejia was in her third trimester on June 30 was crucial to proving whether Dr. Morel’s interpretation of the ultrasound blocked Mejia from seeking a legal abortion.

Why the Court of Appeals Disagreed

However, at the original trial, Palm Beach Circuit Judge Lucy Chernow Brown ruled that Lubell and Rosen could not instruct the jury on Florida’s abortion laws. Although it is not defined in the state’s laws, the standard start date for a pregnancy is the date of the mother’s last menstrual cycle. Using this calculation, Mejia was one day into her third trimester on June 30, and would not have been able to obtain an abortion under Florida’s laws. But because Lubell and Rosen could not present this information to the jury, their argument for Dr. Morel’s lack of culpability was weakened.

On appeal, the Fourth Circuit judges ruled that blocking such relevant information was an error on Judge Brown’s part, and ordered a new trial for the case, at which the defense attorneys could present all the information needed for the jury to understand the scope of the situation. The appellate court also agreed with the standard calculation of pregnancy start dates.

Lubell, Rosen and their colleagues at the firm represent Florida doctors and medical professionals who have been charged with malpractice or negligence in their practices. For more information regarding Lubell Rosen’s services, or your case, contact one of our medical malpractice defense attorneys today.

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Mark L. Rosen,  Esq.

 [email protected]
 (954) 880-9500
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