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By Matthew Mosk
From WashingtonPost.com
November 27, 2004
The phone call that ultimately would alter the path of Kevin
Kearney's medical career brought him to a hospital delivery room on
Maryland's Eastern Shore on an August evening 16 years ago.
The obstetrician arrived to find an 18-year-old woman, well into
labor and buckling under the weight of a 42-week pregnancy. She
begged for a Caesarean section.
Kearney drew on his decade as an obstetrician, gently counseling
her, "Have it on your own."
Cascading from that decision was a marathon delivery marred by
complications: The baby became so tightly wedged in the birth canal
that Kearney was forced to launch a desperate struggle to dislodge
him. The delivery would leave permanent injuries. Aug. 24, 1988,
marked the birth of Donnette Dennis's first son, Richard. It also
marked the start of a legal battle that reverberates today, as
political leaders in Annapolis ponder medical malpractice reform.
Like so many cases across the country, in which bad outcomes in the
delivery room lead to a courtroom, the desire to assess blame for
Richard Turner Jr.'s damaged right arm and scarred right eye became
grist for litigation.
On one side was Kearney, a Johns Hopkins University-trained
obstetrician and gynecologist who was one of the last remaining
specialists performing high-risk deliveries in rural towns from
Ocean City to Easton. On the other was Dennis's attorney, John
Schochor, whose Baltimore firm has filed more malpractice cases over
the past two decades than any other law office in Maryland.
Today, years after the jury reached its verdict, those on both sides
of Dennis v. Kearney say the case holds valuable insights for
politicians in Annapolis.
Both Kearney and Schochor have spent time this year lobbying
Maryland's leaders over the fast-rising malpractice insurance rates
that have prompted, by the estimate of Maryland's medical society,
26 of the state's 750 obstetricians to close their practices. Gov.
Robert L. Ehrlich Jr. (R) has predicted that a new wave of closures
will follow a 33 percent rise in the cost of malpractice insurance
that takes effect Wednesday.
In letters and during private meetings with key lawmakers, Kearney
argued for limits on jury awards in malpractice suits. In sessions
with Ehrlich, Schochor called for doctors to reduce what he said are
the staggering numbers of medical errors being committed by a
handful of the worst offenders.
Both positions trace, in part, to a split-second decision made in
that delivery room 16 years ago.
A Certain Lawsuit
The corridor of Kevin Kearney's spartan Salisbury office is a
gallery of tiny faces, snapshots of the babies he has delivered and
testament to his work.
Kearney is a father of four whose soothing brogue betrays his Irish
roots. He landed in the United States by way of Johns Hopkins, where
his grandfather, an obstetrician, was a visiting professor, and he
set out to practice one of the most rewarding branches of medicine,
where most patients are overjoyed with the outcome -- a healthy
baby.
He began his practice in 1977 and opened the region's only clinic
for high-risk pregnancies. Soon, he and his colleagues were
delivering four babies a day.
It was on a summer evening in 1988 that the call came to oversee
Dennis's delivery. Kearney glanced through her charts and said he
saw little to warrant a Caesarean. This being her first baby, he
surmised, it might take time.
But the labor dragged on for hours. When the baby's head finally
started to emerge, the birth stalled, this time by a rare
complication called shoulder dystocia -- which occurs when the
shoulder becomes locked in the birth canal.
"You don't forget the moment these sort of catastrophic events
occur," Kearney said later. "Shoulder dystocia, it's what you live
in fear of, literally."
The longer the baby was stuck, the more risks mounted. With his
umbilical cord compressed and his lungs unable to expand, Dennis's
baby could not breathe. Move too slowly, Kearney knew, and the
infant's brain would be starved of oxygen. Twist the wrong way, and
risk damaging the nerves running through the shoulder to the chest
and arms.
As he plotted a course, "minutes felt like hours."
He first tried to get the baby out by force. Nurses pushed back hard
on Dennis's legs and pressed downward on her abdomen. And Kearney
pulled -- hard -- on the baby's head, first using forceps, then his
hands. Nothing.
Kearney's next maneuver: to reach under the baby's armpit with one
finger, and use it like a hook to yank one arm through the birth
canal. That freed up room for the baby to emerge. In a matter of
seconds, Richard Turner was born.
Kearney visited Dennis the next morning. By then, he had seen the
lack of tone in Richard's right arm.
"He just told me what had happened in the delivery room, that he was
sorry for what he had done," she said. "He was sorry about what
happened to Richard's arm."
Kearney said he left the hospital heartbroken. He doesn't remember
apologizing to Dennis but said that if he did, it wasn't to convey
that he "goofed." In fact, he felt certain he handled the procedure
correctly.
It may be the most vexing aspect of shoulder dystocia, he said. If
the baby is born with an injury, there is no way to know whether it
occurred during delivery or during the baby's descent. The only
certainty, Kearney believes, is that the doctor handling the
delivery will be sued.
Say the words "shoulder dystocia," Kearney said, "and you'll see a
smile cross the face of any plaintiff's attorney."
Lifelong Financial Burden
John Schochor greeted the young woman from the Eastern Shore in the
foyer of the Paulton, the restored brick mansion his firm owns in
Baltimore.
Over three decades as one of Maryland's leading malpractice
attorneys, Schochor had seen hundreds of birth injuries that started
when a baby's shoulder became trapped. So when Dennis sank into a
deep leather chair and handed him her son's medical charts, he knew
just what to look for.
The pediatrician's diagnosis was Erb's palsy. Her son had "virtually
no independent use of his right arm or hand," the chart said. "His
arm is held at an awkward angle, close to his body, and his elbow
and wrist are flexed. . . . The arm is wasted along its entire
length and it is clear that this will become more noticeable."
When he finished reading, Schochor told Dennis exactly what she had
suspected.
"This case screamed out for a Cesarean section," Schochor said.
"This doctor elected not to do it. He then accelerated the birth
process by pulling down on the baby with forceps and impacting the
shoulder. He caused a lifelong injury to Richard."
Of the 2,000 to 3,000 contacts his practice receives each year,
Schochor's firm will take only about 80 to trial or settlement. This
case seemed worth exploring.
Before he took the case, Schochor had Richard's medical records
evaluated by three board-certified obstetricians. All agreed "that
this is a blatant case of medical malpractice," he recalled, and
"that this young man, Richard Turner, should have two good arms."
Over the two years spent preparing the malpractice case, the
attorneys also amassed proof that the injury would be a financial
burden for Richard and his family. At the firm's expense, the
toddler saw an Erb's palsy specialist in Delaware, a hand expert in
Baltimore and a rehabilitation nurse in Pennsylvania. They
interviewed his kindergarten teacher, who wrote, "Richard struggles
to do any activity that involves a pencil or crayon . . . and
suffers from feelings of inadequacy due to his crippled hand."
Schochor hired a vocational specialist and four forensic economists
to study the financial burden Richard faced. "He will be unable to
fully participate in the job market," one report predicted. By age
65, he'll have faced $86,272 in medical costs. Over a lifetime, his
medical costs and lost job opportunities could total $614,775.
Something for the Baby
As he entered the courtroom in April 1995, Kearney believed his
position was strong.
He had turned down a settlement offer and was armed with witnesses
who could cite the prevailing research on shoulder dystocia --
indicating that these injuries typically are caused by pressures
within the birth canal before the doctor ever touches the baby.
This was the crux of the defense. And it would seem persuasive,
Kearney said, until Dennis escorted 6-year-old Richard into the
courtroom.
"Seeing this child walk into the courtroom with a palsied arm, it
was just shattering from the word go," Kearney said. "A baby with a
birth injury comes into that courtroom, and the sympathy factor
sweeps all the objectivity away."
Schochor saw a different picture.
His medical experts portrayed a doctor whose decisions were outside
the mainstream of medicine. First, Kearney failed to recognize that
Dennis needed a C-section. Then, they testified that he exerted
pressure in a manner bound to cause injury.
As for the notion that sympathy swayed the jury: "Total nonsense,"
Schochor said. "You had a young, indigent African American child on
one side and Dr. Kearney with his lovely Irish lilt on the other.
Ask me where an Eastern Shore jury's going to lean."
Along with medical testimony, attorneys from Schochor's firm
presented two other pivotal pieces of evidence. The first, from
Kearney's deposition, suggested that he panicked during the birth.
He told attorneys he pulled down hard on Richard's head -- harder
than during typical deliveries. The second critical detail:
Kearney's apology. Why would he seek forgiveness if he had done
nothing wrong?
It took two trials for Schochor to find the result he was after. The
first ended in a mistrial after a juror resisted faulting the
doctor. Other jurors reported that the holdout had used racial slurs
to describe Dennis. The judge ordered a second trial, and at this
one, in 1996, jurors concluded that Kearney had been negligent.
Richard, then 8, was awarded $637,372.
Although Dennis was thrilled with the outcome, it did little to
resolve her immediate needs. She was working as a cashier. Her
then-husband worked in housekeeping at a small hotel.
Money was so tight that the couple went for long periods without a
working telephone.
And Dennis had to pay legal bills of $258,000. The remaining
$379,000 was placed in a trust, available to Richard when he turns
18.
Walking out of the courtroom, a juror approached Kearney and put her
hand on his shoulder. "She said to me, 'Dr. Kearney, don't feel bad.
We just felt we had to give something to the baby.' "
Reality Dawns
Kearney did not let the court's ruling disrupt his practice. Over
the next several years, in fact, his caseload grew. And so did his
legal exposure.
He began doing more Cesarean sections out of an abundance of
caution. Still, he was sued six more times, including a second case
involving shoulder dystocia, which he settled. By contrast, the
average OB-GYN is sued 2.6 times over a career, according to the
American College of Obstetricians and Gynecologists. His insurance
bills crept up.
Then in December 2003, his carrier wrote to say that the company was
getting out of the malpractice insurance business and that he would
be dropped.
"I tried everywhere to find new insurance, but they kept giving me
these outrageous quotes," Kearney said. One company offered to cover
him for $150,000, more than double the region's average rate.
Another set the premium at $200,000 "because I had notches in my
gun." For six weeks, Kearney tried to resolve this crisis as 150
pregnant patients waited in limbo.
Reluctantly, he dialed each one, arranged to transfer their charts
and pledged to track their progress. At 56, he had delivered his
last baby.
Though his small gynecological practice will keep him afloat until
retirement, he has become bitter. He's taped a bright orange bumper
sticker to the front door of his office. It says: "Become a doctor:
Support a lawyer."
End of a Tradition
Late in the summer, representatives for the state's doctors, lawyers
and insurance carriers gathered with Ehrlich to discuss the
malpractice crisis.
Schochor spoke on behalf of the trial bar. "To be out there gunning
for victims and the lawyers, it's the wrong focus," he said.
Schochor's position is that limits on jury awards hurt not only
lawyers but the victims of malpractice -- people such as Richard
Turner, whose family continues to struggle with medical bills. Court
records show that Richard's mother, who has remarried and now goes
by Donnette Corbin, wrote to the clerk this year to ask a judge's
permission to withdraw $10,000 from Richard's account "to pay some
bills." Her request was denied.
Penalizing victims makes no sense, Schochor said, but several
provisions in Ehrlich's proposal would do just that. Even more
significant, Schochor said, are the bad doctors who go
undisciplined. He places Kearney in this category.
"I have nothing against this doctor," Schochor said. "But the world
is a safer place if he gave up obstetrics, in my opinion."
Kearney said he has lain awake nights, wondering whether this was
all his fault. "I wish in a way it was that simple," he said. It
would be better "if the lawsuit proved I was incompetent. If that
was the case, I would be grateful. But I've never heard any of my
colleagues or anyone besides these lawyers say that. And I don't
believe it."
Kearney has never been sanctioned by the Maryland Board of
Physicians.
In March, Kearney drove to the State House to tell lawmakers his
story. He noted how ideas such as Ehrlich's proposal to make
apologies inadmissible in court could have kept his words from being
twisted. "I was given token time," he said. "There was no changing
their minds."
Perhaps the only subject for which he found some agreement in
Annapolis was the need to act. And soon.
Not only are obstetricians closing their practices, but the
specialty is no longer the draw it once was. Of the 128 students
graduating from the University of Maryland Medical School in 2003,
none chose obstetrics. And though the previous three generations of
Kearney's family have delivered babies, his son plans to specialize
in orthopedics.
Staff researcher Bobbye Pratt contributed to this report.
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