$78.5 Million Verdict After Faulty Ultrasound Caused 81-Minute Delay in Emergency C-Section

On a Sunday in August 2008, Victoria Upsey arrived at Pottstown Memorial Medical Center 36 weeks pregnant and showing signs of placental abruption. The on-call obstetrician performed a bedside ultrasound and, seeing no detectable cardiac activity, concluded the baby had died. The declaration was wrong.

The ultrasound machine was outdated and lacked the sensitivity to pick up a faint but present heartbeat. Court records established that the hospital's imaging equipment had not received required annual maintenance in at least a decade. Because it was a Sunday, no ultrasound technician was on-site; one had to be called in from home to conduct a second scan. By the time that scan detected a faint fetal heartbeat and staff moved to emergency delivery, 81 minutes had passed.

The infant was delivered by cesarean section with severe oxygen deprivation to the brain. The child was diagnosed with hypoxic ischemic encephalopathy and developed severe spastic quadriplegic cerebral palsy, requiring 24-hour nursing care for life with no prospect of independent employment.

Daniel Weinstock and G. Scott Vezina of Feldman Shepherd tried the case in the Philadelphia Court of Common Pleas before Judge Mark I. Bernstein, with Carolyn Chopko serving as co-counsel. The trial ran from April 13 to May 4, 2012. Plaintiffs argued that the hospital's failure to maintain functional equipment, and its decision not to staff an ultrasound technician overnight, were the direct causes of the delay. The jury agreed: it found the obstetrician not liable but returned a verdict against Pottstown Memorial Medical Center for $78,404,669, covering the child's future medical care, lost earning capacity, and pain and suffering, as well as the mother's emotional distress.

Judge Bernstein subsequently denied post-trial motions challenging the verdict. The court also awarded delay damages of approximately $2.5 million and attorney's fees of approximately $9.9 million under Pennsylvania's MCARE Act.