FORT LAUDERDALE, Fla., Jan. 10, 2014 /PRNewswire/ -- Lubell Rosen partners Mark L. Rosen and Steve L. Lubell announced Wednesday the successful appellate judgment for their client, defendants OB/GYN Specialists of the Palm Beaches and Marie Morel, M.D. Lubell & Rosen and West Palm Beach appellate attorneys Rebecca Mercier Vargas and Jane Kreusler-Walsh of Kreusler-Walsh, Compiani & Vargas appealed a final judgment awarding the plaintiffs $2.5 million in damages, following a September 2011 jury trial in a medical malpractice action.
In 2011, a Palm Beach County jury awarded a West Palm Beach couple the multi-million payment to care for their son who was born with no arms and one leg. With the image of the small boy etched into their minds, jurors found Morel and OB/GYN Specialists of the Palm Beaches and Perinatal Specialists of the Palm Beaches responsible for not detecting the boy's disabilities before he was born. The amount they were awarded was less than the $9 million Ana Mejia and Rodolfo Santana were seeking for their son, Bryan.
Lubell & Rosen contended that the trial court committed reversible error by precluding the defendants from presenting argument and evidence that third trimester abortions are generally illegal in the state of Florida. In support, they claim this information was directly relevant to whether their clients fell below the standard of care and deprived plaintiffs of the opportunity to obtain an abortion.
On Jan. 8, 2014, the Fourth District Court of Appeal of the State of Florida agreed that the trial court erred in denying the defense the opportunity to argue the application of this law and reverse for a new trial on the issues of liability and causation only.
"We are very pleased with the ruling," said Rosen. "We agree with the appellate court's interpretation of Florida's abortion law."
The plaintiffs are the parents of a child born with significant birth defects. During her pregnancy, the mother suffered from episodes of bleeding and was referred to the hospital for ultrasounds. At the first ultrasound on June 4, 2008, the position of the fetus allowed for only limited views of all four extremities. As such, the ultrasound report noted the anatomy appeared normal, with the qualification that the view was limited due to fetal lie. However, the report noted other abnormalities, prompting the mother's referral to genetic counseling and an additional, more detailed, ultrasound known as a Level II ultrasound. At the genetic counseling session, plaintiffs were informed about the significance of the abnormalities seen on the prior ultrasound and presented with the option of undergoing amniocentesis to screen for genetic abnormalities. The mother declined the amniocentesis procedure, but returned on June 30, 2008, for the Level II ultrasound as recommended.
The Level II ultrasound report stated that the views of the upper extremities were limited, the hands of the fetus were not visible, and the position of the fetus's feet looked normal. The report also noted that there were "4 limbs." The impression from the testing indicated that "[t]he anatomy seen on the Level II Ultrasound appears normal. Fetal growth is appropriate. Limited upper extreme [sic], nose, lips." The mother testified that during this visit she was told that everything was "perfect."
However, when the mother gave birth on October 15, 2008, she learned for the first time that the baby had no hands, only one leg, and a fraction of a foot attached to the hip on the other leg. Plaintiffs subsequently filed suit against a number of medical providers involved in the mother's prenatal care. The allegation made against Dr. Morel and her employer, OB/GYN Specialists, was that Dr. Morel fell below the standard of care by failing to advise plaintiffs in a timely manner that the fetus had limb defects, thereby preventing them from making an informed decision as to whether they should terminate the pregnancy.
Prior to trial, defendants sought to preclude plaintiffs from presenting any evidence or argument that the Level II ultrasound caused any damages.
Following the Jan. 8, 2014 overturned malpractice verdict, attorney Bard Rockenbach of Burlington & Rockenbach of West Palm Beach, who represented the plaintiffs in the appeal, said he could ask for a rehearing to reverse the new verdict or petition the judges to send the case to the Florida Supreme Court.
About Lubell Rosen
Lubell Rosen is a law firm dedicated to providing full service representation as well as defending and protecting physicians and healthcare professionals. The firm has been named a U.S. Top Ranked Law Firm by FORTUNE Money Magazine. Lubell Rosen's headquarters are located at 200 S. Andrews Ave., Suite 900, Fort Lauderdale, FL 33301. The firm also has offices in Coral Gables, Fla., Syosset, N.Y., Upper Saddle River, N.J. and Atlanta, Ga. For more information, visit www.lubellrosen.com.
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