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In Delivery Room, Baby and Doctor at Risk

Md. Case Highlights Issues in Malpractice Debate

By Matthew Mosk
Washington Post Staff Writer
Saturday, November 27, 2004; Page A01

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.

Kevin Kearney, at his Salisbury office, is giving up obstetrics because the malpractice insurance costs are too high. (James A. Parcell -- The Washington Post)

Ehrlich's Proposal

Maryland Gov. Robert L. Ehrlich Jr. has prepared draft legislation that he says will help resolve the medical malpractice insurance problem. His proposal includes the following provisions:

• It allows insurance companies to pay jury awards in periodic payments over time, rather than in a lump sum.

• It provides that an apology or expression of sympathy from the doctor is inadmissible as evidence of fault.

• It limits attorney's fees to 40 percent of the first $200,000 of any judgment, 33 percent of the next $200,000, 25 percent of the next $200,000 and 15 percent of anything over $600,000.

• It allows the Board of Physicians to take disciplinary action against a doctor based on a preponderance of the evidence, rather than the current burden, which requires clear and convincing evidence of malpractice.

• It requires the parties in a court case to participate in upfront mediation to resolve their dispute before going to trial.

SOURCE: office of Gov. Robert L. Ehrlich Jr.

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.

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