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In Delivery Room, Baby and Doctor at Risk

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."

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.

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?

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