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$________ PLUS CONFIDENTIAL Medical malpractice - Hospital negligence - Breach of standard of care - Physician fails to sign and state the cause of death on fetal death certificate of stillborn child - Delays in cremation and release of remains to family - Emotional distress.

San Diego County, California

The plaintiffs claimed emotional distress after the attending physician at the birth of their stillborn infant caused delays in the cremation of their child by failing to both sign the death certificate and state cause of death. Both the mother and the father of the child brought suit individually against the attending physician legally responsible for signing the death certificate and against the hospital. The defendant physician claimed he met the standard of care and did not cause the distress alleged by the plaintiffs.

The plaintiffs’ stillborn infant was delivered on September 24, ________ at Sharp Chula Vista Medical Center, and the family did not receive the cremated remains of the child until October 19, ________. On September 25th the infant’s preliminary autopsy report was complete and the pathologist then paged the defendant to inform him of such and to discuss the possible cause of death. The defendant never responded to the page and the plaintiffs contended the defendant was negligent in failing to follow-up with neither the pathology report nor the final autopsy report.

On October third the fetal death certificate worksheet was faxed to the defendant to finalize the cremation process. The defendant was to state the cause of death, sign it and return it to the mortuary. When the defendant never responded to this fax, both the hospital and the mortuary again faxed the death certificate worksheet the following day.

Finally, on October 11th the mortuary again faxed the worksheet to the doctor’s office and stated on the cover sheet, "Need Cause of Death ASAP." When the defendant failed to respond to this fax, a hospital staff member went to the doctor’s office and had him sign a death certificate; however, the death certificate was a blank one, which the mortuary was unable to process because it lacked a cause of death. On October 15th, the hospital asked a physician who was not the attending physician to sign the death certificate stating the cause of death, which was listed as "intrauterine fetal demise," and on October 19th the cremated remains were turned over to the plaintiffs.

At trial, the defendant claimed that he never received any of the faxes and that because the mother of the child was not his regular patient and was seen as an emergency room patient, he did not remember her or the delivery of the child. He additionally testified he did not recall a specific instance when he had pulled the medical file or looked at the autopsy report. The defendant stated at trial that on average he delivers five stillborn infants in a year’s time, which the plaintiffs claimed would, therefore, logically make the stillbirths memorable events in his career. Additionally, the plaintiff argued that even with the defendant having no memory of the plaintiff or the birth, at the time of the stillbirth he had an obligation to follow-up with the plaintiffs and put his staff on notice that documents regarding the infant’s death would be coming through.

The defendant additionally claimed he could not have been responsible for signing the death certificate until after October 4th, when the final autopsy report was completed, as he could not state the final cause of death without the report. The plaintiffs countered the defendant’s argument with experts who stated the description of "intrauterine fetal demise," was so general that it could have been listed on the death certificate prior to the final report and amended later if needed. The plaintiffs argued the defendant would have known that it was an intrauterine fetal death the moment he delivered the child, and therefore, he could have immediately stated this cause of death on the certificate.

The mortuary testified the time required to release remains to family members usually spans no more than a week, and to additionally substantiate the plaintiffs’ claim of the defendant’s negligence, the physician who was asked to sign the death certificate for the defendant testified it was the first time in his more than 30 year career that he had signed a death certificate for another physician.

At trial, the mother was unable to personally present herself to testify as she was a Mexican citizen and unable to cross into the United States at that time. The judge did grant the plaintiff’s motion asking to allow her to testify either live in the courtroom via tele-video conference or by a taped deposition done pre-trial and presented to the jury. The judge allowed the plaintiff’s attorney to travel to Mexico and tape the mother’s testimony, but the plaintiff’s request to use it at trial and present it to the jury was denied; therefore, the jury never heard from the infant’s mother regarding the distress caused to her in the delayed release of the infant’s remains.

The defendant requested a non-suit on the mother’s case against him on the basis of her inability to comply with a subpoena to testify. This was denied and the plaintiffs received $________ from the defendant physician and settled pre-trial with the hospital for an undisclosed amount.

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