Ala. SC overturns summary judgment in premature baby case

Jessica M. Karmasek Mar. 18, 2011, 12:00pm


MONTGOMERY, Ala. (Legal Newsline) - The Alabama Supreme Court has reversed a court's summary judgment ruling in favor of a pediatric opthalmologist who allegedly wrote incorrect information in an eye exam book about a premature baby's need for follow-up care.

The baby, named Anna, was born on April 9, 2003 at the University of South Alabama Children's and Women's Hospital in Mobile. She was born prematurely at 23 weeks gestation, weighing 12.87 ounces at birth.

Because she was premature, Anna was admitted to the hospital's Neonatal Intensive Care Unit. Dr. Fabian Eyal was the medical director of the NICU.

Anna's prematurity placed her at risk of developing several serious medical conditions, including retinopathy of prematurity, or ROP, a condition that affects the normal growth of retinal blood vessels and can cause blindness in premature infants. ROP typically presents some time after birth.

Anna was placed on the list of premature infants at risk for ROP by pediatric ophthalmologist Dr. Leonard Rich, the board-certified ophthalmologist consulted by the NICU.

On May 21, 2003, Rich performed an ROP exam on Anna, noting on the eye form that she should be examined again in two weeks. He entered the same information in the eye exam book beside Anna's name. Using the eye exam book, the ward clerk scheduled Anna for another ROP exam.

On June 2, 2003, Rich did the same.

Then, on June 16, 2003, he noted on the eye form "tube, 2wk," indicating that Anna was on a ventilator and she should be examined again in two weeks. However, he wrote in the eye exam book next to Anna's name that she was negative for ROP and no more exams were needed. Based on that notation, she was not placed on the list of patients to be examined in two weeks.

It wasn't until nearly two months later -- Aug. 12, 2003 -- that a NICU nurse practitioner says she discovered the conflict in Rich's notations.

The notes were shown to Eyal, and he asked that Anna be reexamined for ROP. That same evening, Rich was in the NICU and he was notified that Anna needed another exam. After examining Anna, he discovered that Anna had stage III to stage IV ROP in both her eyes.

After being diagnosed with ROP, Anna went to a children's hospital, where she underwent several procedures and surgeries, but the ROP had progressed to such an extent that Anna's retina in her right eye was completely detached and her retina in her left eye was only 10 percent attached. As a result, Anna was permanently blind.

Julie Breland, Anna's mother, then sued Rich, Vision Partners, Eyal, USA and USA Health Services Foundation pursuant to the Alabama Medical Liability Act.

Justice Michael F. Bolin, who authored the Court's 59-page opinion, said Breland presented testimony by a qualified expert "with a proper evidentiary foundation" that Rich did not meet the standard of care in Anna's treatment in several respects, including writing the correct information in the eye exam book.

The Court, in its opinion filed March 11, said she also presented "substantial" evidence indicating that if Rich had not acted negligently, Anna probably would have had a better outcome.

The Court pointed to one doctor, who testified that had Anna been timely examined and the proper treatment administered, she would have had an 80 percent chance of salvaged vision.

"Although persons other than Dr. Rich may also have acted negligently, their negligence cannot absolve Dr. Rich and Vision Partners of liability for Dr. Rich's own breach of the standard of care," the Court concluded.

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