WILMINGTON, Del. (Legal Newsline) - A Delaware hospital must defend itself against claims it is responsible for a mother’s transmission of HIV to her son during birth and it can’t present expert testimony that the baby was most likely infected while still in the mother’s womb.
Tameka Richardson sued Christiana Health Care Services on behalf of her grandson, accusing the healthcare system of negligence for failing to test the boy’s mother for HIV at 36 weeks of pregnancy. Richardson’s expert witness is prepared to testify the failure to test violated the standard of care and increased the risk the baby would be infected with HIV during the birth process.
Christiana hoped to call physicians who would testify that there was a more than 50% chance that the mother passed the disease onto her son in utero. But Delaware Superior Court Judge Jan R. Jurden excluded their testimony on that issue, agreeing with plaintiff lawyers that the physicians couldn’t cite medical literature to support their opinions. The court also barred Christiana’s lawyers from presenting any evidence the mother was partly responsible for her son’s illness because she had failed to comply with medical recommendations regarding HIV in the past.
The court’s decision clears the way for a trial on the question of whether Christiana medical personnel are liable for the HIV status of the child. One of the medical center’s experts, pediatric infections disease physician Colleen Cunningham, testified that it was impossible to know whether the baby was infected in utero or during delivery or whether it mattered if the mother was infected with HIV before or during pregnancy. The mother says she doesn’t know when she contracted the disease.
Drs. Neil Silverman and Harold Wiesenfeld planned to provide their expert opinion that the most likely time of transmission was before birth, eliminating arguments Christiana caused the child’s condition.
The doctors’ statistical opinions could mislead the jury, the court said however, since “they invite the jury to infer that any alleged negligence could not be the proximate cause of the injury in this case because that injury was statistically likely to happen anyway.” The court cited a 1994 decision in which a doctor wasn’t allowed to tell jurors 75% of chronic back pain patients “get better” in six weeks since the doctor didn’t offer any basis for placing the plaintiff in that 75%.
The plaintiffs also complained that the medical center was offering two expert witnesses who would provide duplicate testimony. The court rejected that argument, however, saying each one would rebut a different aspect of a plaintiff witness’s testimony.
“That said, the court will not allow `piling on’”, the court added, however. “There does come a point when the number of experts and the duration of their explanations of identical opinions becomes prejudicial to the other side.”
The court also rejected a plaintiff challenge to Dr. Silverman, saying that while he hasn’t practiced as an obstetrician since the 1990s, he is a nationally known expert on HIV testing in pregnancy and qualified to testify about the standard of care in this case.
The plaintiff won on the question of comparative negligence, with the court excluding testimony suggesting the mother shared some blame because she hadn’t complied with her physician’s recommendations on HIV care before her pregnancy and thus wasn’t likely to have done so while pregnant even if she knew she had been exposed to the disease. The health center also was barred from arguing the mother failed to mitigate damages because that is an affirmative defense it failed to raise in its answer to the complaint.