A Norwalk couple was awarded $58.6 million Wednesday, a record for a single incident of medical malpractice in Connecticut, in a case involving an obstetrician accused of waiting too long to perform a cesarean section and a boy who was permanently brain-damaged.
The jury at Superior Court in Waterbury sided with Domenic and Cathy D'Attilo, whose son Daniel, now 8, has had severe cerebral palsy since he was born on Feb. 2, 2003. He is fed through a tube, uses a wheelchair, is unable to eat, talk or walk and is incontinent.
"When my son was born, he was born not breathing, blue, limp," said Cathy D'Attilo, the mother who sued her obstetrician, Dr. Richard Viscarello, and his practice, Stamford-based Maternal-Fetal Care PC. "He had seizures; he was on a ventilator. So, we knew something terrible had happened to Daniel."
D'Attilo, her husband and son said in their lawsuit that Viscarello did not perform timely incisions to relieve the upper uterine area, delayed the cesarean section, didn't create space for an atraumatic delivery and caused a delay in the delivery that led to permanent brain damage.
"It was discovered that he had lost oxygen to his brain, and suffered a brain injury," D'Attilo said.
The defendant's attorney, James Rosenblum of Rosenblum Newfield LLC in Stamford, said he will appeal if Judge Kevin Dubay allows the jury's decision to stand.
"He followed the rules, and the jury ignored that," Rosenblum said of the doctor.
The jury awarded the D'Attilos $8.6 million in economic damages for past and future care of their son, which is the amount their attorneys requested and demonstrated in court. The jury also awarded $50 million in non-economic damages, which was at the jury's discretion. Additionally, there's a possibility of interest, which attorneys familiar with insurance law said adds up to millions more.
Daniel is Cathy D'Attilo's only child. Her husband, Domenic, has a daughter from a previous marriage. The couple had tried for six years to have a baby before resorting to in-vitro fertilization.
"It was a long road just to get pregnant," Cathy D'Attilo said.
Daniel is now a full-time job for his mother.
"Pretty much everything is dedicated and surrounded around Danny and his needs, and we do them with pleasure because he's our son. We love him," she said.
The now second-highest single-incident medical malpractice award in Connecticut also involved an obstetrician delivering a baby in 2003 at Stamford Hospital.
In 2008, a Stamford jury awarded $38.5 million in a lawsuit that found obstetrician Corinne de Cholnoky liable for waiting too long before she performed a cesarean section to deliver the second child in a pair of twins for Elizabeth Oram, according to the Connecticut Law Tribune. The first child, Emma, was fine, but the second child, Spencer, had severe brain damage from the delivery, according to the Law Tribune.
In that case, the doctor named Stamford Hospital as an apportionment defendant. She alleged that the anesthesiologist and operating-room nurses slowed the cesarean delivery, according to the Law Tribune. That case is under appeal, said Rosenblum, who represents that defendant, too.
Daniel D'Attilo was delivered on Feb. 2, 2003, and Oram's child, Spencer, was delivered two months later on April 4, 2003.
But in the D'Attilos' case, attorneys on both sides agree there is no connection to Stamford Hospital.
The hospital declined to comment because it was not named as a defendant in the case.
The attorney for the D'Attilos, Kathleen Nastri of Koskoff, Koskoff & Bieder in Bridgeport, said, "Stamford Hospital was a defendant in our case and we withdrew against Stamford Hospital because it appeared clear to everyone that they had not done anything wrong."
"And in the de Cholnoky case, Stamford was in the case through the verdict and the jury found in their favor," Nastri said. "So, there is no criticism implicit or explicit in either case."
Rosenblum said the theme in the two cases is that children with brain injuries are used to sway juries into awarding millions of dollars, a phenomenon that has been playing out in courtrooms for decades across the nation.
"The main parallel is that the jury goes ballistic," Rosenblum said.