‘Courts have long recognized the danger that juries will be unfairly influenced by findings of ‘purportedly unbiased’ agencies, like the FDA’

The Iowa Supreme Court has reversed a $97.4 million verdict against an OBGYN clinic in Coralville and ordered a new trial — undoing what was believed to be the largest medical malpractice judgment for a birth trauma in state history. 

“The court unanimously agrees that a new trial is required,” according to the order.

The incident in question started with an uncomplicated pregnancy that reached 40 weeks gestation and ended in two failed attempts to deliver via forceps and the eventual use of a vacuum — which the family in their 2019 lawsuit said resulted in lasting birth injuries for their child, including a skull fracture and brain damage.

Before the verdict, Mercy Hospital of Iowa City — one of the defendants — reached a settlement with the family and paid them $7 million, saving itself from paying a larger chunk of the total amount.

And OB-GYN Associates appealed the verdict on several points, including that the verdict was “flagrantly excessive” and “so out of reason as to shock the conscience or sense of justice.” The clinic also accused the family’s lead trial attorney, Geoffrey N. Fieger, of misconduct and the District Court of erroneously admitting hearsay in the form of a “package insert” that came with the vacuum used in delivering the infant.

The High Court published its decision Friday — more than two years after a Johnson County jury awarded Kathleen and Andrew Kromphardt nearly $100 million in damages for the traumatic delivery of their son at Mercy Hospital in Iowa City in August 2018.

Citing “an erroneous admission” of hearsay evidence at the March 2022 trial, the justices concluded the accused clinic — Obstetric & Gynecologic Associates of Iowa City and Coralville, or OB-GYN Associates — was deprived of a fair trial.

Hearsay evidence

Focusing on the argument of hearsay — defined as “an out-of-court statement that is offered for its truth” — the justices pointed to language from the insert admitted at trial urging physicians not to use the vacuum if certain conditions were present, including “failed vacuum or forceps attempt.”

The insert also listed potential adverse events in the form of fetal injuries like skull fracture and intracranial bleeding.

The justices in their decision found that evidence qualified as hearsay, didn’t meet exceptions allowing it at trial, and prejudiced the jury against OB-GYN Associates.

“We agree with the clinic that the origin of the insert is significant,” according to the Supreme Court decision. “The insert was written by the manufacturer of the vacuum. Admission of the insert allowed the plaintiff to suggest that the manufacturer — a presumably neutral party — would not have approved of (the doctor’s) use of the vacuum. This could well have led the jury to give substantial weight to the insert.”

The justices also pointed to suggestions at trial that the FDA “had blessed the insert in some fashion.”

“Courts have long recognized the danger that juries will be unfairly influenced by findings of ‘purportedly unbiased’ agencies, like the FDA, who are ‘cloaked’ with a presumption of ‘governmental objectivity and expertise’,” according to the decision.

Noting the court’s consideration of closing arguments in deciding whether evidence is prejudicial, the justices said the family’s attorney put “substantial emphasis on the insert, its presence among the physical exhibits, its categorical prohibitions, and the adverse events that the vacuum might cause.”

“Read it,” attorney Fieger said in his closing arguments, according to the decision. “Go back in the jury room. He has every hemorrhage they warn about. Do not initiate the vacuum. These words are pretty clear. You don’t have to be a doctor to know what they say, you can be a nurse. Failed vacuum or forceps attempt, don’t do it. Don’t do it. Don’t do it. If you do it, here’s what will happen and that’s what happened.”

Attorney misconduct

The justices went on to address Fieger’s alleged misconduct — mentioned in the appeal — that prompted at least seven motions for a mistrial.

“Although the District Court did not pronounce a mistrial based on Fieger’s actions, his conduct was both uncivil and disrespectful to his opposing counsel and the presiding judge,” Chief Justice Susan Christensen wrote.

Among the examples was Fieger’s routine offering of personal opinions on the defense’s arguments and mocking the idea a jury could possibly find them truthful.

“Perhaps the most egregious conduct occurred during closing argument when Fieger also improperly encouraged the jury to punish the defendants for failing to take responsibility,” Christensen wrote.

He accused the defendants of being only interested in money rather than “admitting mistakes.“

“These statements encourage the jury to act outside their proscribed duties and punish the defendant,” Christensen wrote. “That is not at all the role of a juror. The role of a juror is to consider the law and facts of the case and, if applicable, award damages when a party has been legally harmed.”

Fieger’s conduct throughout trial, she said, was unacceptable and not the first time.

“He was admonished repeatedly by the judge for his statements,” she said. “In spite of those admonishments and a long history of similar conduct in other states, he continued to violate basic rules of professionalism and civility.”

Jury verdict unpaid

Tens of millions remain due on the judgment.

And between the verdict and the Supreme Court decision, both OB-GYN Associates and Mercy Iowa City filed for bankruptcy — compelling additional legal battles, including between the clinic and its insurance company.

Mercy, for its part, listed the Kromphardts in its bankruptcy filing as a “nonpriority unsecured creditor” — along with nearly 400 other individuals or companies at risk of being paid last or possibly not at all.

When asked whether Mercy still owes the family money, hospital officials told The Gazette: “Mercy does not owe money on the settlement amount as agreed to be paid.”

However, they said, “We do not discuss former or pending litigation.”

Vanessa Miller covers higher education for The Gazette.

 

 

 

 

 

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