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Edward (Eddy), Nicole and Edward Bermingham shortly after Eddy’s birth. (Submitted image)

Jury awards $20 million for postpartum death

What is believed to be the largest medical malpractice verdict in state history was handed down Aug. 28 in a case where a 30-year-old woman died of sepsis six days after delivering a son.

A Hennepin County jury returned a verdict of $20.6 million against Emergency Care Consultants in a case in which the plaintiff’s attorney, Chris Messerly, had trouble completing his closing argument because the case was so sad.

Nicole Bermingham delivered her first child, Eddy, on Aug. 20, 2013. She returned to Abbott Northwestern’s Emergency Department on Aug. 24 in constant pain and with a fever of 101.8 or 101.9.

She did not see a doctor because Emergency Care Consultants, which is contracted to provide emergency care to Abbott, staffed the department with a nurse practitioner.

Blood tests showed that Bermingham’s platelet count was “alarmingly low,” said Messerly in a trial brief. That is a sign of sepsis infection or an inflammatory response, Messerly wrote, but the nurse practitioner diagnosed a urinary tract infection and did not tell the on-call obstetrician about the low platelet count. Bermingham was discharged.

About 15 hours later she returned with more symptoms, which doctors recognized as sepsis. She was treated with antibiotics and an emergency hysterectomy but died on Aug. 26.

According to court documents, the plaintiff’s expert was Dr. Harold Wiesenfeld, who testified that a proper diagnosis and treatment could have saved Bermingham’s life.

The defense called Dr. David Eschenbach to say that Bermingham died of necrotizing  fasciitis (flesh eating bacteria), which her treating surgeon refuted. The defense denied that a delay in admission or any negligence was the direct cause of Bermingham’s death.

Elizabeth Fors, who also represented Bermingham’s survivors, said that the defense stipulated to negligence but refused to take responsibility for her death. She said that Bermingham’s sepsis started out as endometritis, a common infection after a vaginal birth. The infection then proceeded untreated and caused Bermingham’s death, she said.

The jury found the nurse practitioner negligent and the negligence the direct cause of Bermingham’s death. The pecuniary loss was $500,000 for lost earnings, $50,000 for lost household services, and $1.204 million for loss of companionship, guidance, comfort and other pecuniary loss.

The jury awarded $4 million for future lost earning capacity, $400,000 for lost future household services, and $14.446 million for future loss of companionship, guidance, comfort and other pecuniary loss.

Fors said that the couple were very close and had dreams of raising their son amid his extended family in Minnesota. “But the defendant corporation chose to tear those hopes and dreams apart, and now Eddy is facing life without his mom,” Fors said.

Appeals and post-trial motions are under consideration, said defense attorney Barbara Zurek. “It’s an unfortunate tragic case and a very sad story,” she said.


About Barbara L. Jones

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