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Memorial pays $700,000 settlement to injured child of undocumented immigrant

July 6, 2011
photo - Maria Gallardo and her daughter, Dulce Photo by Courtesy William Fischer
Maria Gallardo and her daughter, Dulce Photo by Courtesy William Fischer 

City-owned Memorial Health System paid $700,000 to settle a lawsuit filed by an undocumented immigrant from Mexico whose baby allegedly suffered severe brain injuries during delivery four years ago.

Notice of the settlement, which was paid sometime in the April-June quarter, was contained in a quarterly legal report written by the Colorado Springs city attorney and provided to the city council.

An attorney for Maria Gallardo, who sued the city of Colorado Springs and the United States of America for medical malpractice last year, said the amount Memorial paid could have been a lot higher.

“The hospital settlement was only for the baby, not for the mother,” Springs attorney William Fischer said Wednesday. He said the mother's window of opportunity to file a claim on her own behalf under the Government Immunity Act had closed by the time she had filed. She has until her child's 18th birthday to file a claim on behalf of the baby, he said.

Memorial paid $25,000 for its deductible, and the rest of the settlement was paid by its insurer, Memorial spokesman Brian Newsome said.

“We agreed to a settlement, which we felt was in the best interest of the family,” he said in an email. “We will not discuss detailed information about the care of these patients, out of respect for the family. Our thoughts are with them.”

Fischer said the settlement with Memorial concerns only the hospital's nursing staff. To pursue a claim against the doctor, he said, Gallardo will turn her attention to the federal government.

Dr. Jeffery McCutcheon, who delivered Gallardo’s baby at Memorial Hospital, works for Peak Vista Community Health Centers. Peak Vista is, in government parlance, a Federally Qualified Health Center. As such, “Defendant USA, in operating PVCHC, is required to provide reasonable and appropriate care and treatment of its patients,” the lawsuit states.

Fischer said a trial date is scheduled to be set soon, but the U.S. Attorney’s Office, which is defending the federal government, asked Fischer and his co-counsel, Michael Goodman of Denver, to submit a settlement offer.

Still, “we’re preparing to go to trial,” he said.

According to the lawsuit , filed in U.S. District Court in Denver:

On Feb. 11, 2007, Gallardo was admitted to Memorial Hospital for planned induction of labor and delivery of her daughter, Dulce Rodriguez-Gallardo.

Gallardo claimed that Memorial nurses and McCutcheon “fell below the standard of care” when they failed to, among other things, properly interpret fetal heart monitoring strips that showed the baby in distress during labor.

“The fetal monitoring strips indicated ominous warnings,” the lawsuit states. “The nursing staff and attending physician were on notice that they would be dealing with a severely stressed and potentially oxygen depleted baby.”

The nurses summoned McCutcheon about 15 times, “but the doctor just wanted to continue and let her have the baby naturally,” Fischer said.

“To compound the situation, they were having the mother hold her breath. By holding her breath, it’s also further depleting the oxygen going to the baby,” he added.

Rather than perform a cesarean section or ask the mother to stop pushing to evaluate the situation, Gallardo was instructed to continue to push, Fischer said. Dulce was delivered vaginally about 1 ½ hours after pushing was initiated, according to the lawsuit.

Neither McCutcheon nor a Peak Vista spokeswoman returned messages seeking comment.

Dulce was born with severe brain injuries “as a direct and proximate” result of medical negligence, the lawsuit states.

Genetic testing showed that "there was absolutely no genetic defect causing this problem," Fischer said.

“Dulce cannot stand, sit or walk, and never will,” the lawsuit states. “It is highly improbable that Plaintiff Dulce will ever be able to live an independent life and will require constant medical care and treatment and daily care and supervision.”

Now about four years old, Dulce doesn’t have the intellectual level of beyond six months, Fischer said.

“She’s able to hold her head up now,” he said. “She’s a beautiful little girl.”

Dulce is a spastic quadriplegic, he said.

“She will be dependent on others for her existence for the rest of her life, and that’s 24/7,” Fischer said.

Fischer said Gallardo, who still lives in Colorado Springs, is an undocumented immigrant from Mexico who plans to continue to live in Colorado Springs.

"The baby is a citizen because it was born here," he said.

Despite being an undocumented immigrant, Gallardo has rights, Fischer said.

“The mother and the baby are still entitled to medical treatment within the standard of care, whether they’re a tourist here, whether they’re here undocumented, no matter what,” he said. “As a human being, they’re entitled to proper medical care.”

Fischer said the baby’s father was deported to his native Mexico, though he said he did not know when.

“I think it was a weapons possession or something like that,” he said.

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