Choosing Not to Timely Diagnose Fetal Abnormalities Leads to $1.4 Million Cook County Jury Verdict

Irena Dujmovic-Terman was seven weeks pregnant when she began prenatal care with the defendant obstetrician and gynecologist, Dr. Elliot Levine on Feb. 1, 2008. She was 37 years old at the time. Because of her advanced maternal age, Dr. Levine recommended genetic testing for fetal anomalies. The patient agreed at her 11-week visit.

The blood draw for the quad screen test was planned for the 15-week visit on March 27, 2008, but Dr. Levine’s staff chose not to perform the blood draw at that time, giving no explanation.
Dr. Levine later took the first quad screen blood draw on April 24, 2008. The test results came back from the lab on April 29 showing a high risk of fetal anomaly (trisomy 21 Down syndrome) and thus Dr. Levine signed off on them on May 2. Dujmovic-Terman was not informed of the results during the next three weeks.

Dr. Levine finally told her about the results at her next visit on May 22 when she was 23 weeks pregnant. Dr. Levine ordered an amniocentesis at Weiss Memorial Hospital, which was scheduled for June 3, the next available appointment. However, Dr. Levine chose not to tell the patient that a legal abortion would not be available in Illinois once she passed gestation of 23 weeks and 6 days. He also failed to order the amniocentesis on an expedited basis.

One hour before the amniocentesis on June 3, 2008, she received a call that the hospital was cancelling the test because she was over 24 weeks pregnant, and Weiss Memorial Hospital did not have a labor/delivery department to respond if any complications occurred. Dr. Levine had been informed of the cancellation on May 30, 2008 but he did not notify her. After she contacted the manager of Dr. Levine’s practice group, Dr. Levine arranged for an amniocentesis to be performed at another hospital that same day and then processed at Weiss Memorial.

The amniocentesis results came back on June 13, 2008, but Dujmovic-Terman was not told of the results until July 3.

Dr. Levine was out of the country from June 15 to June 30, 2008, but he claimed that before he left for this trip he arranged for his office manager to email him the results of the amniocentesis so he could contact his patient from overseas. The office manager testified she was told to give the results to the practice manager and not to Dr. Levine or the patient.

The practice manager blamed an inoperable fax machine on the failure. When Dr. Levine did return on June 30 and saw the results, he did not contact his patient and waited until her next scheduled visit on July 3, 2008 to give her the results. Dr. Levine advised her to terminate the pregnancy because the fetus had a severe cardiac defect in addition to Down’s syndrome and the baby would not likely survive or would suffer an intolerable quality of life.

Dr. Levine and Weiss Memorial Hospital arranged for her to undergo a third trimester termination of the pregnancy in Kansas and paid for the procedure as well as the travel and related expenses.

Dujmovic-Terman and her husband traveled to Kansas for the 5-day procedure, which began on July 14, 2008. She contended she endured extreme pain and emotional trauma during the lengthy process of euthanizing the fetus — more than 30 weeksold — and prolonged labor and delivery, which could have been avoided with earlier diagnosis and a less complicated pregnancy termination.

She was also subjected to repeated verbal abuse from abortion protesters outside the Kansas clinic, which increased her emotional distress.

She was diagnosed with post-traumatic stress disorder, multi-depressive disorder and anxiety as a result of the late-term abortion, which plaintiff’s expert opined would be permanent.
Dujmovic-Terman was a war refugee from Bosnia who was granted asylum in the U.S. in 1996. She testified she felt better after receiving mandatory refugee counseling before she arrived in the U.S.

She argued she was never counseled about her option to keep the baby, she was never offered additional genetic testing to learn more details about the diagnosis and its impact and Weiss Memorial had a motive for paying for the late-term procedure in Kansas because it was trying to avoid greater exposure for the medical expenses it would be exposed to if she had kept the baby.
The defendants, which included Dr. Levine, his medical practice and Weiss Memorial Hospital, admitted negligence in choosing not to timely communicate test results, but they maintained that the patient was more than 50% responsible for the delay by her failing to update her contact information with Dr. Levine’s office after she moved. The defendants also denied causation of any of the injuries or damages claimed.

Dujmovic-Terman countered those arguments stating that her cell phone number had never changed even though she had moved. The defendants contended there was a five-year gap in her mental health treatment (2010 – 2015); her PTSD, anxiety and depression were pre-existing; and she was counseled about keeping the baby. Incidentally, the Kansas doctor who performed Irena’s abortion was shot and killed by a protester in 2009. That incident received national media attention. Post-trial motions are pending.

This case was handled expertly by attorneys Stephanie K. Nathanson and Michael T. Peterson. The $1,439,250 was reduced by .5% for what the jury found to be the contributory fault of the plaintiff. The jury’s verdict against all three defendants was made up of the following damages:

• $449,775 for past and future pain and suffering;
• $299,850 for past and future loss of normal life;
• $749,632.50 for past and future emotional distress.

The jury apportioned liability in this way:
• 60% to Dr. Levine;
• 25% to his medical practice, Lakefront Medical Specialists; and
• 14.5% to Weiss Memorial Hospital.

At trial, counsel for Irena produced experts in obstetrics and gynecology while the defendants produced experts in obstetrics/gynecology and psychiatry.

Dujmovic-Terman v. Dr. Elliot Levine, Lakefront Medical Specialists, et al., No. 10 L 3049 (Cook County, Ill.).

Kreisman Law Offices has been handling birth trauma injury cases, medical malpractice cases, pharmaceutical product liability cases, birth defect cases and hospital negligence cases for individuals and families who have been injured or killed by the negligence of a medical provider for more than 40 years, in and around Chicago, Cook County and surrounding areas, including Oak Park, Park Ridge, Round Lake, Skokie, Schaumburg, Schiller Park, Western Springs, Cicero, Deerfield, Prospect Heights, South Barrington, South Holland, Stone Park, Thornton, Tinley Park, Westchester, Western Springs, Willow Springs, Melrose Park, Justice, Hillside, Hanover Park, Crete, Country Club Hills, Beecher and Berkeley, Ill.