A Bemidji couple whose stillborn fetus was lost by North Country Regional Hospital will get another day in court to seek damages.
The Minnesota Court of Appeals, in an unpublished opinion released Tuesday, disagreed somewhat with Beltrami County District Judge Paul Benshoof's handling of the case, but agreed with him in ordering a new trial to determine financial damages owed to David and Amber Gooch of Bemidji.
On Jan. 28, 2003, doctors at the hospital induced labor of Amber Gooch, then 35, after determining her 20-week-old fetus was dead in her womb. After delivery, the hospital wrapped the fetus in a blanket and placed him in a small basket.
The fetus was 6½ inches long, weighed 2 ounces and had 10 fingers and 10 toes. The hospital encouraged the Gooches "to hold the fetus, name him, and keep him in their hospital room overnight so that they could bond with him," the Appeals Court decision states.
The next morning, the fetus was taken to North Country Regional Hospital's morgue, where procedure called for a pathologist to place the remains in a plastic container and kept in the Pathology Department until a funeral home representative picked up the remains -- usually a day or two later -- for burial in the spring with the remains of other fetuses.
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In May, the Gooches asked the funeral home about the date of the funeral service but were told the funeral home had not received the fetus. They then called the hospital.
"It is undisputed that the hospital could not locate the fetus and could not account for what had happened to the fetus," the Appeals Court stated.
The director of nursing at the hospital told the Gooches that the fetus had probably been cremated, and three days later, the hospital chaplain speculated that the fetus was likely sent to Fargo, N.D., with other surgical byproducts for incineration.
The Gooches sued the hospital to recover emotional-distress damages for the hospital's "negligent and careless" loss of the fetus.
In November 2004, a Beltrami County jury returned special verdicts finding that the hospital was both "negligent" and "willful or wanton" in having permanently misplaced the fetus and that the hospital's wrongful conduct was a direct cause of any damages suffered by appellants. The jury awarded the Gooches $150,000 in damages.
Upon motion by North Country, Benshoof in February 2005 vacated the jury's damage award, saying the hospital's conduct was not "wanton" or "willful," and granted a new trial on damages. The Gooches appealed, sending the case to the Appeals Court.
The Appeals Court opinion, however, agrees with the jury that the hospital was negligent.
"There was sufficient proof that the act (or failure to act) demonstrated reckless disregard of another's rights," states the opinion. "Although there is no evidence in the record indicating exactly what happened to the fetus, it is reasonable to conclude that someone at the hospital acted, causing the fetus to be removed from the pathology area, or failed to act, allowing it to be removed improperly. Any of the speculated dispositions -- whether the fetus was sent for cremation or was incinerated -- required some act or failure to act by the hospital."
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North Country's actions permanently deprived the Gooches of any ability to bury the fetus, it said. "A jury could reasonably have found that the hospital's failure to safeguard the fetus was in deliberate disregard of, or indifference to, appellants' right to bury their son. Thus, the record supports the jury's determination that the hospital acted in reckless disregard of appellants' rights."
But the Appeals Court agreed with Benshoof in dismissing the $150,000 award, that the Gooches' attorney, Tom Kuesel of Bemidji, played on the jury's emotions when he underscored the chaplain's explanation of what happened to the remains in his closing arguments.
"The decision to grant a new trial lies almost entirely within the sound discretion of the district court, and we will not disturb that decision absent a clear abuse of discretion," the Appeals Court said.
"During closing arguments, counsel for appellants stated that the hospital 'generate[s] enormous amounts of money' providing care for 'our loved ones.' Because the hospital's revenue was irrelevant to this case, the court gave a curative jury instruction that the hospital was a non-profit organization," the Appeals Court said.
"Also in closing, counsel for appellants characterized the hospital's after-the-fact actions as reckless when the chaplain told appellants that the fetus may have been incinerated, asking the jury to consider '[t]he horrific imagery that was left in [appellants'] minds when they were told their precious little son had been consumed by flames.' The district court found that counsel's remarks were clearly intended to appeal to the jurors' passions and emotions."
Because the Appeals Court can't determine what amount of money the jury may have attributed to Kuesel's remarks, it affirmed Benshoof's decision to grant a new trial on the issue of damages.
