Goldstein v. Armstrong

$4M Verdict

Date of Verdict: May 15.

Court and Case No.: C.P. Lancaster CI-12-03765.

Judge: Jeffrey Wright.

Type of Action: Wrongful death, medical malpractice.

Injuries: Death.

Plaintiffs Counsel: Peter Greiner and Alan Starker of Sprague & Sprague, Philadelphia.

Defense Counsel: Steven Costello of Saxton & Stump, Malvern.

Plaintiffs Experts: Dr. Herschel Lessin, Dr. Danny Benjamin and Dr. Jon Meliones.

Defense Experts: Dr. Timothy Shope, Dr. Eugene Shapiro and Bruce Greenwald.


The mother of an infant who died after doctors failed to timely diagnose her whooping cough has won a $4 million verdict.

A Lancaster County jury on Tuesday found that a pediatric medicine practice group and two doctors failed to diagnose infant Cali Goldstein’s pertussis, despite the mother repeatedly telling doctors she thought the child was suffering from the rare and potentially fatal condition. The award came after more than a week of trial before Lancaster County Court of Common Pleas Judge Jeffrey Wright.

The mother, Michelle Goldstein, had contended that she repeatedly told doctors to test for whooping cough as she had recently returned from a trip to California where a large pertussis outbreak had occurred.

Although the doctors denied that Goldstein had told them to check for pertussis, Sprague & Sprague attorney Peter Greiner, who, along with Alan Starker, tried the case for Goldstein, said the jury credited the mother’s testimony, and rejected the argument that discovering the condition earlier would not have saved the baby.

“That was a really hard pill for the jury to swallow—that earlier diagnosis and treatment wouldn’t have saved Cali, even though 99 percent of infants that get whooping cough don’t die from it,” Greiner said.

According to Goldstein’s pretrial conference memo, the baby was born Sept. 5, 2010, and died of complications stemming from whooping cough 32 days later. The memo said the baby was born three weeks premature, and began having an unusual cough two days later.

The memo said the baby had coughing fits in front of the doctors, and that Goldstein mentioned she had recently come back from California, where there had been a pertussis outbreak. The memo also said there had been a pertussis outbreak in Lancaster and York counties, with some cases having been as recent as the month before. According to the memo, the doctors ended up “dismissing her concerns as those of a paranoid first-time mother.”

On Sept. 14, the mother took Cali Goldstein to an urgent care center, where she was told to use an over-the-counter cough suppressant.

Cali Goldstein’s conditioned worsened, and a chest X-ray was performed. Dr. Jason Gottlieb eventually agreed with a nurse’s recommendation that the infant should treat with an inhaler to treat her congestion. On Sept. 29, 2010, Dr. Steven Killough also diagnosed Cali Goldstein with bronchitis; however, on Oct. 1, 2010, Cali Goldstein was taken to the Lancaster General Hospital’s emergency room after she started having seizures and had become cyanotic. Although Cali Goldstein was placed on life support, she died on Oct. 7.

During trial, Dr. Herschel Lessin, Dr. Danny Benjamin and Dr. Jon Meliones provided expert testimony for the plaintiff, as did economist Andrew Verzilli.

Dr. Timothy Shope, Dr. Eugene Shapiro and Bruce Greenwald provided expert testimony for the defendants.

In their pretrial memo, the doctors contended that their treatment was within the standard of care, and that none of the doctors would have refused to test the infant for whooping cough, if Michelle Goldstein had asked them to.

“In sum plaintiff’s case relies on convincing a Lancaster County jury that four well-respected board certified pediatricians, a CRNP, and a physician assistant would each refuse to perform a simple nasal swab test,” the memo, filed by Saxton & Stump attorney Christopher Stump, said.

The jury determined that two doctors who saw Cali Goldstein early on were not negligent, but that the Lancaster Pediatric Associates was 50 percent at fault for the death and that Gottlieb and Killough were each 25 percent at fault.

A nurse who also treated the infant previously settled for an undisclosed sum. The nurse was on the jury sheet, however, and the jury determined the nurse was not negligent.

The jury also awarded more than $1.1 million on a wrongful death claim, and nearly $1.9  on a survival claim.

A message left with Stump and Saxton & Stump attorney Steven Costello, who tried the case for the defendants, was not returned.

—Max Mitchell, of the Law Weekly