When a pregnant woman appeared at her obstetrician’s office a few weeks before she was due to deliver a baby, complaining of headache, backache, hypertension and possible decreased fetal movement, she was told to return home, apply Bengay cream to her sore back and “eat bland food” the rest of the day. Those instructions, and the allegations that the on-call obstetrician failed to order follow-up testing, are substantial enough to allow the mother to bring punitive damages claims against the doctor and the OBGYN practice, a northeastern Pennsylvania judge has ruled.

The plaintiff, Carolina Hughes, has sued several Lackawanna County health care professionals, arguing their conduct caused her son to be born with a hypoxic brain injury that left him dependent on a feeding tube, and unable to walk, crawl or stand.

The defendants, which include ­Wilkes-Barre General Hospital, OB-GYN Associates, Moses Taylor Hospital and two doctors, recently filed preliminary objections seeking to have several claims dismissed.

Lackawanna Court of Common Pleas Judge Terrence Nealon, however, determined that the punitive damages claims could go forward against the on-call obstetrician, OB-GYN Associates and the hospital.

“Based upon the allegations of reckless indifference by WBGH’s ostensible agent, Dr. [Theresa Baseski], and WBGH’s and OB-GYN Associate’s agents, coupled with the additional averment that WBGH and OB-GYN Associates had actual or constructive knowledge of that conduct, the Hugheses have sufficiently pled a claim against WBGH and OB-GYN Associates for vicarious liability for punitive ­damages,” Nealon wrote in his opinion in the case.

Ross Feller Casey attorney Matthew Casey, who is handling the case for Hughes, said the ruling was proper, especially at such an early stage.

“If the conduct proves merely to be grossly negligent and not recklessly indifferent then the matter won’t go to the jury; if, however, as it appears to be the case at this juncture, the conduct proves to be recklessly indifferent, then there will very likely be a punitive damage award in the case,” Casey said.

According to Nealon, Hughes alleges that she came to the OB-GYN Associates offices on Sept. 6, 2012, which was 19 days before the baby’s due date. She complained of headache, dizziness, nausea, backache, hypertension and possible decreased fetal movement, Nealon said.

The practice called Baseski, the on-call obstetrician, who was located at Wilkes-Barre General Hospital and gave instructions to the staff over the phone, Nealon said. According to the allegations in the complaint, Hughes was sent home with instructions to “take Tylenol every four-to-six hours for her headache, to apply Bengay cream for back pain, and to eat bland food for the rest of the day.”

The next day Hughes returned to OB-GYN Associates and was seen by Dr. Lori DelGaudio, who is also a defendant in the case. Testing was performed, which showed a decrease in the fetal heart rate, and an abnormal biophysical 
profile.

Hughes contended that DelGaudio also delayed in properly treating her by waiting more than two hours to send Hughes to the hospital, and that there was another delay in treatment after DelGaudio ordered the cesarean section.

Hughes contended, among other things, that Baseski or staff at OB-GYN Associations should have ordered a biophysical profile, performed an ultrasound, or recommended she go to a hospital. That conduct, along with the staff’s recommendation that she take Tylenol, Bengay and eat bland food, amounted to acting “recklessly indifferent,” Hughes contended.

Hughes had also sought punitive damages against DelGaudio, but Nealon said Hughes’ amended complaint did not assert willful, wanton or reckless 
conduct.

“Thus even if the allegations of the amended complaint are accepted as true, they are insufficient to sustain a punitive damages claim against Dr. DelGaudio,” Nealon said.

Burns White attorney Stuart O’Neal is representing Wilkes-Barre Hospital. James Doherty of Scanlon, Howley & Doherty is representing OB-GYN Associates and DelGaudio. Gross McGinley attorney Howard Stevens is handling the case for Moses Taylor Hospital. None of the three attorneys returned calls seeking 
comment.