Judge allows premature birth lawsuit to proceed.

Byline: Barbara L. Jones

A McLeod County District Court judge has given a green light to a lawsuit alleging medical malpractice and wrongful death for the death of twins born alive at fewer than 21 weeks gestation.

According to the pleadings filed, the defendants argue that babies born that premature are not viable. The plaintiff, the twins' mother, argues that medical negligence caused them to be premature. Judge Jody Winters, reviewing the case under a Rule 12 standard, said the plaintiff stated a claim for which relief can be granted, and denied a motion to dismiss.

Viability is a fact issue

The gravamen of the claim is that the doctor incorrectly diagnosed a dichorionic/diamniotic pregnancy, which means there are two placentas, or chorions. Diamniotic means each twin has his or her own amniotic sac. A dichorionic/diamniotic is a normal presentation in a twin pregnancy.

But the plaintiff alleges she had a monochorionic twin pregnancy, which means that the twins shared a single placenta. In a monochorionic pregrancy, there is a risk that the fetus's circulatory systems can become intermingled in what is called twin-to-twin transfusion syndrome, causing disproportionate blood supply between the two. The plaintiff alleges that the pregnancy was not correctly diagnosed and the twins developed twin-to-twin transfusion syndrome, causing early labor and early death.

The twins were born after 20.2 weeks gestation and died a few hours later. Following the birth, the plaintiff required a dilation and curettage to remove placenta. The twins died while she was in surgery.

The plaintiff asserted two claims, her brief details. A medical malpractice claim contends the doctor failed to diagnose and treat the pregnancy and its symptoms, causing premature birth of babies with no expectation of survival and the mother's required D & C. The plaintiff also claims extreme emotional distress and other harm. The second claim is for wrongful death of the twins.

The result of the case, to date, is a primer in Rule 12 litigation. McLeod County District Court Judge Jody Winters, taking all the plaintiff's allegations as true, ordered that the Rule 12 requirements had been met. For purposes of the motion, the judge accepted the plaintiff's assertion that "[h]ad the twins been properly diagnosed, the twin-to-twin transfusion syndrome would have been treated (laser ablation would have occurred) and both would have survived. Additionally, Plaintiff has alleged but for...