Judge rules parents can seek punitive damages in premature infant’s death

A San Joaquin County judge said the parents of a premature infant who died at Modesto’s Doctors Medical Center can seek punitive damages in a lawsuit.

Plaintiffs Amil and Kori Ortega of Lathrop charge in a civil suit that the hospital and former director of the neonatal intensive care unit acted with oppression, fraud and malice when they did not inform them that two other babies in the NICU had been infected with salmonella. Their son Lucas died of an intestinal disorder called necrotizing enterocolitis on May 7, 2012.

The Ortegas said staff members did not test their son for salmonella. Necrotizing enterocolitis may be caused by the bacterial infection.

The parents are seeking millions of dollars in damages from Doctors and Dr. Frederick Murphy, the former medical director of the NICU.

“He took the Hippocratic oath to protect his patients and did not do anything to protect our son,” Amil Ortega said. “He could have told us and given us the chance to move the baby.”

In a tentative ruling Monday, Judge Linda Loftus discussed what the Ortegas’ attorneys say is a key piece of evidence in the civil case. An April 20, 2012, email between staff members of the California Department of Public Health suggested the hospital’s infectious disease coordinator had been under orders not to investigate the salmonella matter.

The state public health staff member who wrote the email said she received the information from the lead investigator with the Stanislaus County Health Services Agency. Loftus decided to allow the email as evidence despite the objection of the hospital’s attorneys.

“As a statement by an employee of the hospital who is in charge of infection control and prevention, the statement could be construed as an admission by the hospital that it did not investigate the salmonella situation,” the ruling said.

A spokeswoman for Doctors said she had not seen the ruling and could not comment. Hospital officials have said the salmonella cases in 2012 were limited. Attorneys for Doctors argued in court that there’s no evidence the Ortega baby was infected with salmonella.

In February, Doctors Medical Center agreed to pay $150,000 to settle a lawsuit brought by Salida resident Sheila Vega, whose prematurely born daughter was found to be infected with the salmonella Newport strain in the NICU in April 2012.

After infant formula was ruled out as the cause, Vega’s lawsuit claimed the bacteria was spread from another infected infant at Doctors. The lawsuit blamed the outbreak on a lapse in infectious disease control procedures at the hospital.

David Anderson, a San Francisco attorney representing the Ortegas, said they have tried to find other parents whose babies were in the NICU at that time. A medical expert for the plaintiffs has declared the defendants were negligent in not testing other infants for salmonella after confirming the diagnosis in the first baby.

This story was originally published July 27, 2015 at 10:30 PM with the headline "Judge rules parents can seek punitive damages in premature infant’s death."