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Appeals court gives woman new trial in pregnancy suit

(ran SS edition of METRO & STATE)

After accusing doctors of misdiagnosing her pregnancy, the woman won a suit, but a judge overruled the verdict.

An appeals court has granted a new trial to a Clearwater woman who accused her two doctors of failing to properly diagnose that she was pregnant.

To Mary Elder, the ruling provides a measure of vindication.

After a trial last year, a Pinellas jury awarded Elder and her husband, Rodney, $884,500 in damages against two doctors who treated Mrs. Elder. She was seven months pregnant before either she or her doctors realized it, her lawsuit said.

The Elders' child was born prematurely and deaf, which the lawsuit linked to the doctors' misdiagnosis.

But Pinellas-Pasco Circuit Judge Thomas E. Penick Jr. overturned the verdict and ruled in favor of the doctors, the late Frank Norton and Carmella Farulla.

The judge ruled that a medical expert who testified for the Elders wasn't able to definitively link the deafness to any lack of prenatal care.

But the 2nd District Court of Appeal last week granted a new trial to the Elders. The court said Penick improperly limited the number of expert witnesses the Elders could call to bolster their theory that the doctors' failure to discover the pregnancy led to the premature birth of the couple's son, Ethan.

Mrs. Elder said proper prenatal care might have prevented the premature birth.

"Of course, I'm very pleased," said Mrs. Elder, whose son is now 11. "I think we should have won in the first place. The jury gave us its decision. That's why they sit up there. Then the judge took it away. Now we have another chance."

The appeals court said allowing the Elders' attorney to call an extra expert witness does not necessarily mean the family can meet its legal burden. But the court said the Elders should be given the chance.

"We recognize that this resolution may appear to give Elder a second bite at the apple," the 2nd DCA said in its Sept. 6 ruling. "However, we do not believe that to be the case under these circumstances.

"This is not a situation in which (the Elders) did not come to court prepared to prove their case. Rather, this is a situation in which the trial court's pretrial ruling unfairly limited (the Elders') ability to present her case."

Attorneys for the Elders and the doctors could not be immediately reached for comment.

Mrs. Elder conceived in 1988, though she did not immediately realize it.

Elder's menstrual cycles always were irregular, and she mistook the occasional bleeding during the pregnancy as her periods. And for the first three or four months, she lost weight because she was dieting.

She also said she was getting sick to her stomach. Her hands and feet swelled. She felt movement in her abdomen, but thought it might be gas.

Mrs. Elder consulted Dr. Norton at his Largo family practice clinic when she was four or five weeks pregnant. Then she saw Dr. Farulla at Largo's Diagnostic Clinic when she was about seven weeks along.

At 20 weeks or so, she went back to Norton. And then she saw Farulla again at about 27 weeks.

At first, Farulla diagnosed irregular periods due to obesity. Norton diagnosed respiratory infection. But neither doctor checked specifically for pregnancy.

Finally, Farulla ordered an exploratory sonogram, which revealed a 7-month-old fetus.