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Jury clears doctor and EMMC in 2-day-old baby’s 2015 death

Linda Coan O'Kresik | BDN
Linda Coan O'Kresik | BDN
Northern Light Health Eastern Maine Medical Center in Bangor is seen in this May 2, 2019, file photo.

A Penobscot County jury on Friday rejected a Pembroke couple’s claim that a Bangor physician and Northern Light Eastern Maine Medical Center caused the death of their premature daughter in September 2015.

After deliberating for about 2½ hours, the jury of nine women and one man found by a 7-to-3 vote that Dr. John J. Hagerty III, a neonatologist, and the hospital were not negligent in the death of Ashley Dawn Ashby.

The couple had sought $5.5 million in damages.

Ashley and her twin brother Axel were born on Sept. 5, 2015, about nine weeks early. She died at about 2:30 p.m. on Sept. 7, 2015, which was Labor Day that year, according to testimony.

Ashley weighed 3 pounds and 11 ounces and Axel, who survived and is now healthy, weighed 4½ pounds, according to testimony. Both had breathing problems and other difficulties common to premature babies and were placed in EMMC’s Neonatal Intensive Care Unit. Axel spent 10 days there before being released to his parents.

Tina and Sheldon Ashby, both 34, sued Hagerty and the hospital in November 2018 in Penobscot County Superior Court arguing that the doctor’s placement of a feeding line in Ashley’s umbilical cord was too low. That caused her abdomen to fill with fluid and led to her death, the complaint said.

Hagerty and the hospital denied those claims, arguing that the baby died from a variety of ailments. Fluid was found around her heart and lungs, as well as in her abdomen, according to testimony.

Tina Ashby on Tuesday said she and her family were disappointed by the verdict.

“Not a day goes by that we don’t miss Ashley,” she said. “While we respect the process, we are deeply disappointed with the outcome.”

The Ashbys’ attorney, Benjamin Gideon of Lewiston, told jurors in his closing argument that Ashley’s death certificate stated she died of fluid in her abdomen.

“The hospital has tried to rewrite the history of what happened,” he said.

EMMC’s attorney, Ed Gould of Bangor, said Monday that Ashley and Axel received “expert, specialized care” in the hospital intensive care unit for infants.

“Sadly, despite the best that medicine can offer, sometimes premature infants cannot survive the challenges they face,” he said. “We have tremendous sympathy for Ashley’s parents and the entire family for their loss. We are also grateful that the jury agreed that Dr. Hagerty provided the care for Ashley that the profession expects of a neonatologist under these circumstances.”

Verdicts in a civil trial do not have to be unanimous as they do in criminal cases. The standard of proof also is lesser than beyond a reasonable doubt. Jurors in civil trials must find that there is a greater than 50 percent chance that the plaintiffs’ claims are true.

 


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