Posted on July 8, 2011

Memorial Pays $700,000 Settlement to Injured Child of Undocumented Immigrant

Daniel Chacon, The Gazette (Colorado Springs), July 6, 2011

City-owned Memorial Health System paid $700,000 to settle a lawsuit filed by an undocumented immigrant from Mexico whose baby allegedly suffered severe brain injuries during delivery four years ago.


An attorney for Maria Gallardo, who sued the city of Colorado Springs and the United States of America for medical malpractice last year, said the amount Memorial paid could have been a lot higher.

“The hospital settlement was only for the baby, not for the mother,” Springs attorney William Fischer said Wednesday. He said the mother’s window of opportunity to file a claim on her own behalf under the Government Immunity Act had closed by the time she had filed. She has until her child’s 18th birthday to file a claim on behalf of the baby, he said.


Fischer said the settlement with Memorial concerns only the hospital’s nursing staff. To pursue a claim against the doctor, he said, Gallardo will turn her attention to the federal government.

Dr. Jeffery McCutcheon, who delivered Gallardo’s baby at Memorial Hospital, works for Peak Vista Community Health Centers. Peak Vista is, in government parlance, a Federally Qualified Health Center. As such, “Defendant USA, in operating PVCHC, is required to provide reasonable and appropriate care and treatment of its patients,” the lawsuit states.

Fischer said a trial date is scheduled to be set soon, but the U.S. Attorney’s Office, which is defending the federal government, asked Fischer and his co-counsel, Michael Goodman of Denver, to submit a settlement offer.

Still, “we’re preparing to go to trial,” he said.

According to the lawsuit , filed in U.S. District Court in Denver:

On Feb. 11, 2007, Gallardo was admitted to Memorial Hospital for planned induction of labor and delivery of her daughter, Dulce Rodriguez-Gallardo.

Gallardo claimed that Memorial nurses and McCutcheon “fell below the standard of care” when they failed to, among other things, properly interpret fetal heart monitoring strips that showed the baby in distress during labor.


The nurses summoned McCutcheon about 15 times, “but the doctor just wanted to continue and let her have the baby naturally,” Fischer said.


Dulce was born with severe brain injuries “as a direct and proximate” result of medical negligence, the lawsuit states.


Fischer said Gallardo, who still lives in Colorado Springs, is an undocumented immigrant from Mexico who plans to continue to live in Colorado Springs.

“The baby is a citizen because it was born here,” he said.

Despite being an undocumented immigrant, Gallardo has rights, Fischer said.

“The mother and the baby are still entitled to medical treatment within the standard of care, whether they’re a tourist here, whether they’re here undocumented, no matter what,” he said. “As a human being, they’re entitled to proper medical care.”

Fischer said the baby’s father was deported to his native Mexico, though he said he did not know when.