We recently obtained a multi-million-dollar settlement in a birth injury case. For the sake of confidentiality, we will not use the names of our clients, or the healthcare providers and institutions involved. The basic facts of the case were as follows:
Background
Our client, a young woman, arrived at the hospital mid-morning at 37 weeks pregnant. The course of her pregnancy was normal. She arrived at the hospital complaining of decreased fetal movement. She was placed on electronic fetal monitoring. For about an hour and 15 minutes, the tracing was ominous, with heart rate variability nearly absent. The attending nurse was aware of this pattern, yet did not contact the attending obstetrician until more than 35 minutes later. The doctor felt the pattern was non-reassuring and our client was consented for an emergency cesarean section.
Negligence
The accepted standard of care requires that an emergency cesarean section to be started no more than 30 minutes after the decision to perform the surgery. The incision did not occur until about 45 minutes after the decision to proceed. When the baby was born, he was severely depressed and acidotic – an excessively acid condition of the body fluid and/or tissues. He was ultimately diagnosed with perinatal hypoxic ischemic encephalopathy and multisystem organ dysfunction. The delay in treatment mentioned above contributed to the baby’s ischemic injuries.
Litigation
We filed a lawsuit against the appropriate parties and painstaking litigation ensued. Written questions, called interrogatories, were propounded upon and answered by all parties. Voluminous documents were exchanged. Many depositions took place. After the depositions were taken, it was our turn to disclose our intended trial witnesses. We disclosed the following 17 people:
- The mother and the father of the injured baby;
- Four of the nurses involved with the labor and delivery of the baby;
- Six of the doctors involved in the labor and delivery of the baby;
- An expert doctor board certified in Obstetrics and Gynecology;
- An expert nurse certified in Obstetrical Nursing and Electronic Fetal Monitoring;
- An expert Neuropsychologist;
- An expert doctor board certified in Child Neurology; and
- An expert certified Life Care Planner.
As with many medical malpractice cases, this one was expert intensive. Often times in Illinois medical malpractice cases the jury’s decision comes down to which experts they believe. We felt that in order to prove our case by a preponderance of the evidence, we needed to retain five experts. While the case didn’t get that far, we can only assume that for every expert we had, the defendants had their own experts to contradict our experts’ opinions.
Expert Witnesses
In summary, our expert OB/GYN was prepared to testify that the delivering doctor deviated from the standard of care in his care and treatment of our client and her child in delaying to attend to them; in failing to advise the nursing staff that he would be delayed in coming to see the patient and, once at the bedside, failed to perform an emergency caesarian section as soon as possible. These deviations from the standard of care resulted in an excessive delay in the delivery of the baby.
Our expert registered nurse certified in obstetrical nursing and electronic fetal monitoring was prepared to offer trial testimony that one of the labor and delivery nurses deviated from the standard of care which required her to assess the fetus to determine if the fetus was getting enough oxygen and to know what to look for to determine if the fetus was getting enough oxygen.
Our expert neuropsychologist was prepared to offer testimony concerning the baby’s injuries, the nature, extent and permanency of those injuries and damages.
Our expert board-certified neurologist was prepared to testify as a result of medical negligence, the baby sustained severe neurologic injury as a result of low oxygen to his brain prior to delivery causing damage to his brain (Hypoxic Ischemic Encephalopathy). The arterial cord gasses revealed a period of extremely reduced oxygenation of the fetus sufficient to result in brain injury. As a result of the brain injury, the baby now has severe motor deficits including the inability to walk, severe trunk weakness, markedly reduced upper extremity function, spasticity, and intellectual and language damage. All these conditions were the result of the neurologic injury caused due to lack of oxygen to his brain due to ischemia (bradycardia) in the minutes prior to delivery. With proper care it is more likely that the baby has a life expectancy into his late-50s to early 60-s. For the remainder of his life, he will need one-to-one care 24 hours a day, seven days a week.
Lastly, our certified life care planner, after reviewing the medical records and depositions, visited the child and his parents at their home. He prepared a Life Care Plan setting out how much money it would take to raise and care for the child up to his expected life expectancy.
Conclusion
After our trial witness disclosure, the defendants’ lawyers wanted to talk settlement. After extensive negotiations, a multimillion-dollar settlement was reached. No arbitration or mediation was used in obtaining this settlement, which is quite unusual in this day and age. Our clients were pleased and we hope that they are able to give their child the best life possible under the circumstances.
