$4 Million Settlement for Infant Born With Cerebral Palsy

Type of action:

Medical Malpractice

Injuries alleged:

Catastrophic, perinatally-acquired injuries including severe cerebral palsy, seizure disorder, hypoxic ischemic encephalopathy, feeding difficulty requiring both a gastrostomy tube and a jejunostomy tube, central nervous system dysfunction, respiratory difficulties and partial blindness.

Amount of settlement:

Settled with cash component and structured settlement component with a combined cost in excess of four million dollars ($4,000,000.00) with total payouts, based on normal life expectancies, of nearly twenty-seven million dollars ($27,000,000.00).

Other useful information:

This case involved claims of medical malpractice against seven physicians, including three obstetricians, two gastroenterologists, one hematologist and one internist, as well as a medical group practice, for their failure to diagnose and properly treat a paraesophageal hernia in an adult female over a period of several years. In 1992, the plaintiff was thirty-one weeks pregnant with her infant daughter when the hernia ruptured, necessitating emergency surgery and Cesarean section delivery of the child by doctors other than the defendants.

The child showed signs of significant perinatal hypoxia, severe acidosis and profound, permanent neurological injury. The case was significant for several reasons including the fact that much of the alleged negligent treatment occurred over an eight-year period prior to the conception of the child. The plaintiffs contended that despite having expertise in several medical specialties, each of the defendants failed on the most basic of levels as physicians to take proper and complete medical histories and to review and appreciate the significance of medical records, including a chest x-ray taken in 1989 which was strongly suggestive, if not diagnostic, of the patient’s condition.

The plaintiffs obtained opinion letters of some nineteen physician experts whom they intended to call at trial. In addition to claims for the child’s injuries, the plaintiff mother brought claims for her own personal injury and emotional distress, as well as for the loss of the child’s consortium. The plaintiff father brought claims for emotional distress and loss of the child’s consortium.

At the time of settlement, the child was nearly six years old, resided at home, attended a school for the severely handicapped on a daily basis and received home care from her family and occasional home nursing services. The defendants contested several issues in the case, including life expectancy, for which they cited several well-published studies on the compromised longevity of severely handicapped children. According to these studies and due to the child’s extreme disabilities, including an inability to sit upright without assistance, it was the defendants’ position that she could not reasonably be expected to live beyond five years.

It was the opinion of the child’s treating pediatric physiatrist that she could reasonably expect to live at least until her fifties, in large part due to the excellent care that she received from her family and other providers, her relatively stable health, and due to recent advances in rehabilitative care. The defendants also contested liability on several points, including whether any of them could be liable for injuries ultimately sustained by the child based on alleged negligence prior to conception.

They also vigorously maintained that none of them acted in any way which caused or contributed to the plaintiffs’ injuries, and intended to call several well-credentialed physician experts to testify to these opinions and to the mother’s own alleged refusal to permit treatment and/or failure to seek follow up care which they claimed would have resulted in appropriate diagnosis and treatment. Once the claims against the defendants were resolved, plaintiffs’ counsel were successful in convincing the Commonwealth of Massachusetts to substantially reduce its lien for Mass. Health benefits paid by a proportionate share of the plaintiffs’ procurement costs, including attorney’s fees and expenses.

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