Facts

In February, 2000, Mrs. Garner was admitted to Kaiser, Vallejo for delivery. Upon delivery of the fetal head, the OB/GYN encountered a nuchal cord and a shoulder dystocia.

The OB/GYN did not recall the delivery. However, her delivery note stated that after ligating the nuchal cord, she delivered the shoulder dystocia with a combination of McRoberts maneuver, suprapubic pressure and traction. The nursing flow sheet recorded a one minute shoulder dystocia.

Kaiser produced a nurse who testified that she remembered the delivery in great detail, and that the one minute shoulder dystocia was compromised of reduing the nuchal cord (30 seconds), performing McRoberts maneuvers and suprapubic pressure (25 seconds) with only five seconds of forces on the baby's head and neck to deliver the body.

The fetal monitor strip documented that the length of time of the shoulder dystocia was, greater than one minute, one minute, 55 seconds, or 2.5 minutes, depending on the interpretation. Thus, the forces applied to the baby's head and neck exceeded those that were testified to by the nurse.

CLAIMANT'S CONTENTIONS:
Negligent failure to utilize maneuvers required by standard care to safely deliver shoulder dystocia, which caused and/or contributed to minor plaintiffs permanent brachial plexus paralysis C5-C6 stretch injury.

RESPONDENT'S CONTENTIONS:
At all times relevant, the care and treatment rendered by Kaiser Vallejo, and its employees and agents, was well within the standard care and did not cause or contributed to minor plaintiff's brachial plexus paralysis injury.

Settlement Discussions

No offer. Kaiser, Northern California refused to participate in mediation.

Damages

Claimant requested the arbitrator award non-economic damages of $250,000 and economic damages for future loss of earning capacity and future medical care costs in the range of $428,958 to $501,785, for a total of $678,958 to $751,785. Respondent requested a defense award, but in the event of an award for claimant, respondents suggested non-economic damages of $250,000 and future economic damages of $67,482, for a total of $317,482.

Result

Arbitration award, $322,921 ($250,000, MICRA, $42,245, past and future meds); $24,046, future LOE); $6,000, out of pocket expenses).

Other Information

Net current recovery was placed in a tax re-structured annuity for the benefit of the minor.