Confidential
Settlement – $1,066,000Judge
Court
Confidential
Attorneys
Plaintiff
Hermez Moreno
(Boucher LLP)
Defendant
Experts
Plaintiff
Donna M. Barras
(medical)
Marvin Nelson
(medical)
Douglas Cunningham
(medical)
Richard Boles
(medical)
Robert L. Podosin
(medical)
Daniel I. Braun
(technical)
Michael E. Ross
(medical)
Defendant
Barbara C. Luna
(technical)
Perry R. Lubens M.D.
(medical)
Barry D. Pressman M.D.
(medical)
Facts
The claimant mother's pregnancy was marked by several short periods of premature contractions, all controlled with terbutaline administration, but was otherwise uneventful. All examinations during her pregnancy, including blood tests, ultrasounds and nonstress tests at the time of premature contractions were normal or reactive respectively until several days before the delivery. At about 36 weeks of pregnancy, the claimant mother began having severe nausea and vomiting and diarrhea, with low grade fevers. On Sept. 28, 1992, she visited the respondent's labor and delivery area. There, on the basis of the history, the physical examination, and blood count and electrolytes, she was judged to be dehydrated and was given a liter of lactated Ringer's solution intravenously before discharge home. The claimant baby's nonstress test was nonreactive initially, but became reactive when the claimant mother was given the intravenous fluid. That night, the mother's diarrhea and nausea worsened. She returned to the respondent the next day. The respondent physician did no laboratory tests. He restricted his examination of the mother to a pelvic examination and a visual inspection of her skin. Despite the history of continued inability to keep any fluids down, and of both vomitting and diarrhea, the respondent physician felt that his clinical examination permitted him to conclude that the mother was no longer signficantly dehydrated, and that she needed no intravenous fluid. In addition, the baby's nonstress test and fetal acoustic stimulation test each showed increases in baseline hear rate of only 10 beats per minute above baseline. The respondent physician interpereted these fetal heart monitor strips as being "reactive" and sent the mother home with no treatment except Kaopectate, which she could not keep down. After another 36 to 48 hours of vomiting and diarrhea, the mother returned to the respondent. At that time, the baby's fetal heart monitor strip was flat, showing neither long term nor short term variability. After about nine hours of observation, culminating in fetal tachycardia, a nonelective cesarian section was performed, resulting in delivery of a baby whose clinical presentation did not meet the ACOG criteria for perinatal asphyxia. The baby began seizing within 24 to 00036 hours of delivery. The initial cranial ultrasound, done the day after delivery, was normal. The initial CTscan, done on the third day of the baby's life showed diffuse cerebral edema. A CT scan done two months later showed massive replacement of brain tissue with cystic areas. This sequence of imaging findings was diagnosed as being most consistent with a massive episode of diffuse cerebral hypoperfusion occurring sometime within the four days prior to the initial CT scan, corresponding to the time between the respondent doctor's failure to rehydrate the mother and the time of the baby's delivery. The baby has microcephaly and a spastic quadriplegia with mental retardation. The claimants, the minor and his parents, brought this action against the respondent based on a medical malpractice theory of recovery.
Settlement Discussions
The claimants made an initial settlement demand of $1.9 million. The respondent offered nothing until about one month before initiation of full arbitration proceedings, when most expert depositions were still pending. The respondent physician's arbitration testimony was taken in full and final form before the full arbitration panel about one month before the remainder of the arbitration was set, as the respondent physician was to be on vacation during the dates set for the arbitration. After this testimony, the respondent offered $500,000. Multiple counter offers followed.
Specials in Evidence
All future and past medicals were presumably collateralized
Damages
The claimant parents claimed emotional distress.
Injuries
The minor claimant alleged massive hypoxic brain damage in utero during the two days prior to delivery by cesarian section resulting in cerebral palsy.
Other Information
The settlement was reached after one day of testimony in the arbitration. The child's life expectancy was estimated as between 14-18 years, though the child was in excellent physical health except for the sequelae of his brain damage, and it was felt that an annuity, providing for medical and custodial care if the baby should survive long term, was necessary.
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