Confidential
Settlement – $2,000,000Judge
Court
Orange Superior
Attorneys
Plaintiff
Sean M. Burke
(Burke Argos)
Defendant
Experts
Plaintiff
Susan P. Bleecker CPA
(technical)
Carl E. Otto
(medical)
Harvey Sarnat
(medical)
John H. Menkes
(medical)
John M. Graham
(medical)
Marvin D. Nelson M.D.
(medical)
Joel Humphries
(technical)
Linda Pierce
(medical)
Defendant
Aubrey Milunsky
(medical)
Barbara Luna
(technical)
Harvey D. Segall
(medical)
Perry R. Lubens M.D.
(medical)
Robert L. Friedenberg
(ADR Services, Inc.)
(medical)
Edward L. Workman
(technical)
Facts
In April 1990, the 6-year-old plaintiff's mother, underwent an amniocentesis by the defendant OB/GYN. The mother was 16.5 weeks pregnant with the plaintiff and her twin sister. According to the plaintiff's parents, the defendant located the two fetuses with the use of an ultrasound, marked the location for the insertion of the amniocentesis needle, set the ultrasound transducer needle, sterilized the insertion site and then inserted the needle. He had difficulty with the insertion and had to reinsert the needle twice and then had to exert force on the needle to get it in. The defendant never re-checked the position of the fetuses during the attempts to reinsert the needle. When he withdrew fluid, it came back tinged with blood. The analysis of the fluid indicated the presence of fetal blood, alpha fetal protein and ACHE, an enzyme present in fetal blood and cerebrospinal fluid. The results also showed that the twins were identical twins. After they were born, the parents noticed that there was a red birthmark in the area of the plaintiff's right temple. As the two girls grew older, the parents noticed that the plaintiff did not seem to be developing as quickly as her twin sister. They had her evaluated, and an MRI revealed that the entire right hemisphere of her brain was missing, as well as her right carotid artery. Subsequent evaluation by the plaintiff's experts in this case revealed that her right ear was slightly deformed and was different from her left ear. As she grew older, she developed severe seizures. The brain damage has left her severely mentally retarded. The plaintiff brought this action against the defendant based on medical malpractice and negligence theories of recovery.
Settlement Discussions
The plaintiff made a C.C.P. º998 settlement demand for $2 million (policy limits). The defendant made a C.C.P. º998 offer of compromise for $1 million.
Specials in Evidence
all covered by insurance $901,800 (present value) $3 million
Injuries
The plaintiff was alleged to have suffered severe mental retardation. The plaintiff also claimed to suffered from constant seizures and the need for constant monitoring and round-the-clock care. The plaintiff has the mental capacity of a three year old and is not expected to ever be rehabilitated.
Other Information
The settlement was reached approximately one year and three months after the case was filed. A settlement conference was held Ed Richards, Esq., of MSC. The defendant offered $1.25 million, the $1.5 million, indicating there could be a settlement at around $1.8 million. The plaintiff agreed to keep the offer of the policy limits open to the end of business on the day of the mandatory settlement conference and the defendant eventually offered once cent less than the policy, which the plaintiff accepted.
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