Facts

During the morning of July 20, 2000, Michelle Larson presented to Doe Hospital's labor and delivery department in preparation for the birth of plaintiff, Ethan Wert. At such time, fetal heart rate monitoring reflected a normal heart and reactive heart rate pattern suggestive of a neurologically healthy fetus.

Later that morning, Doe Doctor saw his patient and artificially ruptured her membranes. Fetal monitoring strips at such time were normal with good long term variability and no significant fetal heart rate accelerations or decelerations. Sometime thereafter, Doe Doctor left the hospital to return to his office.

At approximately 1:45 p.m., the labor and delivery nurse moved the patient onto her left side. At 2:05 p.m., repetitive late heart rate decelerations began. Between 2:10 p.m. and 2:20 p.m. late decelerations occurred after each contraction, long term variability was diminished and uterine baseline tone was elevated. Between 2:20 p.m. and 2:30 p.m., similar fetal monitoring findings persisted. No request was made by the nursing staff for the doctor to return to the hospital.

Between 2:30 p.m. and 2:40 p.m., late decelerations continued. The fetal heart rate baseline rose from 145 to 150 and long term variability was still diminished. Uterine hypertonuos was worsening.

At 2:43 p.m. the baby had a severe variable deceleration followed by a prolonged deceleration between 60 and 100 beats per minute for a period of seven minutes. During this time, the mother's uterus was hypertonic and a single contraction lasted five minutes. The nursing staff did not Stat summon the doctor to return to the hospital. No other assistance was requested for preparation of a likely C-section.

At 2:44 p.m., Doe Doctor's office was called by the nurse, but the nurse was placed on hold for a period of approximately eight minutes. When Doe Doctor finally answered the phone, the nurse failed to give him an accurate report regarding the fetal heart rate pattern, nor did she ask him to come to the hospital immediately.

At 2:58 p.m., the baby began to experience periododic moderate to severe variable decelerations, likely from cord compression. Doe Doctor was not called about these developments.

At approximately 3:19 p.m., a terminal event began with fetal heart rate levels dropping to 60 beats per minute without variability. Shortly thereafter, Doe Doctor was called to come to the operating room. At 3:34 p.m. Doe Doctor entered the operating room and at 3:39 p.m. Ethan was delivered.

After birth, the baby required intubation and resuscitation. No pediatrician or neonatalogist was present during the first eight minutes of life. During the eight minutes, the nurse improperly placed the endotracheal tube into the baby's stomach, thus further compromising his oxygenation. After the pediatrician arrived and withdrew the improperly placed endotracheal tube, bag mask ventilation was used until the baby was transferred, via helicopter, to a neonatal intensive care unit.

PLAINTIFF'S CONTENTIONS:
The plaintiff contended that the nursing staff violated the standard of care by failing to appreciate the fetal status and clinical picture and that the fetus was in danger. Such failures led to the nursing staff's failure to timely and properly communicate the baby's tenuous clinical picture to doe doctor. Such failures delayed the performance of an emergency C-section thereby resulting in plaintiff's anoxic brain injury. Plaintiff further contended that the baby was further compromised by the hospital's failure to properly intubate the baby during the first eight minutes of life. This failure further compromised his condition.

DEFENDANT'S CONTENTIONS:
Defendant contended that the nursing staff was, at all times, in compliance with the standard of care and that no negligence on its part caused the baby any harm. The defendant further contended that the plaintiff's condition was such that he has a very limited life expectancy and that, as such, he will suffer minimal future economic losses.

Settlement Discussions

Prior to the completion of percipient discovery, a court-ordered mandatory settlement conference was held. At the MSC, Doe Hospital offered $500,000 to settle the case and stated that it would never pay more than $1 million in settlement. The plaintiff demanded $6 million.

Damages

Plaintiff's life care planner and economist established economic loss in the amount of approximately $11 million in the event that Ethan lived a full life expectancy.

Injuries

Plaintiff Ethan Wert suffered a severe anoxic brain injury with consequent cerebral palsy, mental retardation and spastic quadriplegic.

Result

The case settled at the Mediation with Doe Hospital agreeing to pay a cash settlement to Ethan Wert in the amount of $2.25 million and a cash settlement to Michelle Larson in the amount of $250,000 in exchange for her release of any future wrongful death claim. Such payments were made, in addition to a $1 million policy limit settlement paid by Doe Doctor in 2004.

Other Information

Upon completion of percipient discovery and designation of expert witnesses, defendant filed a Motion for Summary Judgment. After two hearings on the Motion, the court denied the MSJ. Defendant filed a Writ challenging the trial court's ruling. Plaintiff opposed the Writ. The Writ was denied. Within days of the court of appeal's denial of the defendant's Writ and the commencement of expert depositions, a Mediation was scheduled with attorney Jay Horton of Judicate West in Santa Ana. The Mediation was within one week of the denial of the Writ.