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    Legally Speaking: Pre-trial agreements alter monetary awards

    Claim that mismanaged labor led to brain damage

    In 2008, a New York woman was admitted to the hospital in labor at term. On examination by an obstetrician, she was found to be 3 cm dilated with good uterine contractions; 15 minutes later she was 5 cm dilated. About 40 minutes later oxytocin was administered. Over the next 40 minutes tachysystole developed and the oxytocin was discontinued. Deep prolonged decelerations in the fetal heart rate (FHR) were noted and after another 40 minutes terbutaline was given with immediate normalization of the FHR. Intermittent intrauterine resuscitation was performed over the next 3 hours until delivery occurred. The infant’s Apgar scores were 8 and 9.

    The infant had a seizure 14 hours later and an x-ray taken 6 days later showed brain damage. She was subsequently diagnosed with cerebral palsy and has spastic diplegia, near total blindness, inability to walk, and an impaired gastrointestinal system requiring her to subsist only on a specialized nutritional supplement.

    Recommended: Maternal obesity and the fetal brain

    The woman sued her primary obstetrician (who was not  at the delivery), the treating obstetrician, his practice, and the hospital, claiming that the infant’s injury was a result of a preventable event that occurred during the hours preceding delivery. The plaintiff’s attorney dismissed the claim against the primary obstetrician and negotiated a settlement with the hospital in the amount of $3 million. The case went to trial against the treating obstetrician and his practice, contending that oxytocin should not have been used and that the obstetrician did not properly monitor the effects of the drug. The woman claimed the tachysystole should have been treated immediately with terbutaline.

    The physician argued that the infant’s injury occurred before or after labor, citing a troubling blood-flow abnormality that was revealed during the week preceding labor and claiming the pregnancy was complicated by kidney infections requiring hospitalizations. He claimed that an intrapartum hypoxic event was not the cause of any injury, noting that the FHR promptly returned to normal after the tachysystole resolved.

    The verdict

    The jury found in favor of the infant and awarded damages of over $56 million.

    Inadequate treatment of group B strep infection alleged in preterm delivery

    An Illinois woman delivered a baby at 31 weeks’ gestation in 2008. She had tested positive for group B strep 5 months prior to delivery. The infant was subsequently diagnosed with periventricular leukomalacia (PVL) and suffers from cortical blindness, partial hearing loss, spastic quadriplegia, and speech/language impairments.

    The patient sued all those involved with her pregnancy and delivery. She alleged a failure to timely treat either herself or the child with antibiotics, resulting in the infant’s condition. She claimed she had chorioamnionitis and that antibiotics should have been given at least 4 hours before delivery, whereas she received them only 1 hour before even though she was at the hospital for more than 4 hours. She also claimed that no antibiotics were administered to the infant at the delivering hospital and that he had only 48 hours of antibiotics after he was transferred to a second hospital. The plaintiff’s medical expert claimed the failure to treat the infections was the proximate cause of the infant’s condition. The defense contended that the obstetrician did administer antibiotics in a timely fashion, and that prematurity was the cause of the PVL.

    The verdict

    The jury found in favor of the defense.


    The wide variation and unpredictability of jury verdicts and award amounts are the reasons many medical malpractice cases settle before a jury verdict is rendered. These are also the reasons plaintiffs and defendants may enter into a high/low agreement before trial. In the first case above, the large New York jury award included $2.3 million for future lost earnings, $1.5 million for past pain and suffering, $10 million for future pain and suffering, $1.17 million for future cost of nutrition products, $31.3 million for future cost of nursing care, $700,000 for future cost of special education, $4.8 million for future cost of therapy, $450,000 for future cost of a wheelchair-accessible vehicle, and several other future costs and past medical expenses.

    In the second case here, the patient and physician entered into a high/low agreement during the trial. This ensures that the plaintiff gets the low amount if there is a defense verdict, and caps the amount if the verdict is for the plaintiff. Here a $1.5 million/$9 million agreement was reached and because it was a defense verdict, the plaintiff received the $1.5 million in accordance with the deal. 

    NEXT: Delay in performing cesarean blamed for CP

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    • UBM User
      After years of reading about trial and settlement results, it strikes me that there is no real educational purpose reading about the cases selected. Clearly, as readers not privy to the additional details necessary to render a peer-reviewed opinion, we are left with a recurring theme. What are we supposed to conclude? Let's be frank - it is simply that our current tort system is incapable - by its own design - to render a predictable outcome. Attempts to rationalize this are disingenuous, at best. This is a national disgrace and our respective physician representative organizations have been frustrated for decades at every attempt to reform it by making the system fairer to the alleged injured party and to the providers who render care. OBGs and our specialty have taken many direct hits as a result. So, why do keep reading about these cases? Why are we even considering a strategy where the physician is put in a "catch-22" and loses each time? It may have something to do with the fact that the people in control of the system like it that way because they benefit? If they were actually concerned about the unreliable results of "their system" and if they had a conscious they would be proponents for an alternative system where justice could be reliably metered out.


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