February 24, 2015, PNLR E-Newsletter
Delayed delivery results in brain injury
The parents of an infant whose birth was delayed despite evidence of fetal distress sued the hospital and the United States—which employed several of the attending physicians—alleging failure to perform a timely delivery. The parties settled at mediation for $25.25 million. Doe v. U.S.
In the 37th week of her pregnancy, Doe was admitted to a hospital and was attached to an electronic fetal monitor. About five hours later, the fetal monitoring tracings showed minimal long-term variability and a lack of accelerations. Two attending physicians reviewed these findings. About eight hours later, the monitor showed absent long-term variability and no accelerations. That night, an attending physician ordered a biophysical profile, which was performed early the next morning and showed a total score of two out of ten.
Although fetal monitoring continued to show absent variability, no declarations, and a low baseline heart rate, Doe’s labor was allowed to continue.
After about two hours, however, a physican ordered an emergency cesarean section. Doe’s son was born in an extremely depressed state with Apgar scores of one at one minute and two at five minutes. Now 5, he has been diagnosed as having suffered a severe hypoxic-ischemic brain injury, which affects his intellectual, speech, and motor functioning, among other things.
The child’s parents, individually and on his behalf, sued the hospital and the United States, which employed several of the attending physicians, alleging failure to perform a timely delivery in light of fetal distress.
The court awarded about $29.81 million subject to a $1.65 million setoff. The United States appealed, and the parties later settled at mediation for $25.25 million. The United States paid $23.6 million, and the hospital, the rest.
Citation: Doe v. U.S., No. 10-cv-0910-DRH-SCW (S.D. Ill. Jan. 26, 2015).
Plaintiff counsel: AAJ members Robert S. Baizer and Joseph E. Kolar, both of Highland Park, Ill.