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Birth Injury Malpractice

A jury has issued a $31 million verdict against an Ohio hospital in a birth injury case, which could be the largest jury award for a medical malpractice case in that state’s history. The verdict included nearly $26 million for future medical care for the boy, who is now 8.

The boy has severe cerebral palsy. He cannot speak, uses a feeding tube, can’t walk and has difficulty holding anything in his hands. He will never be able to work, and his parents are now his health care givers 24 hours a day. As usual, this has caused the family to reduce their income to take care of the child.

The Plaintiffs alleged that the boy suffered permanent, irreversible brain damage during his birth. The boy’s mother was a VBAC patient, meaning she would deliver the boy vaginally, though she had previously had a Caesarian section. That meant she was at a higher risk for a ruptured uterus during labor, which occurred. At that point, the mother’s body stopped providing necessary oxygen through the placenta, though the boy had yet to be born. The family estimated that he went 18 to 20 minutes without oxygen.

According to the family, the hospital staff, which knew the mother was a high-risk patient, committed malpractice by failing to monitor the labor properly, by failing to diagnosis the stimulation of her uterus, by improperly the drug Pitocin and by not telling the lead doctor of her inappropriate contraction pattern. The nurses continued to give her Pitocin, even as her contractions quickened to unsafe levels. A copy of the article regarding the case can be found here.

Interestingly, the family in this medical malpractice case reached a settlement agreement with the hospital before the jury returned its verdict. This is not uncommon in medical malpractice cases that go to trial, as the stakes are usually high. Typically, during trial, when one side presents its case, the other side is continuously evaluating its probability of success. For example, when the defense presents its expert and other witnesses, the plaintiffs’ lawyers are assessing whether their case is getting stronger or weaker. At some point, one side or even both may realize that the case is not going as well as expected and that a settlement is in their best interest to avoid the risk of losing. When that happens, negotiations usually ensure and a settlement may be reached. Sometimes, it’s a straightforward medical malpractice settlement where the parties reach an agreement and the case ends. But sometimes, the defense wants to see whether the jury will side with the plaintiff before the defense is willing to pay. In that type of case, the jury decides the issue of whether a doctor committed malpractice (called liability) and usually whether the malpractice caused any injury (called causation). Then, once the jury had decided liability and causation in the plaintiff’s favor, the plaintiff will get a certain settlement amount.

There ever are high-low medical malpractice settlements. In such a case, the parties agree two figures – the high and the low; for example, $1 million and $3 million. Then, if the verdict is below $1 million, the plaintiff gets at least $1 million. If the verdict is between the high-low amount – say $1.5 million – the plaintiff gets at the verdict amout. Finally, if the verdict is above the high number – say $10 million – the Plaintiff gets the high amount of $3 million. This is a way to guarantee that the plaintiff gets something while capping the defendant’s exposure.

I have successfully handled a number of medical malpractice / medical negligence / medical error cases in Baltimore and other counties in Maryland involving settlements like this. There are many creative ways to settle a medical malpractice case. Sometimes a straightforward settlement is in the parties’ best interest. But other times, a creative settlement like this is warranted.

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