By Damian D. Capozzola, Esq.
The Law Offices of Damian D. Capozzola, Los Angeles

Jamie Terrence, RN
President and Founder, Healthcare Risk Services
Former Director of Risk Management Services (2004-2013)
California Hospital Medical Center, Los Angeles

Elena N. Sandell, JD
UCLA School of Law, 2018

News: A child was born severely premature and suffered several medical conditions throughout her infancy, including severe respiratory problems. The child subsequently suffered a heart attack that led to significant loss of oxygen to her brain. The child lost the ability to walk, crawl, and carry out many normal life activities. A settlement of $5 million was reached in a medical malpractice suit.

Background: The patient, a child, was born premature at 23 weeks, weighing only approximately 1 pound. Her twin brother suffered extreme complications from premature childbirth and died three days after birth. The patient immediately required intensive neonatal care, and showed symptoms of morbidity consistent with those of a fetus born so prematurely. Specifically, the patient exhibited apnea and bradycardia, which were treated through caffeine medication; jaundice, which required phototherapy; and breathing difficulties, which required a ventilator to assist respiration for 52 days followed by 19 days on a continuous positive airway pressure machine. The patient was diagnosed with bronchopulmonary dysplasia.

After five months of treatment, including a prolonged stay in the neonatal intensive care unit, the patient was discharged in December 2013. However, the patient was to remain on oxygen therapy for her chronic lung disease, including a pulse oximeter and apnea monitor. The patient was prescribed multiple medications, and her parents received assistance from a nurse and education on how to use the medical devices. The patient visited a pediatrician several times after discharge.

The patient’s pediatrician visits included scheduled check-ups and emergency visits due to deteriorating health. During the first several months, the patient was successfully but slowly weaned off her supplemental oxygen requirement, but there were several events that indicated a deteriorating respiratory condition. The patient also developed frequent vomiting and difficulty feeding. In February 2014, the patient visited a pediatrician after an episode of increased coughing and wheezing. The patient was treated with inhaled albuterol and oral steroids. During subsequent visits, the patient’s pulse oximetry seemed stable.

In April 2014, the patient developed a urinary tract infection that required antibiotics. Around the same time, the mother brought the child to the pediatrician for an illness visit due to coughing and wheezing that, according to the mother, had been ongoing for two days. The pediatrician noted abnormal lung sounds that improved following treatment with inhaled albuterol and suctioning. Her oxygen saturation was reportedly greater than 96%. No further testing was performed.

A few days after the visit, the patient was found choking and suffered a cardiopulmonary arrest, and was rushed to the hospital. During resuscitation, the patient suffered a skull fracture that caused a brain bleed. This injury, combined with a hypoxic episode, worsened the patient’s frail health. Because of the patient’s compounding injuries and significant brain injury, she could not walk, crawl, or carry out many normal life activities.

The patient’s mother filed a medical malpractice action against multiple individual physicians and the hospital where the patient was born. The complaint alleged the physicians, including the patient’s pediatrician, failed to adequately and appropriately investigate the cause of the patient’s coughing, particularly during the patient’s most recent visit. Additionally, the plaintiff alleged that the physicians and hospital failed to insert a gastrostomy tube and perform a laparoscopic procedure, commonly known as a Nissen fundoplication.

The physician and hospital defendants initially denied liability. However, the parties eventually reached a settlement, and the defendants agreed to pay the plaintiff $5 million.

What this means to you: This case exemplifies the benefits of resolving medical malpractice litigation through negotiation and prior to an adverse verdict. There are many factors that can affect a mutual agreement between the parties and a settlement, but such efforts can be extremely beneficial to physicians and care providers to better control payment amounts in the event of liability and to reduce negative exposure and publicity.

In this case, the settlement was $5 million. While this is a substantial amount, a jury award could have been a lot worse. According to the physician expert reports, the six-year-old patient will never be able to walk, sit, talk, or eat by herself, and the injuries shortened her life expectancy. In addition, the patient will require continuous assistance throughout her life, as well as physical therapy and medical monitoring.

One likely reason for the reasonable settlement value in this case involved issues pertaining to causation, which is a necessary element for medical malpractice cases. Based on the patient’s extremely premature birth, experts offered conflicting opinions as to the connection between the patient’s injuries and the care provider’s actions related to the patient’s resuscitation and gastrointestinal issues. The defendants’ experts opined that the extremely premature birth was the primary reason for her developmental delays. While the brain injury certainly created an additional setback, most of the conditions the child suffered were common among infants born before week 28 of gestation. Additionally, the defendants’ pediatrician expert argued that after a careful review of all medical records, the patient’s pediatrician acted within the accepted standard of care.

The patient argued that the defendant pediatrician breached the standard of care by failing to further investigate the child’s cough and wheezing, as he only treated that with albuterol. Specifically, the plaintiff alleged the physician should have ordered X-rays, a repeat swallow test, and investigated the possibility of aspiration pneumonia, a complication of pulmonary aspiration that occurs when one inhales food or saliva into the lungs. The plaintiff also indicated that after the reports of continuous vomiting, the physician should have performed a Nissen fundoplication, a procedure that wraps the stomach around the lower part of the esophagus, and should have also inserted a gastrostomy tube. The plaintiff alleged these procedures would have prevented the patient from suffering the severe cardiopulmonary arrest and the brain injury that occurred during resuscitation.

Following the incident, the patient had to spend several months in the hospital and developed seizures for which she continues to take medication. However, according to the defendants, the medical records do not indicate the patient lost any of the milestones she had reached following the incident. According to the defendants’ expert, the results of the developmental tests that were performed shortly after birth demonstrated that her state of development remains consistent with standards for individuals born so prematurely. The expert also testified specifically about the patient’s birth weight and time spent on a respirator. The expert argued the respiratory and developmental injuries were expected. The expert said between 75% and 93% of babies born before week 28 of gestation and who have to spend at least 30 days on a ventilator sustain such injuries.

Although it may seem unpalatable, payment of $5 million by the defendants in this action was far more manageable compared to the patient’s initial demand of $40 million. Physicians and care providers are not infallible, mistakes happen, and the specter of liability looms whenever a patient suffers an injury, particularly a significant injury as in this case. Settlement provides a vehicle for care providers to prevent runaway jury verdicts. An additional benefit of settlement is that, in most cases, the results of settlement can be maintained as confidential — thus shielding care providers from negative headlines following multimillion-dollar jury verdicts. While this settlement became public (likely due to the involvement of a minor or other unique circumstances), such a case is the exception, not the rule. Thus, even if the settlement amount is ultimately the same — which is unlikely as settlement provides an opportunity to mitigate payment, too — the confidentiality aspect may be valuable to physicians and care providers who are interested in maintaining positive public opinion. It is almost always worth exploring such alternative resolutions, through informal settlement discussions and mediations, while simultaneously pursuing an aggressive defense in litigation. Working closely with experts and counsel will better help physicians and care providers understand their case to pursue such resolutions.


  • Decided on March 26, 2020, in the United States District Court for the Southern District of New York, Case Number 7:16-cv-08038.