News: A pregnant woman gave birth to premature twins. Following delivery, one of the twins struggled to breathe and suffered three seizures. The child was subsequently diagnosed with significant brain injuries and cerebral palsy.

The mother filed a lawsuit on behalf of her child, alleging the hospital’s actions constituted malpractice. The hospital denied liability. After a two-week trial, a jury awarded the patient nearly $35 million.

Background: In August 2007, a woman gave birth to twins at a hospital. The twins were born approximately one month early. Soon after birth, one of the babies experienced difficulty breathing. The child required breathing assistance from a bag valve mask ventilator before he could breathe on his own. In the early morning hours following the birth, the child was admitted to the special care nursery and eventually could breathe by himself. However, approximately 15 minutes later, the child suffered an apneic episode and again struggled to breathe. Hospital staff proceeded with the “blow-by oxygen” technique, which involves blowing oxygen near the child’s face. Hospital staff also attempted other techniques to stabilize the child’s condition.

Unfortunately, these efforts were not entirely successful. Nearly 30 minutes later, the child’s condition severely deteriorated, with oxygen readings at dangerously low levels. The child turned blue due to oxygen deprivation. Hospital staff intubated and placed the child on a ventilator, at which point he had high levels of acid in his body fluids. The child suffered three seizures in a short period. He was transported to a newborn ICU at a different hospital, where a CT scan confirmed the child suffered a brain injury that likely resulted from lack of oxygen. The child was diagnosed with cerebral palsy, a seizure disorder, and other disabilities.

The woman and her child, now a teenager, filed a lawsuit against the initial hospital, claiming the hospital’s actions caused the child’s brain injuries and permanent disabilities. Because of his disabilities, the child requires around-the-clock care. The plaintiffs alleged the hospital staff mishandled the initial indications of the child’s difficulty breathing, and failed to promptly contact the on-call physician. The plaintiffs focused on a 10-minute period, during which hospital staff failed to act to address the child’s lack of oxygen. After this period, the child suffered an apneic episode.

The plaintiff’s expert argued it was highly likely the child suffered from the apneic episode several minutes before the nursing staff acted. Furthermore, the expert opined that had staff acted promptly, including by notifying a pediatrician, the child’s injuries would have been far less severe, or could have been prevented.

The defendant hospital presented experts who attempted to contradict these claims. They argued it was likely the child suffered the brain injury days or weeks before the delivery. These contentions were refuted by the patient’s witnesses, including the obstetrician and pediatrician who monitored the child at birth and immediately after. Both witnesses stated the child was in a stable and healthy condition before the transfer to the special care nursery. Thus, the injuries must have arisen because of action or inaction after the delivery.

The trial lasted two weeks. After 11 hours of deliberation, the jury found in favor of the plaintiff. The jury awarded $35 million, allocating $32.2 million to the child’s future medical expenses. The remainder was awarded for lost future earnings ($1.3 million) and past medical expenses ($1.2 million).

What this means to you: One of the major takeaways from this case relates to the substantial adverse verdict imposed by the jury here: Nearly $35 million dollars, primarily allocated to the lifetime of anticipated medical expenses. Past and future expenses are a critical component that medical malpractice patients seek to recover. When the patient is an injured child, a lifetime of injuries can cascade into massive damages through projections and estimates of permanent or extensive medical care.

Care providers might consider using settlement techniques or vehicles to mitigate the potential for a runaway jury verdict with excessive damage awards. One such technique is a “high-low” agreement that guarantees the patient receives a minimum monetary amount regardless of the verdict, but also imposes a maximum monetary award to limit the defendant’s exposure.

This type of agreement is not disclosed to the jury, and does not hinder the defendant’s ability to generally challenge the allegations. A defendant could continue to argue they have not committed any malpractice, or could choose to admit liability but simply dispute the damages. Depending on the specific facts and circumstances of the case, such an approach may inure to the benefit of the defendant, making them appear reasonable and accepting of their fault, while also reducing burdensome costs of challenging the entire case.

For example, the parties in this case could have reached a high-low agreement of $2 million/$10 million. From the patient’s perspective, that would have guaranteed recovery of at least $2 million dollars, while the defendant would have limited its maximum exposure to $10 million. As a result, the jury’s award of nearly $35 million would have only entitled the patient to $10 million. High-low agreements can be reached at any time, even once the jury has begun deliberations. Depending on how negotiations and settlement discussions proceed generally with medical malpractice plaintiffs, defendant physicians and care providers could consider exploring a high-low agreement to mitigate the inherent risk of litigation.

In this matter, the defendant hospital’s liability arose because of the staff’s failure to monitor the newborn and failure to promptly contact an on-call physician for further evaluation. The jury found these inactions constituted malpractice as the hospital had a duty to the mother and child. These shortcomings by staff constituted a breach of those duties, and caused the child’s permanent and significant injuries.

It is essential for hospitals without NICU facilities to make arrangements with hospitals that do. All premature births should be evaluated by a neonatologist, especially twin births. A transfer via ambulance with neonatal staff and neonatal resuscitation equipment is a standard procedure, the cost of which will be easily worth spending as these types of cases can easily become multimillion-dollar lawsuits. Although staff might be well trained to intervene, the fact is, unless they see this condition in neonates frequently enough, they will not look for it or recognize it in time to mitigate harm.

While the parties presented conflicting expert testimony, the patient’s experts presented more compelling testimony, and the jury rejected the defendant’s argument the injuries existed before the delivery. However, had the defendant succeeded, the jury could have concluded the injuries were pre-existing, and the staff’s inadequate monitoring and follow-up would have been irrelevant.

Another lesson from this case is that entities, such as hospitals, surgery centers, or medical practice groups, may bear liability for the actions of their employees or agents — a legal doctrine known as “respondeat superior.” Hospitals and other entities are legally responsible for the wrongful acts of their employees or agents; this applies with great force to issues arising out of actions by staff. This doctrine does not apply to independent contractors. Depending on a hospital or entity’s particular state of operation, it might be harder to determine whether a physician is an employee or independent contractor. Nevertheless, from an entity’s perspective, it might be necessary or beneficial to argue the individual wrongdoer was acting outside the scope of their employment, or was not even an employee at all. Entities should carefully craft and evaluate their relationships with physicians when considering issues about such ascribed responsibility.


  • Decided Aug. 19, 2021, in the Circuit Court for Baltimore City, Massachusetts, Case Number 24-C-19-005417.