Legal Review & Commentary

Hypoxic brain injury in birth yields $144M verdict for teen

News: A woman presented to the hospital for induction of labor on Dec. 1, 1995, and she vaginally delivered a 10-pound, 12-ounce baby girl. The baby was not breathing at the time of birth and had poor tone, seizures, brain hemorrhages, and a fractured left clavicle. She was hospitalized in the intensive care unit for three weeks, and she was diagnosed with profound retardation and cerebral palsy. She is now 16 years old and requires round-the-clock medical care. A lawsuit was filed against the hospital and attending OB/GYN by the child's mother on her behalf. Following trial, the jury returned a verdict of $144 million. Pursuant to the applicable state law regarding present value reductions and statutory caps, that amount was reduced to $40 million. Post-trial motions are pending, and defendants are expected to appeal.

Background: During her pregnancy, the plaintiff gained 70 pounds and developed gestational diabetes. She presented to the hospital for induction of labor on Dec. 1, 1995. Pitocin was administered to induce labor, and the plaintiff was actively pushing for two hours. The baby weighed 10 pounds, 12 ounces upon delivery, and she was not breathing. She had scalp and facial bruising and swelling, poor tone, seizures, and a fractured left clavicle. Her skin was described as appearing purple and black in color, evidencing bruising and trauma. Plaintiff also claimed the child suffered multiple brain hemorrhages. Defendant contended that the child suffered only minor intraventricular hemorrhages, which were not in the actual substance of the brain. The baby was hospitalized in the ICU for three weeks, and she was diagnosed with cerebral palsy and hypoxic-ischemic encephalopathy. She is quadriplegic and requires 24-hour medical care.

Plaintiff argued that the OB/GYN was negligent in failing to accurately assess the baby's size prior to delivery. They asserted that the baby was larger than expected due to gestational diabetes. They said that the diabetes, coupled with the mother's weight gain, should have alerted the defendants to the baby's increased size. Plaintiff further argued that the hospital and OB/GYN were negligent in failing to offer a C-section, which allowed the baby to be crushed in the birth canal during delivery. Additionally, plaintiff argued that the hospital negligently selected, employed, trained, and monitored its employees/physicians.

The defense focused on the child's alleged genetic condition as the cause of her injuries and asserted that no hypoxic event took place during the birth. The venous cord gas reading was normal. Ultrasound, CT, and MRI images of the brain showed no evidence of oxygen deprivation or traumatic injury. Moreover, the images showed that 50% of the child's cerebellum and 33% of her brainstem were not present due to a genetic birth defect. Results from court-ordered blood testing during discovery pointed to a diagnosis of pontocerebellar hypoplasia (PCH), a rare condition which results in lack of formation of the brain, profound retardation, spinal cord atrophy, weak muscle tone, difficulty eating/swallowing, and spastic quadriplegia. There are only a few hundred cases of this condition on record, and the child at issue would be the first to be diagnosed in the United States. The condition is progressive and often fatal in infancy. Defendants also argued that there was no evidence of gestational diabetes, as a three-hour glucose tolerance test was normal. Additionally, they argued that estimated fetal weight, as per the prenatal ultrasounds, did not indicate a need for C-section. They said that the mother's morbid obesity prevented an accurate fetal weight estimate.

Experts included a pediatric neurologist, a pediatric neuroradiolgist, an OB/GYN, and a fetal specialist.

The jury returned a verdict of $144 million. About $13.5 million of that amount represented an award for past and future pain and suffering; however, pursuant to the applicable state law, non-economic damages were capped at $738,000. The remainder of the award represents economic damages, including 24-hour care for 77 years, and lost earning capacity. The defense filed 10 post-trial motions and contends that healthcare costs should be capped under $2 million, in part, because the child's genetic condition will likely shorten her life span. The defense also has indicated it will appeal the verdict.

What this means to you: This case presents a vivid and horrifying description of a traumatic birth resulting in multiple and permanent injuries. Although defense counsel presented arguments of genetic birth defects, normal glucose tolerance test results, and maternal obesity prohibiting an accurate fetal weight, the jury clearly was sympathetic to the plaintiff, as evidenced by the initial verdict awarding $144 million. The defense arguments were plentiful, sophisticated, and well-researched, but apparently they did not override for the jury the images of crushing birth canal injuries and inadequate prenatal assessments and care. Birth, infant, or child malpractice and negligence cases present some of the highest risks for healthcare organizations as damages and award projections are lifelong, as are care expenses and loss of income. The Jurors in this case concluded that the physician who delivered the baby and the hospital were negligent.

One of the pivotal elements in this case was the mother's 70-pound weight gain during the pregnancy. The weight gain factor alone should have alerted the physician, his staff, and hospital personnel to the increased potential for complications arising during the pre-natal, perinatal, and post-partum periods. Plaintiff's counsel argued that it was the responsibility of the physician and the hospital to determine the baby's size and the need for a C-section due to the mother's diagnosis of gestational diabetes and her significant weight gain. The jury agreed that the failure of the physician and hospital to determine the baby's size and consider a C-section was a violation of the standard of care. There was no question as to injury. Causation was thoroughly argued by both counsels.

Of note in this case, the parents were not parties to the lawsuit; in other words, there was no claim for pain and suffering made on their behalf. Also of note, this case was filed in 2005, 10 years after the plaintiff's birth. What does this mean to you? As risk managers, we always must be mindful of the statute of limitations on cases and remain diligent on those events involving infants and children, where the limitation timeframe differs from other claims of negligence. A Notice of Intent for litigation could arise long after an organization and its risk managers consider the claim potential closed. Investigating well all the facts of the adverse event and maintaining full knowledge of the risks of the occurrence prepares risk and claims managers for the possibility of future claims and/or litigation.

Also of note in this case, the plaintiff argued that the hospital was negligent in the selection, training, and monitoring of its employees and physicians. To reduce the risk of such allegations, it is important for an organization to maintain well-documented education, orientation, and inservice records, personnel files, and evidence of adherence to Centers for Medicare and Medicaid (CMS) and The Joint Commission regulatory requirements and guidelines for competency and credentialing. The organization must demonstrate effective peer review processes and consistent practices for corrective plans of action when a practitioner fails to meet the standard of care. The Joint Commission requires utilization of OPPE (Ongoing Professional Practice Evaluation) and FPPE (Focused Professional Practice Evaluation) to ensure safe and reliable care for patients.

It is difficult to assess the financial impact to an organization of a three-week trial requiring several parties of defense counsel, expert witnesses, and associated court costs. Not only was the verdict in this case financially devastating, but the human resources, time, and energy required and devoted to a case such as this one could place a long-term economic burden on the healthcare providers. The importance of creating and maintaining a culture of patient safety in order to minimize risks for the patient and for the organization must be a top priority.

And what of the plaintiff, destined to require 24/7 care and assistance for the remainder of her life? There is no means of truly assessing the impact for her.


Vanslembrouck v. William Beaumont Hospital, et al. Circuit Court of Michigan, Oakland County. Case No. 2006-074585-NH. F