Physician Legal Review & Commentary

Parents awarded $74M in brain injury birth

News: In 2009, a woman delivered a full-term baby with a prolonged second stage labor. Unfortunately, the baby was deprived of oxygen during the delivery and suffered from brain damage and cerebral palsy. The parents filed a lawsuit against the obstetrician and the hospital. The hospital settled with the family, but the lawsuit continued against the obstetrician. The parents alleged that the obstetrician neglected to assist delivery and adequately monitor the baby's heart rate, which resulted in brain damage and cerebral palsy. The obstetrician denied all claims. In 2012, a jury found for the plaintiff parents and awarded $74.225 million in damages.

Background: On April 19, 2009, a newborn girl was delivered to her parents by an obstetrician in their local hospital. The delivery was only three hours long, but the mother suffered a prolonged second stage labor that necessitated a resuscitation of the baby after she was born. The baby is now 3 years old and suffers from brain damage and cerebral palsy.

Plaintiff parents alleged that defendants, the obstetrician and the hospital, provided substandard care during the delivery. Both parents claimed to have suffered bystander emotional distress from observing the negligence inflicted upon their newborn daughter. The mother made a separate claim of emotional distress, because she was an independent patient of the obstetrician and hospital. Plaintiffs argued that the obstetrician neglected to assist delivery by using forceps, vacuum, or by performing an episiotomy. Plaintiffs also claimed that the baby's heart rate fluctuated wildly, and the heart rate monitor went out several times during the three hours prior to the baby's birth. Plaintiffs claimed that even after the fluctuating heart rate, defendant obstetrician did nothing to expedite the delivery after the baby's heart rate dropped several minutes before delivery. Plaintiffs also claimed that defendant obstetrician did not conduct a proper examination of the cord blood. Plaintiffs' attorney claimed that the umbilical cord was wrapped around the baby's neck when she was delivered, which with the prolonged second stage delivery was the cause of extensive oxygen deprivation. The baby was born "depressed" and suffered brain damage when the obstetrician neglected to assist the delivery and the hospital staff could not appropriately intubate or ventilate her. The now 3-year-old child suffers from severe physical and neurological injuries, including cerebral palsy, and requires significant, lifelong medical attention and 24-hour care.

Defendant hospital settled with the plaintiffs mid-trial for an undisclosed amount of money. According to the plaintiffs' attorney, defendant obstetrician desired to settle the case, but his insurance company refused to participate in a settlement of the allegations prior to trial. Defendant obstetrician denied all allegations of negligence related to the birth, and claimed the baby's parents assumed the risk of birth related injury and did not exercise ordinary care and caution. He asserted that if any damages were sustained by plaintiffs, those damages were directly and proximately caused by the negligence of the plaintiffs. Defendant obstetrician also claimed that any damages suffered by the plaintiffs were related to the negligence of outside entities, corporations, or persons, and the negligence inflicted by those outside entities comparatively reduces the percentage of negligence by defendant obstetrician if any were found.

Defendant obstetrician also claimed that a blockage of mucus in the airway was the cause of the loss of oxygen to the baby's brain and resulting cerebral palsy. This claim was in direct opposition to plaintiff's claim that the umbilical cord wrapped around the baby's neck was the cause of the loss of oxygen. Defendant obstetrician argued that the baby's heart rate was being appropriately monitored. The obstetrician claimed that the baby's heart rate appeared normal to the obstetrician and nurses throughout the delivery and that all involved thought it was safe to proceed with labor.

The trial lasted approximately seven weeks, and the jury only spent two days in deliberation. The jury unanimously found that the obstetrician breached his duty, failed to adhere to the standard of practice in the community with respect to medical treatment, acted negligently, and caused substantial harm to the infant. The jury also held that the child has a reduced life expectancy of 63 years and a lost earning capacity of $10 million. In his closing argument, plaintiffs' attorney asked the jury to award the family $78 million in damages. The jury elected to award $53 million in future medical expenses, $225,000 in past non-economic damages, $7.5 million in future non-economic damages, $1.3 million to the father for past and future non-economic damages, and $2.5 million to the mother for past and future non-economic damages.

The verdict is one of the largest medical malpractice awards in the history of the court awarding it. Post-verdict interviews conducted by plaintiffs' attorneys revealed that jurors had been divided on the issue of damages, and some jurors wanted to award even more money to the family. Plaintiffs spoke to reporters outside of the court room after the damages were awarded. They said it was a difficult decision to bring a lawsuit and they hoped the result is a greater accountability in the medical community.

What this means to you: The term "cerebral palsy" describes a group of disorders impairing posture, muscle tone, or movement. It is known to be the most common disability among children in the United States. It is caused by events that occur before (abnormal development in utero), during, or after birth (injury-related). Premature birth contributes to 50% of all cerebral palsy diagnoses. Cerebral palsy is considered to be non-progressive, with no known cure, and might be difficult to diagnose in a child's first year of life unless symptoms are severe.

Some of the known causes of cerebral palsy, in addition to prematurity, are drug or alcohol abuse during pregnancy, an infection or anemia while pregnant, a difference in blood type between mother and baby, hydrocephalus, encephalitis, meningitis, lack of oxygen to the baby during development or delivery, severe head injury or convulsions in the baby, and postpartum jaundice. Hypoxia (oxygen deprivation) during the birth process might contribute to cerebral palsy as well as to mental retardation, epilepsy, lung infections, or multi-organ failure.

This case, involving an alleged prolonged and traumatic birth leading to cerebral palsy and permanent brain injury, is of particular interest with regard to its outcome. The hospital, in its decision to settle out of court, utilized a risk management strategy frequently seen in "bad" baby cases, where a sympathetic jury can pose an unpredictable threat in terms of an excessive damages award. The hospital opted not to chance a trial. Counsel for the obstetrician might have had no option but to take the case to trial due to defendant's insurance company refusing to successfully mediate the case, therefore accepting the risk of trial.

The magnitude of the jury award at $74.225 million, in light of commonality and cause, is a surprise. It must have been a devastating surprise to the obstetrician and his insurance company. Factors in determining damage awards include the finding of negligence, followed by the severity and permanency of injuries sustained and the lifelong costs associated with caring for the injured plaintiff. Introduction into this case of the parents' "bystander emotional distress" also served to appeal to the need for an excessive punitive damages award and favorable verdict for the plaintiff. Bystander emotional distress paints a difficult and heart-wrenching picture. A monetary award of this degree equates to the enormity of negligence and subsequent pain and suffering perceived by the jury.

There is cost associated with deviation from standards of care. When healthcare providers consciously choose to ignore or inadvertently deviate from evidence-based, prudent, and safe methods of practice, loss occurs. For the practitioner, the loss is not only financial; it carries with it the burden of punishment and loss of reputation and trust. For patients, loss can be temporary or permanent, physical, emotional, and psychological, and it can alter their lifestyles or end their lives. For jurors and taxpayers, it is loss of time and the incurrence of judicial system expenses.

Is there an acceptable level of compensation for negligent events that cause harm or wrongful death? The jury, in this case, presumed so. Some of the jurors revealed they wanted to award even more, evidence of the emotional and judgmental costs involved. The jury decided to send a message of zero tolerance for negligence and did so with a plaintiff award of $74.225 million.

What does this mean? As healthcare providers and consumers, we must share a common goal of 100% compliance with regulatory requirements, as well as quality and excellence initiatives, and reinforce the expectation of doing things right by doing the right thing. Integrity should motivate us, not the fear of litigation or punitive financial awards.


No. CV 10-0071 (Cal.Super.Ct. 2012), 2012 WL 1569734 (April 20, 2012).