Baby's family awarded $8-million settlement in malpractice case
Victim: 6-month-old baby
Injury: Life-long Disabilities
Lawyers: Marc J. Bern
Pediatric medical malpractice settlement: A child now suffers from seizures and a mental handicap because of medical malpractice suffered as a baby. When a mother brought her six-month-old baby to the doctor with a fever, she expected to get help. Instead, Weitz & Luxenberg attorney Marc J. Bern argued, failure to hospitalize the baby led to severe dehydration which caused a seizure, then hypoxia, leaving the child with a seizure disorder and a mental disability. The mother said that when she first brought her child in with a cough, a fever of 101 degrees and a sore throat, the doctor diagnosed adenoititis, prescribed an antibiotic, and ordered a test which showed potential signs of a virus.
Two days later the baby developed diarrhea and vomiting. The doctor weighed the baby at 16 lbs. and stopped the drugs because they can irritate the stomach. When the symptoms continued, she returned the following day. She said her child had a fever of 103 and had lost 1 lb. 5 oz. Still, the sick baby was sent home. Again the next day the worried mother returned to the office with continuing symptoms. The child was sent home with a prescription for Phenobarbital and the doctor noted a questionable virus or urinary tract infection. As Mr. Bern argued, although the doctor had ordered a test on the first visit, the results had not returned. The doctor then failed to ask whether the test had been taken, and made no diagnosis before the baby suffered a convulsion later that day.
According to the mother, that day, Christmas Eve, at the baby's grandparents she suffered a severe seizure losing consciousness and suffering hypoxia during the cab ride to the hospital. The hypoxia was diagnosed at the hospital and the baby was given the Last Rites. Fortunately, the child regained consciousness and was discharged four days later on anti-seizure medicine.
The child is now 15, and has been hospitalized four times for seizures despite the medication. An expert argued that when the fever, vomiting and diarrhea continued for several days and the child showed significant weight loss of 9% of body weight overnight, the doctor should have known that the baby was dehydrating and should be in a hospital. The continuing alleged dehydration caused salt to build up in the baby's cells, which caused the seizure leading to the hypoxia that in turn allegedly caused the permanent brain injury. According to the expert, if the child had been hospitalized at the right time, the seizure could have been avoided and the original cause of the symptoms could have been diagnosed.
The doctor's expert pediatric neurologist claimed that there were no signs of dehydration and that the hospital chart and doctors records did not show signs of dehydration. However, according to an expert for the victim, the hospital chart wasn't made until after the baby had been given fluids for sometime, so it could not be used to determine how dehydrated the child was when arriving at the hospital.
The plaintiff's expert further contended that the only likely cause for the significant loss of 9% of the baby's body weight in one day was the loss of a substantial amount of fluids and that it was clear that the child was dehydrated in the doctors office notwithstanding the absence of a mention of signs and symptoms of such dehydration.
The plaintiff also introduced evidence that in three years, the defendant, who is affiliated with three hospitals, had not admitted one child to the hospital. The plaintiff contended that the jury should consider that the defendant, a pediatrician, had failed to the boards certification exam on two occasions, was not board certified and that one of the criteria on the boards is clinical practice, which the plaintiff contended would include the decision on when to hospitalize a patient.
The plaintiff's expert contended that the initial convulsion caused the respiratory arrest and associated hypoxia and that the child was left with a border-line normal IQ, a learning disability that manifests primarily in extensive difficulties with simple mathematical skills and a seizure disorder which has caused four major seizures requiring hospitalizations despite the use of anti-seizure medication which the plaintiff's expert contended will be permanently required by the child.
The plaintiff contended that the infant plaintiff, currently 15, has great difficulties making change and that if she gives a clerk a $10 bill for an item, she will have significant problems determining the amount of change that should be forthcoming.
The defendant denied that the plaintiff's contentions as to a significant learning disability or cognitive deficit should be accepted, pointing to the fact that the plaintiff had successfully completed 9th grade in a timely manner. The plaintiff argued that it was likely that the teachers had taken the difficulties into account and had passed her along through the grades, arguing that the fact that she was able to continue in school did not reflect an absence of injury.
The plaintiff also contended that the jury should consider that the defense examining neuropsychologist had found that the child could not determine that if she gave a clerk $10.00 for a $5.00 item, she she would be entitled to $5.00 change. The expert testified that he had found that she would not do so, but the plaintiff contended that in his written account, he had indicated that she could not make such a determination. The plaintiff contended that the plaintiff will permanently suffer such cognitive deficit and will permanently suffer the seizure disorder. The plaintiff maintained that medical costs and medications will amount to approximately $96,000 over the course of her lifetime.
The defendant denied that the seizure disorder was related to the care provided by the defendant. The defendant's pediatric geneticist contended that based upon a history of epilepsy of the paternal uncle, it was likely that the condition was genetic in nature. The plaintiff countered that although the father and his brother suffering epilepsy shared the same mother, they had different fathers, and contended that in view of this factor, the familial relationship was particularly questionable. The plaintiff also contended that in view of the evidence that the initial seizure and hypoxia took place at the time of the alleged deviation, the defendant's position would, if accurate, constitute a highly unlikely coincidence. The plaintiff made no income claims. The case pre-dated CPLR Article 50 B and the award was not broken down between past and future damages.
The jury found for the plaintiff and awarded $3,000,000 for pain and suffering and $5,000,000 for medical costs. The defendant's post-trial motions, including excessiveness and that the $5,000,000 award for future medical costs did not conform to the $96,000 offered in proofs, is pending. The plaintiff had not proved any past medical costs and the damages interrogatories to the jury contained an initial question for pain and suffering that did not distinguish between past and future and a second question as to 'medical costs (future).' The plaintiff, who asked the jury during summation to consider that assessing $3,000,000 for past pain and suffering and $5,000,000 for future pain and suffering would be appropriate has taken the position that it is likely that the jury was mistaken in the medical costs award and had intended to render a $5,000,000 award for future pain and suffering, which position is vigorously disputed by the defendant. The Court has reserved on the post-trial motions and it should be noted that the defendant has $1,000,000 in coverage. Settlement negotiations are on-going.
COMMENTARY: It is felt that the jury rendered a particularly large award and the jury reaction stemming from an acceptance that the defendant ignored potentially dangerous signs of dehydration over the course of the two visits after the child suffering the high fever, vomiting and diarrhea, had exhibited the significant overnight weight loss which the plaintiff contended clearly reflected dehydration necessitating hospitalization, may well have been heightened by the evidence reflecting that the defendant, who is affiliated with three hospitals, had not hospitalized any patients in a three year period. Additionally, the plaintiff was permitted to delve into the defendant's credentials and establish that the defendant had failed the board certification exams twice and was not board certified and this factor also undermined the defendant's case. The defendant had denied that the seizure disorder was related to the care provided, contending that it was most likely genetic in nature. The plaintiff, who stressed that the first seizure leading to the oxygen deprivation occurred several hours after the last office visit, argued that in view of the temporal factor, it was especially clear that the plaintiff's expert's theory that dehydration caused the seizure disorder should be accepted. Additionally, the plaintiff emphasized that although the infant plaintiff's paternal uncle had epilepsy, her father and uncle did not share the same father, arguing that the familial aspect was not of great consequence.
Finally, the plaintiff stressed that no physician treating the plaintiff for the seizure disorder that has required four hospitalizations, or any physician treating her during ten unrelated hospitalizations for asthma, had ever considered such a genetic cause, arguing that the conclusion of the defendant's expert should not be accepted.
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