WESLEYAN UNIVERSITY- PHILIPPINES
CABANATUAN CITY
COLLEGE OF NURSING
MEDICAL MALPRACTICE CASES
SUBMITTED BY: JOEY R. GREGORIO
SUBMITTED TO: PROF. MILDRED DE GUZMAN
$18 million settlement in a medical malpractice case involving the traumatic birth of a baby
boy who was deprived of oxygen during labor and delivery
What Happened: The case involved the traumatic birth of a baby boy on September 27, 2001. His Mom
was 2 days late and went in for a scheduled induction of labor on September 27, 2001. Pitocin induction
began at 7:00am and the baby was ultimately delivered by low forceps at 7:01pm. The course of labor
began with an absolutely perfect fetal heart tracing, but as the day wore on he began to show signs of
distress. He suffered from hypoxia (lack of oxygen) because his umbilical cord was being repeatedly
compressed and the mother's uterine contractions were happening too frequently (hyperstimulation). This
became evident due to the pattern of fetal heart decelerations that began to emerge on the fetal heart
tracing. We alleged that measures should have been taken to improve the baby's oxygenation, or test the
level of acid in his blood to verify the hypoxia, and/or intervene with a Cesarean delivery. Mom reached
the second stage of labor (the pushing stage) at 1:45pm. She pushed for 30 minutes but could not feel to
push effectively due to the level of anesthesia. Her epidural anesthetic was turned down at 2:15pm and
she resumed pushing at 3:00pm. She was directed to push for another 4 hours until she was exhausted.
The attending physician, Cynthia M. Phelan, M.D., who was an employee of Obstetrics and Gynecology,
P.C., was in and out of the labor and delivery room all day attending to other affairs -- seeing other
patients at her office, going to the clinic and ultimately left the hospital again at 5:00pm to see patients at
her office when her presence was needed. Mom was left in the care of the labor and delivery nurse, Anja
Koolhof, RN, an employee of both Cross Country Healthcare, Inc. and an "Unnamed Medical Institution"
(the name of the medical institution is subject to a confidentiality agreement). Dr. Phelan returned to the
hospital at about 6:40pm and performed the low forceps delivery.
The baby emerged lifeless, blue, and floppy. There was no joy of a baby's cry only overwhelming silence
and horror. Then there was chaos as he was handed off to a pediatrician and resuscitation team. It took 12
minutes to revive him. His blood gases showed severe asphyxia. The baby sustained global brain damage
due to oxygen deprivation during the labor and delivery process.
How The Baby Was Harmed: The baby suffered Hypoxic Ischemic Encephelopathy (HIE) and he has
been diagnosed with Cerebral Palsy of the spastic quadriplegic type. He is now 5 years old,
neurologically devastated and is totally dependent on the care of others for all activities. His Mother and
Father lived in Chicago in Bucktown when he was born. Mom was the office manager for an investment
banking firm and Dad was a professional photographer. They had to give up their jobs and move out of
state to be closer to family who could help with the baby's care. Dad took a job in a factory working the
night shift and Mom has devoted herself to caring for the baby and now their second child -- who was
born without incident by scheduled C-Section.
What They Did Wrong: Failure to identify and respond to fetal intolerance to labor shown on the fetal
heart tracing, failure to improve the baby's oxygenation, failure to perform fetal scalp pH sampling to
diagnose acidosis, failure to invoke the chain of command to effectuate timely delivery, failure to perform
a Cesarean section. The baby presented with an absolutely perfect fetal heart tracing and it deteriorated
without the necessary and appropriate intervention that would have prevented this tragic outcome.
The Defense They Mounted: The defense claimed that the brain damage was caused by some pre-
admission condition that set the baby up for this result, i.e. he was not physiologically capable of
withstanding the normal traumas associated with the typical labor and delivery. The defense also claimed
that the baby must have had a viral infection during the prenatal period and that the Fetal Heart Tracing
was not indicative of distress. Further, the defense claimed that the amount of damages sought were
excessive and hired their own life care planner and economist. The defense also hired a pediatric
physiatrist and argued a reduced life expectancy. The defense further attempted to admit Annuity
evidence to reduce the present cash value of the economic damages.
The Settlement: After four years of litigation settlement negotiations culminated and they paid
$18,000,000.00. The proceeds of this settlement were deposited into a special trust account for the benefit
of the child. The family will now be able to build a fully handicap accessible home, purchase a custom
van for transportation, receive round the clock nursing aid and purchase any necessary equipment for the
benefit of the child.
Appeals Court Affirms Medical Malpractice Finding but Reduces $900,000 Pain and Suffering
Award to $200,000
As regular readers know, we rail against appeals court judges who issue decisions that fail to explain
why they decrease (or increase) pain and suffering awards. Under CPLR 5501 and 5522, they are required
to explain their reasoning when they rule on requests to decrease or increase awards.
In a new medical malpractice lawsuit decision, Walsh v. Brown (2nd Dept., 2010), the plaintiff has been
left with $700,000 less than the $900,000 she was awarded after trial and without any adequate
explanation why.
After being diagnosed with endometrial cancer, 66 year old retired schoolteacher Margaret Walsh
consulted with Carol Brown, M.D., a gynecologic oncologist at Manhattan’s Memorial Sloan-Kettering
Cancer Center. The doctor recommended and on February 14, 2005 performed a total abdominal
hysterectomy, bilateral salpingo-oophorectomy and lymph node dissection – open surgery to remove the
uterus, cervix and ovaries.
To perform the surgery, doctors used retractors, like the ones illustrated above, in order to obtain and
maintain adequate exposure of the surgical site. That’s standard operating procedure. In this case, though,
are tractor was improperly placed on and compressed the right sided femoral nerve injuring it and leaving
Mrs. Walsh with femoral neuropathy.
The femoral nerve is located in the leg and supplies the muscles that help straighten the leg. It provides
sensation to the front of the thigh and part of the lower leg.
1. the doctor was negligent in her placement of a retractor against the femoral nerve,
2. doing so injured the nerve (femoral neuropathy), and
3. Plaintiff was entitled to a past pain and suffering award in the sum of $750,000 (4 years).
The jury declined to make any award at all for future pain and suffering.
On competing post-trial motions (plaintiff sought an increase in future damages while the defendant
sought a decrease in past damages), the trial judge issued an order that $150,000 be added to the verdict –
new total $900,000 ($750,000 past, $150,000 future). She did so because the jurors improperly ignored
evidence (including the defense doctor’s testimony that plaintiff has permanent residual weakness in her
leg).
Defendant appealed claiming that $750,000 was unreasonably excessive for past pain and
suffering and that the trial judge should not have awarded any future damages at all. In addition, the
defense claimed all along and on appeal that there was insufficient proof of any negligence; however that
argument was rejected by the jury and all of the judges. As to the amount of damages, though,
the plaintiff fared quite poorly with the appellate panel. Without any explanation at all, the judges reduced
the past pain and suffering award from $750,000 to $200,000 and they reinstated the award of zero for
future damages.
As to past pain and suffering, here’s what Mrs. Walsh endured for four years:
an extra two weeks or so as an inpatient after hysterectomy surgery, 10 weeks in a nursing home,
home therapy for 12 weeks and a year of outpatient physical therapy
continued weakness of her quadriceps and hip flexor muscles necessitating use of a quad cane to
walk
sensory loss and absent knee jerk reflexes
neuropathic pain syndrome – burning pain in her thigh and cramping
Mrs. Walsh was a previously active woman who exercised regularly on a treadmill but now she'll
never able to do so again. The jury saw fit to award $750,000 for her pain and suffering to the time of
trial, the trial judge approved and then the appellate judges simply and without explanation concluded that
$500,000 should be lopped off and Mrs. Walsh should get only $200,000 for her past pain and suffering.
As to future pain and suffering, there was testimony from doctors for both sides that the injury
waspermanent and that plaintiff still has right leg weakness which affects her ability to go up and down
stairs, kneel and bend her knees. Mrs. Walsh admitted that she is much improved but claimed she
still needs a quad cane to walk. In overturning the trial judge’s decision to award future damages, the
appellate court cited DeVito v. Ho (2nd Dept. 2006), however that case dealt with a simple wrist fracture
(no surgery) that required no treatment after six months. Although DeVito claimed some residual
weakness, there was other testimony that by the time of trial four years later, all of his accident injuries
had healed. DeVito received $60,000 for past pain and suffering and nothing for future damages. Clearly,
that case is distinguishable from Walsh v. Brownin that here the defense expert acknowledged
permanence and continuing disabilities.
