On October 10, 2003, Mary Swanson, then 41 years old, delivered her fourth child, Michael, at a hospital in Mount Kisco, New York. During delivery, shoulder dystocia was encountered (a condition at delivery in which the baby’s shoulder gets hung up on the mother’s pubic bone after delivery of the baby’s head).
Here is what the delivery looks like in many shoulder dystocia cases:
Due to the application of force to relieve the dystocia, Michael sustained a brachial plexus injury (known as Erb’s palsy, a usually transient condition in which nerve roots of the spinal cord are damaged and, typically, a child’s arm becomes pulled in towards his body and internally rotated).
Here are the nerves whose damage can cause Erb’s palsy:
Michael’s parents sued the hospital and Mary’s obstetrician claiming that the shoulder dystocia problem was mismanaged, its resolution wrongly delayed and excessive force applied to the baby’s head during nine minutes from delivery of the head until full delivery. As a result, plaintiffs claimed that Michael sustained not only a brachial plexus injury but also asphyxia (loss of consciousness due to too little oxygen) and a brainstem injury leaving him with developmental delays, including speech, language and cognitive function deficits as well as difficulty swallowing and recurrent aspiration syndrome.
Michael did not testify during the trial, however plaintiffs played for the jury a videotape taken at various times during the year before trial showing Michael and depicting his injuries and symptoms.
After a 14 day trial in Swanson v. Northern Westchester Hospital Center (Supreme Court, Westchester County, Index # 16743/07), on December 11, 2009, a Westchester County jury determined that the defendants had indeed been negligent and liability was apportioned 75% to the doctor (and her practice group) and 25% to the hospital.
Damages were assessed in the sum of almost $56,000,000 – including $22,000,000 for Michael’s pain and suffering ($2,000,000 past – 6 years, $20,000,000 future – 69 years), $29,000,000 for a lifetime of medical, rehabilitation and custodial care costs and $4,600,000 for future lost earnings).
After trial, the hospital asked the trial judge to set aside the liability verdict as irrational and without basis in fact. As to the hospital, plaintiffs argued that a delivery room nurse (an employee of the hospital) was negligent when she improperly initiated the delivery process without supervision or notification to the attending physician. The trial judge discussed the conflicts in evidence as to what happened in the delivery room, when and who was present, and in his post-trial decision on June 24, 2010, he rejected the hospital’s motion to set aside the jury verdict on liability.
The hospital’s post-trial motion also argued that the damages award was grossly excessive and required a substantial reduction; however, the judge gave short shrift to this claim and, as to the $22,000,000 pain and suffering award, merely stated that it “did not deviate materially from what would be reasonable compensation in the circumstances at bar.”
The judge cited no cases and gave no explanation for upholding this enormous pain and suffering verdict despite the substantial briefing of this issue by the parties that was presented to him and the many appellate court decisions that have dealt with and discussed multi-million dollar pain and suffering awards.
Should liability against the hospital be upheld, it’s quite likely that the appellate court will hold that the $22,000,000 pain and suffering award is grossly excessive and slash substantially in view of recent relevant appellate court cases dealing with injuries and conditions that appear to be much worse than those dealt with by Michael Swanson, such as cerebral palsy, and which determined that pain and suffering damages should be reduced to the $3,000,000 to $4,250,000 range.
Here are some of the cases that should have been discussed by the trial judge in considering the propriety of the jury’s pain and suffering award and that will likely be considered by the appeals court:
- Maing v. Fong (2nd Dept 2010), a case we discussed recently, here, in which the appeals court increased to $4,150,000 from $2,650,000 a pain and suffering award for a boy whose brain damage from medical malpractice at birth left him with left side hemiparesis and attention deficit disorder
- Flaherty v. Fromberg (2nd Dept. 2007) – infant suffered anoxia and acidosis in utero for 21 minutes before delivery via C-section ultimately diagnosed with severe cerebral palsy and spastic quadriparesis; jury awarded him pain and suffering damages in the sum of $20,250,000 reduced on appeal to $4,250,000
- Lovett v. Interfaith Medcial Center (2nd Dept. 2008) – post-natal brain hemorrhage and hydrocephalus led to infant’s cerebral palsy; $4,575,000 pain and suffering award reduced on appeal to $3,000,000
- Avila v. City of New York (1st Dept. 2010) – $8,000,000 verdict for birth related brain damage leading to mild cerebral palsy and global developmental delays set aside on appeal due to trial errors; new trial ordered; discussed in detail here
Shortly after trial, the Swansons accepted a settlement offer from the doctor and her group representing their full malpractice insurance policy limits of about $3,300,000. Under CPLR 1207, a settlement for an infant such as Michael must be approved by the trial judge and papers seeking such approval have been presented to the judge.
The hospital has determined to appeal, arguing that there was no basis for any liability at all against it and, alternatively, that the damage awards (not only the pain and suffering but also the costs and need for medical, rehabilitation and custodial care, and the future lost earnings) were grossly excessive and must be substantially reduced.
- Michael’s developmental delays did not begin for two years during which time he had no special treatment or abnormal diseases and the defense argued that no error during the birthing process could possibly have caused the delays.
- In their bill of particulars dated December 26, 2006, Michael’s lawyers made injury claims only for shoulder dystocia, brachial plexus, asymmetric hand/arm movements, cervical hematoma and facial and arm bruising. Thereafter, with new attorneys, on November 8, 2007, claims were added for perinatal distress, acidosis, asphyxia and global developmental delays.
- Plaintiff’s expert pediatric neurologist testified that Michael’s brain damage resulted from an injury to his vertebral artery and he has lateral medullary syndrome (also known as Wallenberg’s Syndrome), however, he admitted that this is caused by a stroke and he’d never in 20 years of practice diagnosed a child with this syndrome.
- The defense expert opined that traction as applied to the shoulder causing Erb’s palsy in no way can injure the vertebral artery and that there was no injury at all to Michael’s brain as a result of the labor or delivery.
- There was evidence that the hospital’s records as to this incident may have been changed or altered after the fact. Its original chart was missing and a microfiche of the records was produced that had been prepared almost three years after the delivery. During deliberations, the jury sent out a note asking if they found the hospital not liable for physical injuries to Michael, but should pay restitution for sloppy record-keeping and/or falsification of documents, could they still award damages. The judge told them “no” but thereafter they returned their verdict for the plaintiffs. The defense claims that this note shows the jury’s stated intention to impose restitution and penalize the hospital for improper reasons.
- During trial, plaintiff had offered to settle with the obstetrician for $1,850,000 and her practice group for $850,000 – $600,000 less than their post-verdict full policy limits settlements.
- In closing arguments Michael’s attorney suggested an award of $1-3 million for past pain and suffering and as to the future 69 years asked: “Is $10,000,000 over 70 years too much? Or too little?” Clearly, the jury found it was too little.
We will follow this case for its appellate court resolution.
UPDATE: The case settled for $3,600,000 before any appeal.