Susan Skelly-Hand was pregnant with her second child when, on February 25, 1996 at about 12:15 p.m., her water broke and her husband drove her to the hospital in Potsdam, New York. There, she met Jose Lizardi, M.D., the obstetrician who, two years earlier, delivered her first child. At 8:15 p.m. Rachel Elizabeth Hand was born weighing nine pounds, two ounces.
Unfortunately, Rachel’s right shoulder had become lodged against her mother’s pubic bone during the delivery (a condition known as shoulder dystocia).
As a result of the shoulder dystocia, Dr. Lizardi had to pull Rachel out with excessive force causing an injury to her brachial plexus (the network of nerves that sends signals from one’s spine to one’s shoulder, arm and hand) and she was diagnosed with Erb’s palsy (a form of paralysis causing arm weakness and loss of motion).
After years of treatment in a mostly futile effort to gain normal function of her right arm, Rachel’s parents brought a lawsuit against Dr. Lizardi alleging that he was negligent in failing to prepare for and perform a cesarean section, a procedure that would have avoided the dystocia and resulting injuries.
After eight days of trial, on June 27, 2012, the St. Lawrence County jurors rendered their verdict that the doctor was negligent, apparently based upon plaintiff’s expert’s testimony that:
- shoulder dystocia can be predicted and avoided by evaluating certain risk factors (e.g., if the mother is short and obese and if the baby’s birth weight is expected to be more than about eight pounds 13 ounces) and
- delivery should be by cesarean section when there is a significant risk of shoulder dystocia.
Pain and suffering damages were awarded in the sum of $2,000,000 ($1,000,000 past – 16 years, $1,000,000 future – 65 years) and in Skelly-Hand v. Lizardi (3d Dept. 2013), both the liability finding and the damages awards were affirmed on appeal.
The court’s decision provides a good summary of plaintiff’s injuries and treatment, as well as a discussion of the prior cases and decisions that have dealt with damages in Erb’s palsy cases.
Here are details of the five surgeries underwent by Rachel Hand between the ages of 13 months and 15 years:
- Removal of scar tissue, nerve grafting, nerve repair and muscle repair, with an “L” shaped incision in Rachel’s neck from her ear down to her collar bone
- Muscle lengthening and re-tightening
- Biceps tendon lengthening and tightening of shoulder dislocation
- Triangle tilt procedure in which the scapula and clavicle bones were cut to allow the shoulder to tilt back to neutral
- Elbow procedure with serial casting to straighten out the elbow
All five surgeries were performed by Texas surgeon Rahul Nath, M.D., a world renowned brachial plexus injury specialist (whose videotaped testimony was shown to the jury). They were very painful, involved extensive travel and disruption and were followed by long periods of rehabilitation with braces, casts and splints. Unfortunately, the surgeries did not resolve the problem of Rachel’s extremely limited use of her right arm and shoulder.
Dr. Nath testified that Rachel has reached maximum medical improvement, it is likely her condition will deteriorate as she gets older and she will develop nerve compression, carpal tunnel syndrome and/or ulnar nerve compression, which may require further surgery.
- Plaintiff’s counsel contended that Dr. Lizardi was “marginally competent” highlighting the facts that (a) he was not board certified in obstetrics and gynecology and (b) in 1995, the State of New York suspended his license to practice medicine (the suspension was stayed during a period of probation, though, and he was allowed to continue practice). Over defense counsel’s objection, the trial judge allowed plaintiff to introduce evidence of the suspension.
- In defense counsel’s summation, the jurors were urged to ignore the defendant’s lack of board certification and his suspension in favor of adopting the testimony of the defendant’s expert who concluded that (a) a cesarean section was contraindicated and (b) Dr. Lizardi did not deviate from accepted standards of medical care.
- $2,000,000 for pain and suffering appears to be the highest amount sustained by an appellate court in New York in an Erb’s palsy case. Plaintiff was represented by The Mills Law Firm, both at trial and on the appeal.
- The total judgment was approximately $3,150,000. In addition to the $2,000,000 for pain and suffering damages, the jury awarded economic damages in the sum of approximately $1,150,000 as follows: $500,000 for reduction in lifetime earnings, $410,000 for future medical evaluations, services, therapy and equipment and $240,000 for past medical expenses.
- The economic damages claim was supported by the testimony of plaintiff’s vocational rehabilitation expert, Kenneth W. Reagles, Ph.D.
- After trial, the defense offered to settle for $2,000,000, the limits of the malpractice insurance policies available to Dr. Lizardi; however, plaintiff rejected the offer. Then, on December 20, 2012, the doctor filed a petition under Chapter 11 of the Bankruptcy Code in order to prevent judgment collection enforcement actions. This month, the the doctor consented to the dismissal of his bankruptcy case.