Baby in NICU

TheCPLawyer® – Medical Malpractice and Birth Injury Litigation

HOW DID THIS HAPPEN TO MY CHILD? Understanding Medical Malpractice

When given a diagnosis of cerebral palsy, parents typically ask “How did this happen to my child?

The particular cause may not be determined in all instances. From a legal perspective, it is beneficial for the family to seek a Medical Legal Review of the circumstances surrounding the cause of their child’s condition. If the cause of a child’s cerebral palsy can be attributed to birth injury or medical malpractice, the parents and child may be entitled to pursue compensation for the injury. These important, potentially life-changing benefits are referred to here as “Lifetime Benefits.”

Lifetime Benefits can be substantial, dependent upon many factors. Those who qualify are able to use Lifetime Benefits to fund, among other things, the services their child needs and deserves.

Limitations, called statute of limitations, exist to specify and limit the so-called, “window of opportunity” in which a family can timely pursue litigation; each state is different. For more details, call Ken Stern at , or complete an online contact form (see sidebar) for assistance.

Lifetime Benefits:
Does Your Child Qualify?

If your child’s impairment is due to birth injury or medical malpractice, the law permits families, through the litigation process, to pursue Lifetime Benefits in the form of monetary awards. Monetary awards – compensation for injury incurred – can then be used to fund expenses, such as the child’s medical treatment, therapies, adaptive equipment, medications, communication devices and home or automobile modifications.

Over the course of the child’s life, the cost of cerebral palsy is significant. Lifetime Benefits are awarded in recognition of the child’s cerebral palsy and the resulting financial burden on the family – factors that would not exist without the medical malpractice and/or the child’s brain injury. For those cases that qualify, the benefits can greatly assist the family in obtaining treatments and services their child will require over his/her lifetime.

To learn more about a Medical Legal Review or the process of pursuing Lifetime Benefits, call or fill out an online contact form requesting a Medical Legal Review today. Ken Stern provides the opportunity to pursue the benefits a child needs and his or her family deserves.

Elements Required
to Prove Medical Malpractice

The primary purpose of medical malpractice litigation is to demonstrate that a medical professional provided substandard care to a person he or she had an obligation to appropriately treat. The specific result of this negligence is an injury, entitling the plaintiff to damages in the form of financial compensation. Proving medical malpractice usually involves expert medical testimony.

The seven elements generally required to successfully prove birth injury medical malpractice include:

  • Statute of limitations – the “window of opportunity” a plaintiff has in which the law will allow them to file a complaint
  • Plaintiff(s) – the person or persons filing the complaint
  • Defendant(s) – the person, persons, or entity being sued
  • Duty – the defendant’s obligation to provide care to the plaintiff
  • Breach of duty (also called “negligence and violation of the standards of care”) – the defendant’s inability to meet standards of care for the patient, whether intentional or accidental
  • Causation – the defendant, through breach of duty, caused an injury
  • Damages – the amount of financial compensation the plaintiff should receive based upon the scope, severity and results of the injury

These elements are detailed below:

1. Statute of Limitations

The statute of limitations prevents a person from filing a law suit after a specific amount of time has passed. Regarding birth injury litigation, each state establishes its own time period, which may range from one year after birth through a person’s twenty-first year of age, and possibly longer in certain circumstances.

Before any litigation can progress, it must be determined whether the claimant still has the legal right to file a complaint. The plaintiff’s lawyer will determine this as part of the initial Medical Legal Review.

However, the statute of limitations is not always clear. While the timeframe itself is typically very specific – a stated number of years – a question sometimes arises about when the timeframe actually begins. Depending on state law and court interpretation, the time frame may begin when the injury actually occurred, or based on when the injury was discovered. In some states, a “discovery rule” provides that the statute of limitations period begins at the time the injury is first discovered, or should have reasonably been discovered. In the case of cerebral palsy, this can be several years after a child is born. To learn about the statute of limitations, call or fill out an online contact form requesting a Medical Legal Review today.

2. Plaintiff(s)

The plaintiff is the person, persons, or entity suing for compensation. The plaintiff is usually the person harmed, injured or his/her estate, if deceased. With cerebral palsy, parents often file the complaint on behalf of their minor child. Under specific circumstances, some states permit parents, spouses, and grandparents to file a complaint on their own behalf because of pain and suffering and loss of income, as well as for services provided on behalf of the child and loss of companionship or interference in the relationship.

3. Defendant(s)

The defendant is the person, persons or entity being sued by the plaintiff. Although anyone can attempt to sue another, successful litigation requires establishing that the defendant deserves to be sued.

To establish defendant fault, proof must exist of an established doctor-patient relationship between the defendant and the plaintiff at the time of occurrence. A plaintiff need not have an established relationship prior to the injuring event. This can be especially important since many hospital procedures – including infant deliveries – may involve emergency on-call staff who have no prior relationship with the plaintiff, but are authorized to care for the patient through the registration process. During this process, the patient agrees to treatment from those working at the facility at the time.

In extreme situations when a patient is unconscious and in need of emergency care, it is sometimes implied that medical practitioners at the facility are to provide the care required to save the patient’s life, even if a patient was not able to formally consent.

A case can have multiple defendants. Typically, all individuals deemed responsible for the negligent care – including the medical facility that employs them, their insurance companies, and the facility providing the care – may be listed as defendant(s). In some states, all parties proven guilty are held equally responsible for 100% of damages, or so-called “joint and several liability.” Other states divide the total amount of damages between defendants based on the entity or individual’s degree of responsibility.

Participating parties in birth injury, medical malpractice lawsuits can include:

  • Obstetric gynecologist
  • Pediatrician
  • Neurologist
  • Anesthesiologists
  • Pharmacists
  • Nurses
  • Hospital staff
  • Hospitals
  • Nursing homes
  • Health care facilities
  • Insurance companies

4. Duty

In birth injury, medical malpratice lawsuits, the concept of “Duty” generally requires that care be provided within generally accepted industry standards, consistent with the standard of care or practice in the medical profession. Medical practitioners generally have a duty to:

  • obtain informed consent
  • be clinically competent
  • be duly licensed
  • not abandon or neglect the patient
  • protect the patient from harm to the best of their abilities within reasonable standards
  • assist if harm occurs to limit injury

The health care facility generally has the responsibility to:

  • establish and enforce policies and procedures
  • verify credentials
  • train staff properly
  • monitor performance
  • provide a safe environment
  • provide a clean environment

5. Breach of Duty

Demonstrating a breach in the generally accepted standard of care is usually required to recover damages in medical malpractice litigation. It is a medical professional’s responsibility to prevent harm from occurring to the best of his or her abilities under the circumstances. Breach of duty is negligence, whether accidental or intentional. To win the lawsuit, breach of duty must be proven in court.

Proving breach of duty generally involves establishing the standard of care a “reasonable” person with similar qualifications would provide to a patient under similar circumstances. Breach of duty is usually an action the defendant takes, but could also be an omission when there is a duty to act. Usually, this is proven through expert medical testimony. In some states, the standard of care can vary with the location of that care, or the type of facility providing the care. For example, a doctor and medical staff in a low-funded, rural institution might not be expected to have the same resources at their disposal as a well-funded, cutting-edge urban medical facility. Often lawyers look into the policies and procedures of the facility, the equipment and technology available and the qualifications and experience of the professional. Other elements, such as the options available to the professional at that particular facility, or similar facilities, at the time of occurrence, are also considered.

Factors used to determine whether reasonable care was exercised generally include:

  • Was the harm foreseeable?
  • Was the damage foreseeable?
  • Were precautions taken to eliminate or reduce risk?

Factors to determine responsibility include:

  • Intent - Is there evidence of criminal, intentional, negligent or reckless acts?
  • Competency – Is the defendant properly trained, certified, managed and experienced?
  • Operational compliance – Were policies and procedures in effect regarding these actions? If so, were they properly communicated, monitored and followed at the time of occurrence? Did the hospital provide appropriate equipment, facilities, and staff available to conduct the procedure(s)?
  • Inherent danger – Were actions taken that were outside the reasonable margin of error and beyond an acceptable level of risk?
  • Extraordinary circumstances – Were there any constraints that reasonably limited the practitioners, or the capabilities of the facility?
  • Timeliness – Were actions taken expediently? Were there unacceptable and avoidable delays?
  • Options – Were other options more likely to produce a positive outcome available but not considered, purposefully not chosen, or rejected?
  • Industry guidelines and professional standards – Were the actions taken, or omitted, within the acceptable industry standards and professional licensure guidelines? Was there a departure from accepted practice standards?

In response to a claim that the doctor or hospital violated applicable standards of care, defendants may attempt to prove they were incapacitated, unavailable, had no knowledge of the occurrence, were unable to comply, had no other choice, were not individually responsible, made the best choice available or were otherwise constrained, in some way, to perform in a manner consistent with, or at variance with, the required standard of care.

Other factors can affect the perceived standard of care. When a practitioner makes a judgment call – a choice between different courses of treatment – and selects an option that fails, the actions often will sometimes fail to qualify as breach of duty if the practitioner can prove he or she made the decision that would bring the least harm to the patient. At other times, a practitioner simply chooses a procedure –such as an experimental or rarely used technique – that most doctors would not employ. In this scenario, if a respectable minority may agree the procedure was justified under that particular situation, and then it may not be considered negligence or malpractice.

In most cases, however, to establish a violation of the standard of care, the plaintiff, through his or her legal counsel, has the obligation to prove the violation occurred. This is referred to as “burden of proof.” To satisfy the burden, a level or degree of proof – less than the “proof beyond a reasonable doubt” standard required in criminal cases – must be surpassed. In civil cases, including those that involve medical malpractice or professional negligence, the required level of proof is less, and often referred to as “proof by a preponderance of the evidence,” which may mean the standard of care was, more likely than not, violated. In other words, more than 50% likelihood exists that involved parties violated the standard of care.

There are many scenarios proving negligence in a case resulting in birth injury or cerebral palsy, and each case presents with unique circumstances. Both plaintiffs and defendants will present their best arguments for justice as they may perceive it. Meeting the required burden of proof sometimes involves proof that:

  • The incident occurred in an explainable fashion
  • The incident would not have occurred ordinarily without negligence
  • The defendant had control over the circumstances producing the injury

Evidence and proof that the doctor or hospital violated the standard of practice, resulting in injury to the child or mother, can be categorized in a number of ways. These include:

These are detailed below.

Disclosure Breach

Practitioners must present patients with available, pertinent and relevant information in order for the patient to be properly informed before consenting to treatment. Disclosure breach occurs if the patient agrees to a decision without being adequately information and risks. In this scenario, it’s mandatory to demonstrate that a sustained injury would not have occurred had the doctor disclosed the missing information to the patient, who, in turn, would have denied consent to the treatment.

Disclosure breach may include:

  • Informed consent – failure to obtain informed consent (unless extreme emergency)
  • Treatment disclosure – failure to disclose the required treatment
  • Risk disclosure – failure to disclose treatment risk, failure to disclose alternative treatment risks, or failure to disclose risk of refusing treatment
  • Alternative treatment disclosure – failure to disclose alternative treatment
  • Confidentiality – failure to maintain patient privacy

Diagnosis Error

Failing to properly diagnose the condition in an appropriate timeframe under some circumstances can be fatal, or cause severe injury to the patient. Diagnosis errors account for some of the medical malpractice industries’ largest awards, or judgments. To properly diagnose, the practitioner must order appropriate tests in the timeframe deemed reasonable for symptoms or circumstances experienced by the patient. Misdiagnosis can lead to injury or impairment in cases where the child is inappropriately treated for a condition they do not have. Harm must be proven to have occurred because of the diagnosis error. Failing to diagnose, delaying a diagnosis, or misdiagnosing can be negligent when the child or mother is harmed thereby.

Diagnosis errors include:

  • Failing to diagnose
    • Failure to conduct warranted tests
    • Failure to diagnose pregnancy
    • Failure to diagnose complicated pregnancies (such as uterine, ectopic or multiple pregnancy)
  • Harmful delay in diagnosis
    • Avoidable delay, or denial, of tests
    • Avoidable delay, or denial, of referral to a medical specialist
  • Misdiagnosis
    • Misinterpretation of test results or monitor reads
    • Failure to properly act on test results or monitor reads
    • Failure to properly calculate gestational age

Improper Treatment During or After Birth

Mistakes that are made during a medical procedure will often fall into the improper treatment category, especially if the errors occurred during commonly performed procedures. Errors must cause harm, and it must be shown that the harm was a result of breach of duty. Mistakes during very difficult circumstances may not qualify, as the procedure may be acceptable under certain extenuating circumstances.

Improper treatment at or following birth may include:

  • Failure to assess or failure to properly respond
    • Failure to assess or respond to complications or health conditions during pregnancy or the birth process
    • Failure to properly perform a procedure (surgery, medical, or treatment)
    • Failure to notice or respond to the fetal condition or fetal distress
    • Failure to perform a timely cesarean section because of fetal distress
    • Failure to perform a timely cesarean section because of other conditions, including infection or extended labor
    • Performing an unwarranted cesarean section
  • Delayed treatment
    • Avoidable delay in treatment or response
  • Denial of treatment
    • Failure to supply adequate oxygen to asphyxiated baby at birth
    • Failure to monitor oxygen and respiratory treatment following birth
    • Failure to properly treat a child suffering trauma during the labor process

Medication, Prescription and Pharmacy Errors

Pharmacy errors relate to mistakes made by pharmacy staff, including pharmacists. They can include dispensing medicine in incorrect doses, mislabeling prescriptions, and providing the wrong medication altogether. Pharmacists may also err when accounting for potential drug interactions and allergies.

Prescription errors fall upon the prescribing physician or anesthesiologist. Doctors must take reasonable measures and precautions to determine if a particular drug is capable of having adverse effects on a patient. Reasonable measures would include testing for patient reaction and heeding patient information on hypersensitivity or allergy. Just as important, doctors are obligated to inform patients of potential medication side effects or risks. As in all cases, the breach of duty must result in definitive harm to the patient in order for litigation to be warranted.
Medication, prescription and pharmacy errors include:

Medication, prescription and pharmacy errors include:

  • Pharmacy errors include:
    • Dispensing medicine in the wrong dose
    • Mislabeling prescriptions
    • Providing the wrong medication
    • Failure to account for potential drug interactions and allergies
  • Medication and prescription errors include:
    • Prescribing the wrong drug
    • Prescribing the wrong dosage
    • Prescribing a medication that the patient is allergic to
    • Prescribing incompatible medications, thereby causing adverse drug reactions
  • Medication administration errors include:
    • Inappropriate or incorrect use of prescribed medications
    • Administering anesthesia incorrectly

Birth Injury

Birth injury negligence or malpractice occurs when an infant suffers harm, impairment or injury around the time of delivery due to physician or hospital error. The error can be intentional or accidental.

Modern delivery technique does much to improve the safety of both baby and mother, but some of the same techniques, if administered improperly, carelessly or without caution, can have devastating effects. A newborn’s entire body, including the brain and central nervous system, are still developing. Infants are fragile and susceptible to a variety of factors, such as infections, trauma, distress, oxygen deprivation, and other birthing mistakes and complications. Any injury suffered early in brain formation, especially at birth, can permanently alter the child’s development.

Many birth injuries cause damage and result in long-lasting or permanent impairment, disability, or even death. Asphyxia – when the newborn’s brain is deprived of oxygen – is one such condition and occurs frequently. Asphyxia can cause serious complications, including cerebral palsy. The brain can sustain similar injury as a result of infection, physical damage or trauma to the infant during delivery.

Birth injury may include:

  • Failure to recognize fetal distress or birth asphyxia as described on the fetal monitor
  • Choosing inappropriate delivery method based upon the circumstances
  • Failure to timely perform an emergency cesarean section
  • Inappropriate delay in performing an emergency cesarean section, typically a delay exceeding 30 minutes
  • Failing to identify or properly treat umbilical cord complications
  • Failure to notice or respond to the fetal condition
  • Failure to notice and respond to maternal hypertension or toxemia
  • Inappropriate, excessive or incorrect use of vacuum extraction or forceps, resulting in physical brain injury to the baby, or to the face, neck and shoulder
  • Failure to assess or respond to complications or disorders during the birthing process
  • Failure to properly identify and treat high risk pregnancy or delivery
  • Failure to properly resuscitate a distressed baby at birth
  • Failure to treat seizures
  • Failure to treat jaundice
  • Failure to treat meningitis

Wrongful Birth or Wrongful Life

In certain states, wrongful birth involves circumstances where parents can pursue litigation against a practitioner due to financial and emotional distress of giving birth to a child with disability, for instance, after a sterilization procedure was not properly performed. This is also the case if a pregnancy was not properly terminated when a recognizable condition, such as Down’s syndrome was discovered during pregnancy. In other situations, the couple was not properly informed of their risk of having a child with a disability given their particular circumstances, or genetic factors increasing the likelihood their child would be impacted by parental genetics. In these instances, it must be proven that the parents would have terminated the pregnancy in timely fashion if informed of the circumstances. Timing for pregnancy termination becomes important in these cases since the law may not permit termination after a certain date in the pregnancy. As a result, it’s imperative that parents be advised of these issues as soon as possible to allow for the timely exercise of their right to terminate the pregnancy, if so desired and if legally permissible.

When permitted, wrongful life lawsuits are initiated by, or on behalf of, the person who has the disability against the person responsible for their life. This could also happen when a health care provider intentionally uses bad embryos for an IVF procedure, when a doctor performs sterilization incorrectly or when the child’s parent chooses to continue the pregnancy after they were fully advised of the risk of disability. Wrongful life cases are rarely recognized or won in court. State by state variations in the law require working with experienced legal counsel.

Examples include:

  • Failure to properly perform sterilization procedure resulting in harm to born child
  • Failure to properly perform pregnancy termination resulting in harm to the born child
  • Intentionally using bad embryos for an IVF procedure
  • A parent choosing to have a child after being informed of the risk of disability

System Failures/Administrative Errors

Complaints filed against medical facilities or hospitals may fall under the category of system failures, or administrative errors. In these situations, an employee of the facility committed a negligent act and the complaint maintains that the facility is liable for the actions of its employee. In some situations, the facility did not have policies or procedures in place to address or prevent the problem and is therefore solely responsible for the failure. In other situations, the facility management did not hire, train, or manage an employee properly.

System failures and administrative errors include:

  • Credentialing – failure to properly investigate education, training, licensing, experience, competency or performance of a staff member
  • Staffing levels – insufficient staffing to maintain quality patient care
  • Failure to follow established operational policies and procedures
  • Failure to establish and enforce policies and procedures
  • Failure to properly admit and discharge patients
  • Failure of staff to follow the orders of a patient’s private attending physician
  • Failure to protect patients from harm
  • Failure to adequately perform clinical tests
  • Record keeping – failure to keep accurate medical records
  • Refusal to treat seriously injured or ill people on an emergency basis
  • Refusal to treat or admit an individual based on their race, color, religion, or national origin
  • Refusal to treat or admit an individual based on their inability to pay for treatment
  • Unsafe facility grounds
  • Unsanitary facility grounds

Equipment Failures

Failure to maintain equipment, service agreements, and maintenance of equipment used on, or for the benefit of patients, can lead to unnecessary harm or injury. Typically, health care facilities obtain Joint Commission International (JCI, formerly known as JACHO – Joint Commission on Accreditation of Health Care Organizations) certification, whereby they create, maintain and certify equipment safety, ground safety, and security within industry standards. This helps to insure against the spread of infections, equipment malfunction and injury.

Examples of equipment failures include:

  • Failure to properly maintain equipment
  • Failure to certify equipment safety
  • Failure to establish, maintain or follow safety standards
  • Failure to establish, maintain or follow security standards

6. Prove Causation

The practice of medicine allows for an acceptable margin of error and a certain level of risk. For a medical malpractice complaint to be successfully litigated in most states, it must document, and the lawyer must prove in the court of law, that negligence resulted in harm when these margins of error and levels of risk were exceeded. This is commonly referred to as causation.

To prove causation in a medical malpractice complaint, the plaintiff must generally prove the breach of the defendant’s duty (negligence or malpractice) was the sole or a contributing cause of the plaintiff’s injury. The process of identifying causation will determine the responsible person or party and demonstrate how an injury occurred. Proximate cause must be proven by identifying the specific event or omission that led to the injury.

The full extent of that injury is documented. The level of impairment is also established. The impact on the plaintiff’s quality of life will also be fully presented. The defendant’s negligence, whether intentional or unintentional, must be proven in court, in most states, as the sole or contributing cause of harm caused to the plaintiff.

Elements generally employed to prove or disprove causation, depending upon the state of the occurrence, include:

  • Proximate cause – identifies that the defendant’s breach of duty had foreseeable consequences and, without independent intervention, resulted in, or contributed to direct harm to the plaintiff.
  • “But-for” rule – a benchmark to find the very factor that, without which (“but-for”), the injury could not have occurred.
  • “Substantial factor” formula – establishes that the defendant’s conduct was a substantial factor in causing the plaintiff’s injury. The defendant will be held liable for his or her part in causing the injury, unless the defendant’s legal team can provide sufficient defense to successfully refute the claims.
  • Intervening cause – an element that comes between the original negligence of the defendant and the injury to the plaintiff and can reduce the amount of responsibility a defendant has in actually causing the harm to the defendant. The intervening factor can relieve the defendant from liability if it is proven that the defendant could not have foreseen the intervening cause AND the defendant could not have foreseen the damage his or her actions may have caused. There are two types of intervening causes:
    • Dependent intervening cause – when the dependant’s own conduct is responsible for starting the chain of events that lead to injury. This type of intervening cause, unless deemed extraordinary, will not usually relieve the defendant from liability, since his or her their negligence contributed to the plaintiff’s loss.
    • Independent intervening cause – an event, unforeseen by the defendant and through no fault of the defendant, which led to the harm. It is usually some act of nature that also intervened, like earthquake, tornado, storm, flood, etc.
  • Contributory negligence – is behavior by the plaintiff proving he or she failed to take proper precautions to prevent the injury. This could either prohibit the plaintiff from collecting damages or reduce the value of damages to be awarded. For example, an obstetrician may have dangerously delayed performing a warranted cesarean section during a complicated birth, but the mother who had illegal drugs in her system at the time of labor, or during the pregnancy, may have failed to take proper precautions to prevent injury to her child. Note, however, that not every drug taken during the pregnancy can impact brain formation, and, therefore, this must be carefully considered by an attorney.
  • Comparative negligence – determines negligence and awards damages based on the proportion of responsibility of every party directly involved in causing harm to the plaintiff. Some jurisdictions allow comparative negligence determinations, while others do not.

7. Determine Damages

Damage refers to the monetary value a plaintiff is awarded as a result of successful medical malpractice litigation. The value of damages is determined by establishing the level of harm (injury, impairment, disability or morbidity) to the plaintiff. Available damages vary in each state.

Generally, two types of medical malpractice related damages can be awarded: Compensatory damages and Punitive Damages

Compensatory damages

Compensatory damages, also known as economic or non-economic damages, are meant to return a person to a certain standard of living by covering expenses – costs associated with the injury, costs for required services the person would not otherwise need, and loss of potential earnings – as well as awarding damages for loss of function, pain and suffering and diminished enjoyment of life This type of compensation is for monetary or non-monetary losses incurred, or anticipated to occur, as a result of the defendant’s negligence.

Economic loss may include:

  • Loss of earnings
  • Loss of earning capacity
  • Medical care and expenses

Non-economic losses may include:

  • Mental distress and suffering
  • Loss of the ability to enjoy life’s pleasures
  • Permanent impairment
  • Loss of function
  • Disfigurement
  • Pre-existing condition
  • Damages for death
  • Loss of consortium

Punitive damages

When available, punitive damages, also referred to as non-economic damages, are meant to punish a defendant in hopes of deterring similar future actions by the plaintiff or other parties. Not all compensatory or punitive damages can be awarded in all cases. The types of recoverable damages are regulated by the laws of the jurisdiction where the lawsuit is filed, and are dependent on the outcome of litigation findings and determinations.

According to Paul Greve, JD RPLU, as stated in his article “Labor Pains: Liability Trends in Obstetrics” published in August 2009 in the Medical Liability Monitor, the following medical malpractice statistics are revealed:

Of the 10 most prevalent obstetric and gynecologic surgery patient conditions studied between January 1, 1985 and December 31, 2007:

  • The highest number of claims filed are pregnancy related.
  • The highest average case awards are attributable to brain damaged infants.

Of the 230,624 total claims (all services) closed during January 1, 1985 to December 31, 2007:

  • 31,486, or 13.6%, were obstetric and gynecology surgery claims
  • 21,848, or 9.5%, were orthopedic surgery claims
  • 6,794, or 2.9%, were pediatric claims
  • 3,658, or 1.6%, were nonsurgical neurology claims
  • 2,723, or 1.2%, were gynecology claims

Of the 30,246 total obstetric and gynecology surgery claims, the total number of claims by most prevalent medical misadventures, for the period January 1, 1985 to December 31, 2007, were:

  • 10,803, or 33.3%, were due to improper performance
  • 6,668, or 20.6%, were due to no medical misadventure
  • 4,252, or 13.1%, were from diagnosis errors
  • 2,775, or 8.6%, were from failure to supervise or monitor the case
  • 2,103, or 6.5%, were from delay in performance
  • 1,747, or 5.4%, were from not performing
  • 1,298, or 4.0%, were from failure to recognize a complication of treatment
  • 1,001, or 3.1%, were contraindicated, or performed when not indicated
  • 839, or 2.6%, were surgical foreign body left in patient after procedure
  • 650, or 2.0%, were failure to instruct or communicate with patient

Verdicts are the official outcome, or decision rendered at the end of the litigation process. Not all cases end in a verdict, though. Most are settled out-of-court prior to the conclusion of trial. These are referred to as settlements. The size of these awards is a reflection of the extraordinary economic costs associated with caring for a child injured at or around the time of delivery, and the non-economic impact these injuries can have on the child and family. Below are eight sample cases awarded between April 2007 and July 2008, which resulted in large verdicts or settlement:

  • $35 million verdict - Nursing delay in calling the OB, Florida, June 2008
  • $22.6 million verdict - Improper management of labor, Ohio, May 2008
  • $21.5 million verdict - Improper monitoring by the OB and nursing staff, Illinois, January 2008
  • $19.6 million verdict - Improper use of forceps, New York, July 2008
  • $18.2 million settlement - Improper monitoring, delay in C-section, Wisconsin, July 2008
  • $18.0 million settlement - Improper monitoring by nursing staff and the OB, Illinois, April 2007
  • $13.5 million verdict - Improper monitoring; delay in C-section, September 2007
  • $10 million settlement - Improper monitoring by nursing staff, Ohio, May 2008

Note: The results obtained in these cases are unique to the facts of that particular case. Past successes of course cannot guaranty similar results in your case. Relying upon facts which may, or may not be similar to your case, these cases represent sample verdicts or settlements obtained by lawyers and law firms other than Ken Stern, his law firm, Stern Law Group, PLLC, and/or their affiliated law firms.