California Medical Malpractice Law Blog

One of the most critical aspects of a birth injury lawsuit involves the estimation of the brain injured child's future care needs. The life care plan is a tool that's assembled by a physician, nurse and economist along with your attorney that specifically identifies all of the future care needs of the injured child. The life care plan includes an opinion regarding the child's attendant care needs eg: how many hours per day and whether an RN, LVN or medical assisant is necessary; estimations of the physical therapy, speech therapy and occupational therapy needs; estimations of the numbers of physician visits throughout the child's life; adaptive equipment around the home; home modifications; transportation needs and often much more. It's common for the physician and nurse to meet with the injured child's family in their home to assess the extent of the child's needs.

A settlement involving a birth injured child must be approved by a judge. The process is known as a minor's compromise. The purpose of a minor's compromise is to assure the court that the settlement proceeds will not be mismanaged to the detriment of the child. A common method of preserving a minor's assets is to allocate a significant portion of the settlement to the purchase of an annuity (See: July 29, 2008 Blog Entry) and to direct the monthly annuity payments into a special needs trust. A special needs trust holds the proceeds for the exclusive benefit of the injured child. Trustees direct the distributions from the special needs trust to address the needs of the child. A judge may require that a professional trustee be appointed in addition to the parents or close family members. The professional trustee often is affiliated with a bank and will charge an administrative fee. The special needs trust has several benefits, the most notable of which is that under most circumstances it allows the beneficiary to remain eligible for public benefits. The special needs trust plays an important roll in obtaining a judge's approval of a minor's compromise. Your birth injury attorney will work with a special needs trust attorney to create a trust that works for your individual situation.

Annuities play a key role in funding the future care needs of children with birth injuries. An annuity refers to a stream of fixed payments over a specified period of time. Most jurisidictions require that funds paid to resolve a birth injury case be used in large part to purchase an annuity. There are many reasons for that, the most fundamental, is that the court can be assured that the settlement proceeds will not be mismanaged.

Annuities are purchased from large insurance companies. The purchaser gives the insurance company payment of a lump sum of money in exchange for a contractual promise to pay out a stream of money. Annuities are very flexible and can be structured in the best interests of the child. For instance, an annuity can pay a certain amount per month, with annual cost of living increases, for the life of the annuatant or for a guaranteed period of time. The cost of the annuity will vary depending upon the guarantees and annual increases. Typcially your attorney and annuity broker will help you determine what type of annuity is right for your child.

Plaintiff’s, who were represented by Erik Peterson with Bostwick, Peterson & Mitchell in San Francsico, contended that nurses and physicians failed to recognize non-reassuring signs during the labor and delivery process. Plaintiff’s experts were prepared to testify that had the non-reassuring signs been identified in compliance with the standard of care, that an expedited c-section would have prevented the child’s injuries. Plaintiff’s contended that the fetal heart tracing revealed persistent variable decelerations followed by severe and prolonged decelerations and bradycardia thirty seven minutes prior to delivery. The child’s APGAR scores were: 2 at 1 minute and 3 at 5 minutes. The umbilical cord artery reflected readings of ph: 6.71, CO2 131. 02 25 and base excess of -22.7, which is consistent with mixed respiratory and metabolic acidosis. The child was transferred to a tertiary hospital where she responded remarkably well to a cooling protocol for hypoxic-ischemic encephalopathy. Over the ensuing eighteen months the child’s neurologic examinations were near normal and there was scant, if any, diagnostic evidence of a cognitive injury. She was walking at ten months, communicating well at eighteen months and expected to be mainstreamed in the public school system. She was diagnosed with a mild left hemiparesis and gastrointestinal disorder; neither condition requiring attendant care. The non-economic (also known as "pain and suffering") damages in this medical malpractice case were limited by the provisions of MICRA.

This case involved neonatal blindness injuries to premature triplets from retinopathy of prematurity. One child was almost completely blind; one child was almost completely blind in one eye and had partial loss of vision in the other eye; and the third child had some functional diminution of vision, primarily in one eye. Retinopathy of prematurity (what used to be called rebrolentna fibroplasia can be treated if timely diagnosed. It is a common problem in premature infants. We contended that the hospital, neonatologist, and pediatricians failed to properly follow up and screen these children and failed to diagnose the condition in a timely manner. The defendants contended that the mother had been properly warned about the condition and failed to obtain an eye exam in a timely fashion after the triplets were discharged from the hospital. This confidential settlement is believed to be the largest of its type in the history of the state of occurrence.

An infant can sustain birth trauma during, before, or directly after birth. Unfortunately, when an infant sustains birth injuries, he or she can develop lifelong physical, developmental, and cognitive complications, including Erb’s palsy, brain damage, and cerebral palsy. Lawyers at our San Francisco law firm may be able to help you if your child has suffered birth trauma due to the negligence or wrongful actions of a medical provider.

Commonly, birth trauma occurs when the flow of blood and oxygen is restricted during the birthing process. When it becomes clear that the mother or infant is not receiving adequate oxygen, it is necessary that the attending physician or medical personnel act quickly to increase oxygen. When the attending physician is negligent and fails to correct the blood and oxygen flow, permanent injuries may result. There are many medical techniques, including cesarean that can prevent long-term damage to the infant. If the physician or attending medical staff fails to act quickly and expertly, the responsible parties may be guilty of medical negligence. In these cases, they can be held liable for the financial and emotional losses suffered by the infant and his or her family. Often, these losses are devastating to the child and family and that is why the attorneys at Bostwick, Peterson & Mitchell are committed to protecting the rights of birth injury victims. Click here for examples of successes in this area.

If your child has been the victim of birth injury or trauma, we may be able to help. Please contact the birth injury attorneys at Bostwick, Peterson & Mitchell today

$10.0 million - Record settlement for an obstetrical case.

Our birth injury specialists recently settled a case for $10,000,000 for birth injuries to a child now 3 years of age. The 17 year old mother had a normal pre-natal course, was admitted to the hospital for a trial of labor with normal fetal heart tones on the monitor strip. Rupture of membranes later revealed clear fluid and thereafter, a pattern of variable and late decelerations developed with retained variability. In the early morning hours, the late and variable decelerations continued with diminished variability. The baseline became tachycardic with diminished variability with persistent significant mixed late and variable decelerations with slow recovery. This continued for approximately four hours to the birth. The mother developed a fever or 38.5 after the epidural was given. The baby demonstrated a similar after birth with a pH of 6.98 with a base deficit of 15.4. The defendants contend that there was not sufficient loss of variability to justify intervention. They contended that the cord gas did not evidence significant metabolic acidosis and the child course after birth was more consistent with intrauterine infection, bacterial infection than interpartem hypoxia. Plaintiffs contended that there was clear evidence of non-reassuring fetal heart tones suggestive of metabolic acidosis which required earlier intervention. Plaintiffs contended that the baby’s presentation after birth was classic for interpartum asphyxia and met most of ACOG’s guidelines for hypoxic ischemic encephalopathy from interpartum events. The child is a spastic quadriplegic, tube fed with global delays, including severe cognitive deficits. Defense contented life-expectancy was limited. Plaintiffs contended life expectancy was near normal. This is believed to be a record settlement for an obstetrical case. This confidential settlement is considered to be a record settlement or verdict in the state where it was obtained.