Legally Speaking: Pre-trial agreements alter monetary awards


Two cases illustrate how jury verdicts and awards to plaintiffs may differ drastically in medical malpractice trials.

Claim that mismanaged labor led to brain damage

In 2008, a New York woman was admitted to the hospital in labor at term. On examination by an obstetrician, she was found to be 3 cm dilated with good uterine contractions; 15 minutes later she was 5 cm dilated. About 40 minutes later oxytocin was administered. Over the next 40 minutes tachysystole developed and the oxytocin was discontinued. Deep prolonged decelerations in the fetal heart rate (FHR) were noted and after another 40 minutes terbutaline was given with immediate normalization of the FHR. Intermittent intrauterine resuscitation was performed over the next 3 hours until delivery occurred. The infant’s Apgar scores were 8 and 9.

The infant had a seizure 14 hours later and an x-ray taken 6 days later showed brain damage. She was subsequently diagnosed with cerebral palsy and has spastic diplegia, near total blindness, inability to walk, and an impaired gastrointestinal system requiring her to subsist only on a specialized nutritional supplement.

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The woman sued her primary obstetrician (who was not  at the delivery), the treating obstetrician, his practice, and the hospital, claiming that the infant’s injury was a result of a preventable event that occurred during the hours preceding delivery. The plaintiff’s attorney dismissed the claim against the primary obstetrician and negotiated a settlement with the hospital in the amount of $3 million. The case went to trial against the treating obstetrician and his practice, contending that oxytocin should not have been used and that the obstetrician did not properly monitor the effects of the drug. The woman claimed the tachysystole should have been treated immediately with terbutaline.

The physician argued that the infant’s injury occurred before or after labor, citing a troubling blood-flow abnormality that was revealed during the week preceding labor and claiming the pregnancy was complicated by kidney infections requiring hospitalizations. He claimed that an intrapartum hypoxic event was not the cause of any injury, noting that the FHR promptly returned to normal after the tachysystole resolved.

The verdict

The jury found in favor of the infant and awarded damages of over $56 million.

Inadequate treatment of group B strep infection alleged in preterm delivery

An Illinois woman delivered a baby at 31 weeks’ gestation in 2008. She had tested positive for group B strep 5 months prior to delivery. The infant was subsequently diagnosed with periventricular leukomalacia (PVL) and suffers from cortical blindness, partial hearing loss, spastic quadriplegia, and speech/language impairments.

The patient sued all those involved with her pregnancy and delivery. She alleged a failure to timely treat either herself or the child with antibiotics, resulting in the infant’s condition. She claimed she had chorioamnionitis and that antibiotics should have been given at least 4 hours before delivery, whereas she received them only 1 hour before even though she was at the hospital for more than 4 hours. She also claimed that no antibiotics were administered to the infant at the delivering hospital and that he had only 48 hours of antibiotics after he was transferred to a second hospital. The plaintiff’s medical expert claimed the failure to treat the infections was the proximate cause of the infant’s condition. The defense contended that the obstetrician did administer antibiotics in a timely fashion, and that prematurity was the cause of the PVL.

The verdict

The jury found in favor of the defense.


The wide variation and unpredictability of jury verdicts and award amounts are the reasons many medical malpractice cases settle before a jury verdict is rendered. These are also the reasons plaintiffs and defendants may enter into a high/low agreement before trial. In the first case above, the large New York jury award included $2.3 million for future lost earnings, $1.5 million for past pain and suffering, $10 million for future pain and suffering, $1.17 million for future cost of nutrition products, $31.3 million for future cost of nursing care, $700,000 for future cost of special education, $4.8 million for future cost of therapy, $450,000 for future cost of a wheelchair-accessible vehicle, and several other future costs and past medical expenses.

In the second case here, the patient and physician entered into a high/low agreement during the trial. This ensures that the plaintiff gets the low amount if there is a defense verdict, and caps the amount if the verdict is for the plaintiff. Here a $1.5 million/$9 million agreement was reached and because it was a defense verdict, the plaintiff received the $1.5 million in accordance with the deal. 

NEXT: Delay in performing cesarean blamed for CP


Delay in performing cesarean blamed for CP

A California woman presented to the hospital in 2012 in labor at term. The FHR tracing was initially a category I but became a category II about 5 hours later, with some decelerations but moderate variability. A few hours later the physician came in for delivery, anticipating a vaginal delivery within an hour. He found the patient was fully dilated and started her pushing. An hour later he decided to perform a cesarean and called for an assistant and a surgical tech. Fifteen minutes later the FHR was absent, the patient was given a general anesthesia, and the infant delivered 13 minutes later. The umbilical cord was around the infant’s neck and a full resuscitation with intubation and epinephrine was performed. The infant was transferred to another hospital for brain cooling. She spent 5 weeks in the hospital and was subsequently diagnosed with cerebral palsy, blindness, emotional distress, seizure disorder, and speech/language impairment.

In the lawsuit that followed the delivery, the patient claimed that the standard of care required the physician to deliver the baby 90 minutes earlier and it was negligent for him to wait so long before ordering a cesarean. In addition she claimed that care involved with the resuscitation efforts was negligent. The child was 3 1/2 years old at the time of trial. She continues to require frequent suctioning and suffers from occasional seizures. Because of her injury she will never be able to walk, talk, or care for herself. She is fed through a feeding tube and will require 24-hour licensed occupational nursing care for the rest of her life, which is projected to be only 20 more years.

More: Enhanced FHR monitoring

The physician contended that the standard of care did not require a cesarean before he ordered it because the FHR variability indicated that the fetus was not acidotic during that time. He also argued that the delivery occurred within 30 minutes of the decision to operate and that the infant’s injury was due to the cord accident and not any delay in delivery. The defense concluded that the resuscitation was performed in a timely manner, ultimately saving the infant’s life.

The verdict

The judge awarded the infant $9.6 million.

CP blamed on delay in performing cesarean delivery

A Virginia woman presented to the hospital for labor induction at 39 weeks’ gestation. She was admitted in the evening and placed on a FHR monitor and was monitored throughout the next day into the evening, at which point she had an elevated temperature and FHR tachycardia. The obstetrician was notified and prescribed antibiotics, and about an hour later, the woman’s temperature decreased. After another hour the patient was fully dilated and started pushing. About 20 minutes later, the obstetrician was notified that the FHR showed variable decelerations; on arrival 30 minutes later, he ordered a cesarean. The infant was delivered 24 minutes later. At 10 hours of life, he began to have seizures and was transferred to another hospital, where he remained in the neonatal intensive care unit for 15 days. He was subsequently diagnosed with cerebral palsy.

The patient sued the obstetrician, claiming that the infant suffered an acute hypoxic ischemic injury, and that an earlier cesarean would have avoided the brain injury.

The obstetrician argued there was no breach in the standard of care and that the infant did not meet all the criteria for an acute hypoxic ischemic injury. He claimed that, based on the computed tomography scan, the infant’s brain injury most likely occurred at least 7 hours before delivery.

The verdict

The jury returned a defense verdict.

NEXT: Complications during prolapse repair surgery


Complications during prolapse repair surgery

A 67-year-old New Jersey woman suffering from urinary incontinence underwent an operation to address the prolapse and a hysterectomy. She suffered complications due to a tear in the transverse colon, and developed infections that led to further surgeries, a colostomy, malabsorption, and frequent intravenous treatments.

The woman sued the gynecologist and claimed that he deviated from the standard of care by failing to convert from a laparoscopic procedure to an open one when complications arose. The gynecologist argued that other doctors involved with the woman’s care were at fault for the patient’s complications and injury.

The verdict

The parties entered into a settlement in the amount of $6.25 million.

Failure to recognize postpartum hemorrhage leads to death

In 2014, a California woman pregnant with her second child went to a hospital with symptoms of labor. She underwent a repeat cesarean performed by her obstetrician. At the conclusion of the operation the anesthesiologist removed the surgical drapes and discovered massive blood loss. The patient became hypotensive and tachycardic and was hypovolemic. He ordered medications and blood products, including 4 units of packed RBCs. The decision was made to transfer the woman to the intensive care unit (ICU) and a critical care specialist was notified of the patient’s condition, including the possibility that she was still actively bleeding. She was taken to the ICU 90 minutes after the conclusion of the cesarean. Seventeen minutes later the obstetrician left the hospital, noting that the patient’s vital signs were normal. Her vital signs actually continued to deteriorate and about 3 hours, later a code blue was called and she was placed on a respirator. She was eventually taken back to the operating room but never recovered and her family ultimately removed her from life support. She died 5 days after the cesarean delivery.

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The patient’s husband and 2 minor sons sued the obstetrician, the anesthesiologist, the critical care specialist, a neurologist, a hematologist, and the hospital. The hospital settled for a confidential amount and the anesthesiologist, neurologist, and hematologist were dismissed from the case. The matter went forward against the obstetrician and critical care specialist. The suit claimed the obstetrician was absent from the operating room immediately post-op and that he did not follow up on the patient’s status after leaving the hospital. The notes made by the ICU nurses after they received the patient indicated she was still actively bleeding, and despite repeated calls to the critical care specialist, the patient was not seen and continued to bleed.

The obstetrician countered that he remained in the operating room after the surgery and left the hospital only after he placed an intrauterine balloon and administered medications to the patient. He also disputed the accuracy of the nurse’s notes, which alleged that “at all times” the patient’s vital signs indicated active bleeding. The critical care specialist argued that he had recommended to the anesthesiologist that he keep the patient in the operating room instead of transferring her to the ICU and he also denied that he received any contact or calls from the ICU staff after the initial admission to the ICU.

The verdict

The jury found the critical care specialist was not negligent but that the obstetrician was and determined the patient’s present value of damages totaled $9.28 million.

NEXT: Failed tubal ligation results in unintended pregnancy


Failed tubal ligation results in unintended pregnancy

A Maryland woman and her husband decided that they no longer wanted to have children and expressed this to the woman’s gynecologist, who recommended that she undergo a laparoscopic tubal ligation. Several months later, the patient became pregnant and gave birth to a son.

They sued the gynecologist and claimed that this additional child put an economic hardship on the family, now raising 4 children. The fourth child has language delays and learning disabilities.

The gynecologist contended that a known, common complication of this procedure can be the regrowth of the fallopian tubes, resulting in unintended pregnancy.

The verdict

The verdict was for the patient and her husband. The award was $240,000 for the cost of raising a fourth child and $157,000 to cope with the child’s special needs, for a total of $397,000.

Torn sigmoid colon during ovarian cyst surgery

A New York woman in her 40s had a large cyst on her ovary surgically removed in a hospital by her gynecologist. Following the operation, the patient experienced intense abdominal pain, which went undiagnosed for 10 days. When the patient was seen, her white blood cell count was abnormal and exploratory surgery was done, which revealed a tear in the sigmoid colon. A colostomy was done and the woman had another operation to repair the tear and a residual hernia.

The patient sued the original gynecologist, claiming that her colon was torn during the first surgery and that he failed to properly perform the procedure and to address the injury in a timely manner.

Next: Rates of unintended pregnancy in US at historic low

The gynecologist argued that colon injury is a known complication of this procedure and such injuries are not readily identified until days after the operation.

The verdict

The jury awarded the patient $20,000 in past lost earnings, $700,000 in past pain and suffering, and $800,000 in future pain and suffering, for a total award of $1.520 million.

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