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$3M Verdict Against Hospital for Infant’s Brachial Plexus Injury


A woman and the woman’s obstetrician agreed to induce labor. Pitocin, a drug designed to induce labor, was administered. Two of the hospital’s medical residents monitored the woman’s labor throughout the day and night.

 

In the middle of the night, the woman began to deliver the baby before the obstetrician arrived. Once the infant’s head had been delivered, the infant’s shoulder became stuck against the woman’s pubic bone. One of the residents diagnosed shoulder dystocia, a type of obstructed labor when the shoulders fail to deliver shortly after the head. The resident placed the woman’s legs up against the woman’s chest to attempt to expand the opening of the pelvis. The resident had a nurse apply pressure on the woman’s abdomen while the resident attempted to free the shoulder. The attempt was unsuccessful.

 

The resident attempted another maneuver to free the infant’s shoulder. The resident attempted to rotate the shoulders 180 degrees to release the obstructed shoulder from the pelvis. The attempt was unsuccessful. The staff obstetrician and gynecologist at the hospital attempted to perform the same maneuver unsuccessfully.

 

The staff obstetrician and gynecologist then attempted to deliver the infant’s unobstructed arm. This ultimately freed the infant’s obstructed shoulder and allowed the staff obstetrician to deliver the rest of the body.

 

Following the delivery, the infant was diagnosed with a permanent brachial plexus injury affecting all levels of the nerve roots. When the child was six months old, the child underwent surgery, during which neurologists took three nerves from the child’s leg and grafted them into the shoulder. At three years of age, the child underwent a second surgery, at which point, the parents learned that the child’s brachial plexus, the network of nerves that extends from the spinal cord to the armpit, would never regain normal function.

 

The child filed a medical malpractice action against the hospital. The complaint alleged the hospital’s two medical residents breached the standard of care by applying excessive lateral or rotational traction to the child’s head or neck.

 

The hospital contended that the child was injured by the mother’s contractions after the child’s shoulder became stuck during delivery.

 

At trial, the child’s standard of care expert testified that the propulsive forces of labor alone had never been scientifically shown to cause permanent brachial plexus injury. The expert explained that congenital defects, osteomyelitis, and utero anomalies during pregnancy could also result in brachial plexus deficiencies, but none of those exceptions offered a biologically plausible alternative explanation for the child’s injury in this case. The expert testified that the most common cause of permanent brachial plexus injury was excessive lateral or rotational traction applied by a physician during delivery, which accounted for 90 to 94 percent of permanent brachial plexus injury cases. The child’s standard of care expert explained that hospital records revealed the child had bruising on the right cheek and forehead after birth, which the expert said confirmed that excessive traction was applied in a downward fashion.

 

Regarding the standard of care, the child’s expert explained that physicians with less than four years of experience following a residency are more likely to cause brachial plexus injuries during a delivery. The expert testified that the standard of care required the hospital’s medical residents to contact the woman’s obstetrician when the woman was eight centimeters dilated and when the woman had the urge to push. In the child’s expert’s opinion, if an experienced physician, like the woman’s obstetrician, had been present at the delivery, then the experienced physician could have safely released an impacted shoulder and successfully delivered a fetus without causing permanent injury.

 

The woman’s nephew testified that the hospital’s medical residents and staff obstetrician and gynecologist pulled really hard on the infant’s head to such an extent that the nephew thought that they were going to rip the child’s head off. The nephew testified that one of the hospital’s medical residents had left a footprint on the woman’s bed as a result of pulling.

 

The Genesee Circuit Court and the child suggested on the record that the parties had discussed the admission of the child’s past medical bills. The hospital asserted that it did not stipulate to the admissions of the past medical bills. After the close of proofs during closing arguments, the trial court allowed the child to admit the past medical bills.

 

The jury returned a verdict in favor of the child. The jury awarded damages for past and future medical and caretaker expenses, past and future pain and suffering, and lost earning capacity totaling $2,997,623. Of that award, the jury awarded $45,000 for the child’s past medical expenses.

 

The Court of Appeals of Michigan affirmed the trial court’s judgment in all respects except regarding the $45,000 awarded for past medical expenses, which it reversed. The court held that (1) the child’s standard of care expert’s testimony was supported by facts, (2) the child’s standard of care expert was qualified to testify regarding the standard of care, (3) the child presented sufficient evidence of the need for future occupational and physical therapy, and (4) the jury’s award of $45,000 for the child’s past medical expenses was unsupported by any evidence properly submitted before the close of proofs.

 

The child’s standard of care expert’s testimony was supported by facts. The record included sufficient facts to support the expert’s conclusion that excessive traction occurred in this case. The expert’s opinion was based on more than a statistical probability. The expert specifically referred to the bruising on the child’s face and referred to the woman’s nephew’s eyewitness testimony. The court concluded that the trial court did not err in admitting the standard of care expert’s testimony on the basis that it was sufficiently supported by facts.

 

The child’s standard of care expert was qualified to testify regarding the standard of care. The hospital failed to show that the child’s standard of care expert lacked sufficient knowledge, skill, experience, training, or education to offer an opinion regarding the standard of care merely because he did not oversee residents in the year or two immediately preceding the alleged malpractice. The child’s standard of care expert testified that the standard of care had not changed in the year or two immediately preceding the alleged malpractice. The hospital offered no expert testimony to contradict the child’s standard of care expert’s opinion that the standard of care had not changed in the year two immediately preceding the alleged malpractice. Considering the child’s standard of care expert’s educational background and professional experience working with residents in obstetrics and gynecology over two decades, the court concluded that the trial court did not abuse its discretion by concluding that the child’s standard of care expert was qualified to offer expert testimony regarding the standard of care applicable to the hospital’s medical residents practicing obstetrics and gynecology.

 

The child presented sufficient evidence of the need for future occupational and physical therapy. Although the child’s treating physiatrist offered inconsistent opinions regarding the child’s need for weekly occupational and physical therapy, there was additional evidence in the record that established a need for weekly occupational and physical therapy. The child’s supplemental life care planner and original life care planner both included weekly occupational and physical therapy in the child’s life care plans. The child’s supplemental life care planner was qualified to offer testimony that weekly occupational and physical therapy were necessary for the child’s future medical care because the supplemental life care planner had worked for more than 40 years with individuals with physical limitations and disabilities; had a bachelor’s degree in physical impairment, cognitive impairment learning, and emotional difficulties; had a master’s degree in vocational rehabilitation; was a certified rehabilitation counselor; and was a certified disability management specialist. The court reasoned that considering the child’s supplemental life care planner’s background and experience, the mere fact that the child’s supplemental life care planner was not a medical practitioner should not render the child’s supplemental life care planner incapable of offering testimony as an expert witness. Instead, any limitations on the child’s supplemental life care planner’s testimony would be relevant to the weight of the testimony, not its admissibility. Additionally, a pediatric neurologist testified that there would be atrophy in the child’s right arm for the rest of the child’s life as a result of the injury and that preventing that atrophy would be dependent upon how diligently the child was subjected to physical and occupational therapy. The court concluded that the hospital was not entitled to a partial judgment notwithstanding the verdict regarding the child’s future economic damages claim related to occupational and physical therapy.

 

The jury’s award of $45,000 for the child’s past medical expenses was unsupported by any evidence properly submitted before the close of proofs. Although the child and the trial court suggested near the end of trial on the record that the parties had discussed the admission of the child’s past medical bills, counsel for the hospital asserted that counsel did not stipulate to the admission of the child’s past medical bills and the trial court agreed that it was not clear whether there was an agreement between the parties. The court found that the record did not support the trial court’s admission of the child’s past medical bills before the close of proofs, or a finding that counsel for the hospital ever stipulated to their admission during the case. Accordingly, this evidence was not properly presented to the jury. The court concluded that the appropriate remedy for this error was not a new trial, but rather removal of the $45,000 awarded for past medical expenses from the judgment.

 

The Court of Appeals of Michigan affirmed the trial court’s judgment in all respects except regarding the $45,000 awarded for past medical expenses, which it reversed.

 

See: Bryson v. Genesys Regional Med. Ctr., 2018 WL 1611438 (Mich.App., April 3, 2018) (not designated for publication).

 

See also Medical Law Perspectives Report: Mothers, Infants, and Obstetrical Injuries: Labor and Delivery Liability Risks

 

 

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