Legal Review & Commentary
Brain-damaged child: $30 million malpractice verdict
After an extraordinary 14 years of litigation, a Broward County, FL, jury recently entered a $30 million verdict against a hospital and an obstetrician for damages arising out of the birth of a child with brain damage. The 36-year-old mother began seeing the obstetrician in October 1990. She had previously had a cesarean for her first child after she was in labor for 12 hours. The obstetrician recommended a vaginal birth for the second child, and the mother agreed. She presented at a Florida hospital for the birth of the second child in May 1991. She was in labor for nine hours before doctors performed a cesarean. The child was born oxygen-deprived and brain-damaged. Two years later, the son was diagnosed with cerebral palsy and mental retardation.
The parents sued on behalf of the child and themselves, and the case originally went to trial in 1998. The jury found for the defense. However, the Florida Supreme Court reversed the jury verdict, finding that the trial court had improperly excluded expert testimony from a neuropsychologist on brain damage and brain development. In 2003, the case was remanded for a second trial. The plaintiffs argued at trial that the defendants should have performed the cesarean earlier because of fetal heart monitoring strips, which showed that the child was not receiving enough blood and oxygen to his brain. They further argued that it should have been obvious to the defendants that the child could not be born through the birth canal. The defense denied that the fetal monitoring indicated any problems, and further argued that the child's brain injuries developed earlier in the pregnancy not during the birth.
The trial lasted five weeks. After deliberating for three days, the jury awarded a total of $30 million to the child and both parents, finding the hospital 85% liable and the obstetrician 15% liable. The award included a total of $24.5 million for the child, including $8 million for medical expenses and lost earnings and $16.5 million for pain and suffering. The jury also awarded the parents a total of $5.5 million for loss of comfort. It was the largest medical malpractice verdict in the history of Broward County.
Reference
- Tomlian v. Grenitz, Case No. 94-08121, Broward (FL) County.
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