$2,500,000 – Spastic Diplegia, Severe Mental Retardation, Seizure Disorder, Bowel / Bladder Incontinence

F&F# A03068

Settlement: $2,500,000

Injuries:  Spastic Diplegia, Severe Mental Retardation, Seizure Disorder, Bowel / Bladder Incontinence

Facts and Claim of Liability:

Infant plaintiff was born on August 25, 1993 at first Defendant Hospital Albert Einstein College of Medicine three months premature via vaginal delivery. He weighed 969 grams at birth.

Prior to giving birth, plaintiff mother had an uneventful pregnancy. She had no prenatal surgery, significant injuries or other illnesses; nor did she have blood changes. She also tested negative for Group B streptococcus (GBS) and urinary tract infection (UTI).

On August 19, plaintiff mother noticed that she was spotting. She decided to go to the hospital, and arrived at defendant hospital late in the morning. She was put into a room and examined, and a fetal heart rate monitor was placed on her stomach. A sonogram was performed, and plaintiff mother was given drugs to stop her labor.

Almost a week later, on August 25 at around noon, infant plaintiff was born. His Apgar scores were 8 and 8 at 1 and 5 minutes, respectively. Almost immediately after birth, he was taken to the Neonatal Intensive Care Unit (NICU). An ultrasound of the head revealed no evidence of hydrocephalus or intraventricular hemorrhage.

Plaintiff mother recalls that infant plaintiff remained in the NICU for some time. While there, he had a number of blood transfusions. Plaintiff mother recalls being told that he needed to reach a “certain weight” before he could be sent home.

On October 18, infant plaintiff was finally released from the hospital. Before they went home, plaintiff mother recalls asking for a sleep apnea machine, as she had seen that infant plaintiff had been on one in the NICU and that it had “gone off” a couple of times. Hospital staff assured plaintiff mother that infant plaintiff did not need one.

In subsequent days, plaintiff mother recalls that infant plaintiff did quite well. However, about a week later, he appeared to be sick. Plaintiff mother took him to a pediatrician, who told her that it was “just a head cold.”

A couple of days later, infant plaintiff’s condition had not improved. Plaintiff mother also noticed that that he made “weird sounds” after she fed him. She took him to second Defendant Hospital Our Lady of Mercy Medical Center in the Bronx, where she was told that infant plaintiff’s condition was serious and that he would need to be transferred to third Defendant Hospital, Montefiore Medical Center. Hospital staff at third defendant hospital ultimately told plaintiff mother that infant plaintiff had severe brain damage.

Ultimately, infant plaintiff was diagnosed with spastic diplegia, severe mental retardation, seizure disorder, and bowel / bladder incontinence, all of which are permanent. Infant plaintiff will never be able to live alone, and will remain dependent upon others for care and sustenance. He will require a supportive living environment either at home with appropriate help or in a institutional setting, and will never be employable.

Fitzgerald & Fitzgerald filed suit in Bronx County Supreme Court, arguing that defendant hospital staff and respective defendant hospitals departed from good and accepted medical practice in the care of infant plaintiff in failing to recognize upper respiratory tract (URI) symptoms, failing to consider the possibility of a respiratory syncytial virus (RSV), failing to perform  a nasal wash to test for RSV, and failing to follow up with infant plaintiff between 11/29 and 12/2, all of which resulted in infant plaintiff sustaining severe and permanent injuries. Ultimately, Fitzgerald & Fitzgerald settled with defendants for a total of $2,500,000.00.