$3,100,000.00 – Periventricular Leukomalacia, Cerebral Palsy

F&F# A02183

Settlement: $3,100,000

Injuries: Periventricular Leukomalacia, Cerebral Palsy

Facts and Claim of Liability:

First infant plaintiff was born on December 1, 1994 at Defendant Hospital SUNY Downstate Medical Center at 29 weeks gestation via vaginal delivery. He weighed 2 lbs 11 oz at birth. Second infant plaintiff was born on December 5, 1994 at Defendant Hospital SUNY Downstate Medical Center at 29 weeks gestation via vaginal delivery. He weighed 3 lbs 4 oz 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).

In the beginning of November, plaintiff mother began to experience preterm labor. She went to defendant hospital, where she was admitted and monitored closely for five days. She was then released, and told to stay on total bed rest for the remainder of her pregnancy.

On November 21 in the middle of the night, plaintiff mother noticed that she was leaking clear fluid. She immediately went to defendant hospital’s emergency room.

Once she arrived at defendant hospital, she was admitted and put into a room. She was examined, and told that she was leaking amniotic fluid. She was sent to the maternity ward, where she was put into another room and a fetal heart monitor was placed on her stomach. Plaintiff mother recalls that hospital staff would only use the fetal heart monitor “randomly” (they would turn it on and off at times), and that she was administered drugs to stop her preterm labor. Plaintiff mother also recalls that over the next couple of days, she continued leaking amniotic fluid. The fetal heart rate monitor also revealed nonreassuring patterns.

On November 30 at around 10:00 p.m., plaintiff mother had fallen asleep when she was suddenly woken by severe labor pains and contractions. She called for a nurse numerous times, but when a nurse finally came, she told plaintiff mother that she had other patients that needed attending to first.

The next day, on December 1 at around 6:30 a.m., plaintiff mother recalls that a doctor came in to check on her. When he realized that she was about 4 cm dilated, he had hospital staff rush plaintiff mother to labor and delivery. Eventually, first infant plaintiff was born vaginally at around 7:14 a.m. His Apgar scores were 8 and 9 at 1 and 5 minutes, respectively. Almost immediately after he was born, he was taken to the Neonantal Intensive Care Unit (NICU).

Plaintiff mother recalls that hospital staff then performed a sonogram to see what second infant plaintiff’s position was. According to plaintiff mother, hospital staff told her that the “membrane was still intact” and that the baby’s “head was still up.” Hospital staff decided to wait and see if the baby would turn. A second sonogram was performed about five hours later, but the baby’s position had not changed. Hospital staff told plaintiff mother that the baby would not be born that day, and that they would continue to monitor her. They put the umbilical cord back in, and placed a blood pressure cuff on her arm and a fetal heart rate monitor on her stomach.

A couple of days later, on December 4 at around 6:00 a.m., plaintiff mother’s water broke completely. She was rushed back to labor and delivery, where hospital staff continued to monitor the progress of her labor for the rest of the day. Finally, on December 5 at 1:14 a.m., second infant plaintiff was born. His Apgar scores were 6 and 8 and 1 and 5 minutes, respectively. Like his brother days before, he was rushed to the NICU almost immediately after birth. Plaintiff mother was not given an explanation.

The next day, on December 6, plaintiff mother went to visit infant plaintiffs in the NICU. She recalls seeing them in incubators, and being told that second infant plaintiff had developed severe jaundice.

In subsequent weeks, second infant plaintiff’s condition deteriorated. He remained under lights for two weeks, and during this time also required a number of blood transfusions. It was ultimately determined that second infant plaintiff’s severe jaundice was due to his having an incompatible blood type with plaintiff mother.

Finally, on January 4, second infant plaintiff was released from the hospital. Plaintiff mother was told, for the first time, that he had suffered a cerebral hemorrhage, and that this was “very common” in premature babies, and that if he had been a full-term baby it would not have happened.

In June, when infant plaintiffs were about six months old, plaintiff mother noticed that second infant plaintiff would not crawl, although he would try. He also could not sit up on his own. Although plaintiff mother pointed this out to the pediatrician, she was told that he was “fine” and that she needed to remember that he had been premature.

Plaintiff mother continued to notice significant delays in second infant plaintiff the rest of the year. Finally, in January, a neurologist ordered an MRI, which revealed the ruptured blood vessel. The neurologist told plaintiff mother that the ruptured blood vessel had “suffocated” the part of the brain that controls motor functions, and that lack of oxygen to the brain had caused brain damage.

Ultimately, second infant plaintiff was diagnosed with periventricular leukomalacia and, later on, cerebral palsy.

Fitzgerald & Fitzgerald filed suit in the Court of Claims, State of New York, arguing that defendant hospital staff departed from good and accepted medical practice in the care of infant plaintiff in failing to timely deliver infant plaintiffs via caesarean section in light of mounting evidence that plaintiff mother had an infection, which ultimately resulted in severe and permanent injuries to infant plaintiff. Ultimately, Fitzgerald & Fitzgerald settled with defendants for $3,100,000.00.