$5,350,000 – Medical Malpractice, Perinatal Ischemia, Perientricular Leukomalacia, Spastic Quadriplegic Cerebral Palsy, Mental Retardation, Wheelchair-Bound

F&F# A06069

Medical Malpractice, Perinatal Ischemia, Perientricular Leukomalacia, Spastic Quadriplegic Cerebral Palsy, Mental Retardation, Wheelchair-Bound

Settlement: $5,350,000

Injuries: Perinatal Ischemia, Perientricular Leukomalacia, Spastic Quadriplegic Cerebral Palsy, Mental Retardation, Wheelchair-Bound

Facts and Claim of Liability:

Infant plaintiff was born on December 2, 2003 at Defendant Hospital New York-Presbyterian/Allen Hospital at 33 weeks gestation via vaginal delivery. He weighed 3 lbs 11 oz at birth.

Before giving birth, plaintiff mother tested negative for Group B streptococcus (GBS); however, she was treated for both bacterial vaginosis and urinary tract infections (UTIs).

Between the fourth and seventh month of pregnancy, plaintiff mother recalls being in and out of various hospitals due to premature contractions. Each time, she was put into a room for observation for about three or four days, and then she was discharged. She was not given any medication save Keflex and Flagyl for the bacterial vaginosis and UTIs.

Less than a month before delivery, on November 15, plaintiff mother presented to defendant hospital complaining of premature contractions. She was put into a room for observation. The next day, a fetal fibronection (fFN) test revealed that she had a positive fFN result. Her blood glucose levels were noted as 157 mg/dL, but no further tests were run. The next day, on November 18, defendant OB/GYN examined plaintiff mother and administered a course of tocolytics. A day later, defendant OB/GYN told plaintiff mother she could go home.

Plaintiff mother returned again to defendant hospital on November 29, complaining of cramping and urinary frequency. She was again put into a room for observation; however, hospital staff noted no contractions. Although defendant OB/GYN was present in the hospital and was aware that plaintiff mother had been admitted, he did not see her. Plaintiff mother was again given Keflex and Flagyl – but no tocolytics – and shortly thereafter was discharged.

On December 2 at 7:43 a.m., plaintiff mother again presented to defendant hospital complaining of severe labor pains and vaginal contractions. She was again put into a room for observation. A fetal heart monitor revealed variable, and later late, decelerations. A nurse finally called for plaintiff mother’s OB/GYN, who noted that plaintiff mother was fully dilated. He encouraged her to push. Ultimately, at 10:06 a.m., the OB/GYN, using forceps, delivered the baby following a midline episiotomy incision. Infant plaintiff’s Apgar scores were 9 and 9, and he was noted as being alert, active, and pink with a weak cry and good suck. After he was dried and suctioned, the baby was taken to the regular nursery. Continuous positive airway pressure (CPAP) was given initially, but the baby was quickly weaned off of it by his second day. Head ultrasounds revealed neither perientricular leukomalacia (PVL) or intraventricular hemorrhage (IVH). After about a month, infant plaintiff was discharged from defendant hospital.

Two months later, plaintiff mother brought infant plaintiff to see another doctor because she was concerned about infant plaintiff’s apparent lack of neck control and crossing eyes. The doctor told her not to worry, and that it was “normal” for a premature baby to do these things.

At four months old, infant plaintiff became ill. Plaintiff mother took the baby to the emergency room at defendant hospital, where a doctor noticed that the baby’s eyes appeared to be turning a dark, almost black color. He advised plaintiff mother to consult an ophthalmologist, which she did. Plaintiff mother was informed that the baby’s eyesight was fine, but that she should take him to a neurologist. Plaintiff mother did so. Ultimately, infant plaintiff was diagnosed with cerebral palsy. An MRI revealed perientricular leukomalacia (PVL) consistent with perinatal ischemia.

Currently, infant plaintiff is nine years old. He has been diagnosed with spastic quadriplegic cerebral palsy as well as mental retardation. He attends school in special education. He receives physical therapy three times a week, occupational therapy twice a week, and speech language therapy three times a week. He requires assistance in dressing, as well as in bathing and grooming activities. He is not toilet trained, and requires four to five diapers a day. He can crawl, but he is non-ambulatory, and is wheelchair bound. He will never be commercially employed or able to live independently.

Fitzgerald & Fitzgerald filed suit in Westchester County Supreme Court, arguing that defendant OB/GYN and defendant hospital departed from good and accepted medical practice in the care of infant plaintiff in failing to prolong plaintiff mother’s pregnancy, failing to diagnose gestational diabetes, and failing to perform a caesarean section in the face of multiple late decelerations, and that these failures resulted in severe and permanent injuries to infant plaintiff. Ultimately, Fitzgerald & Fitzgerald settled with defendants for a total of $5,350,00.00.