Kerry & Rob's Cerebral Palsy Story

[This is based on an actual birth injury case that was recently settled. The names of the parties have been changed]

Kerry Smith was 25, recently married, and pregnant with her first child when she went for her first prenatal care visit with Dr. Cathleen Willis at Hillside OB/GYN in June 2011. Dr. Willis told Kerry her estimated due date was December 23. Kerry continued to see Dr. Willis and the staff at Hillside for prenatal care and all her prenatal tests and ultrasounds came back perfectly normal.

By the start of December, Kerry was looking forward to having a new baby for Christmas. When Kerry went in for one of her last prenatal check-ups a week before her due date, Dr. Willis sent her to the hospital and said they were going to induce labor. After being taken back into one of the labor and delivery rooms at the hospital, the nurses strapped an electronic fetal monitoring (EFM) device around Kerry’s abdomen. EFMs monitor the baby’s heart rate and the strength and frequency of the mother’s contractions. Certain patterns in the fetal heart rate are warning signs that the baby is under stress and not getting enough oxygen. The fetal heart patterns for Kerry’s baby were initially normal.

Around 8:00 am Dr. Willis, instructed the staff to start Kerry on Pitocin. Pitocin is a hormone drug that is used to induce labor by stimulating the muscles in the uterus to contract. If not managed appropriately, Pitocin can cause contractions to occur too frequently which can put the baby at risk. Shortly after Kerry was started on Pitocin, Dr. Willis came in and broke her water.

Kerry’s labor progressed somewhat slowly from that point. At around 6:00 pm, 8 hours after starting on Pitocin, a somewhat concerning fetal heart pattern had already started to develop. At the time, Kerry was unaware of this fact. She did notice that the nurses were paying much closer attention to the EFM readings than they were before. At 6:30 pm, Dr. Willis came in and started coaching Kerry to push through her contractions. For the next 90 minutes, Kerry continued pushing through contractions while Dr. Willis was in and out of the delivery room.

By 8:30 pm, 2 hours after Kerry started pushing, the fetal heart patterns were starting to show signs that the baby was not getting enough oxygen. Again, nobody said anything to Kerry, but she could tell something was up just based on how the nurses and Dr. Willis were acting. At 8:35 pm Dr. Willis attempted a vacuum extraction delivery but was unsuccessful. Dr. Willis made 3 more unsuccessful vacuum extraction attempts over the next 12 minutes. Finally, at 8:50 pm, Dr. Willis told Kerry they were going to do an emergency C-section.

It took another 10 minutes to transport Kerry to the operating room. The operation began almost immediately and Kerry’s son, Jason, was delivered by C-section 9 minutes later. Kerry’s heart immediately dropped when she saw Jason for a second before he was surrounded by a circle of doctors. Jason’s little body was limp and motionless. What unnerved Kerry the most was how blue his color was. Jason was not breathing when he came out, but the doctors were able to resuscitate him. He was immediately intubated and placed on a mechanical ventilator in transferred to the NICU.

Even though she was physically exhausted, Kerry could barely sleep that first night. Jason was 2 floors above her in the NICU with tubes coming out of him, while Kerry’s husband, Rob, checked in with updates. Kerry never saw or heard from Dr. Willis and she was left guessing about what exactly went wrong. Rob insisted that Dr. Willis “screwed up,” but he couldn’t really explain what she did wrong, and Kerry found that hard to believe.

The next morning brought a glimmer of hope when Kerry and Rob learned that Jason had been taken off the ventilator and was breathing on his own. Rob rushed up to the NICU and was elated to find Jason wrapped in a blanket without all the tubes coming out. At first, Jason felt a huge relief, like they had dodged a major bullet, and everything was going to fine. He went back down and told Kerry how “normal” Jason looked and they both started texting family and friends with the good news.

The following day a head ultrasound was done on Jason and it showed signs of a possible brain bleed. The NICU nurses also noted that Jason was abnormally stiff and jittery. Jason remained in the NICU for another 3 weeks. Kerry was sent home after 5 days, but she and Rob spent most of their time at the hospital.

During this time Kerry and Rob became increasingly frustrated with the lack of answers about Jason and his condition. They knew something was wrong with Jason. He didn’t feel or act like a normal newborn baby. He would arch his back and get stiff when held and his movements were jittery and rigid.

Eventually, the day before Jason was discharged from the NICU, the lead doctor met with Kerry and Rob and told them that Jason had a type of brain condition called “hypoxic ischemic encephalopathy” (HIE). When pressed for an explanation as to how this happened, the NICU doctor told them that the “most probable explanation” for Jason’s condition was “inadequate oxygenation in utero.”

Over the next few months, Kerry and Rob slowly began to learn about Jason’s condition and what it might mean for him in the future. They desperately wanted to know if Jason would be “normal,” but the doctors kept telling them it was too early to be sure. Kerry struggled to make sense of how this could have happened, but Rob remained absolutely convinced that Dr. Willis and the delivery team at the hospital were to blame for Jason’s condition. Jason wanted to hire a malpractice lawyer, but Kerry refused. She was still holding out hope that Jason would be normal. Kerry also had a hard accepting that Dr. Willis or the delivery team might have been negligent.

When Jason was 14 months old, Kerry’s hope for a good outcome ended. A developmental pediatrician diagnosed Jason with Spastic Cerebral Palsy. The doctors explained that this was a permanent condition and that Jason would require significant medical care and support for the remainder of his life. Jason would never be “normal.” Rob pressed the doctor about whether Jason’s condition could have been caused by medical negligence during delivery, but he was not willing to give an opinion on that.

A few days after this diagnosis, Rob finally got Kerry to agree to consult with a lawyer about a malpractice case. They searched for birth injury lawyers online and found a law firm near them that regularly handled birth injury malpractice cases. They set up a consultation the following day and met with one of the firm’s attorneys. After listening to Rob and Kerry’s story about what happened during Jason’s delivery, the lawyer told them that they might have a valid claim for medical malpractice against Dr. Willis, her practice, and the hospital.

The lawyer explained that his firm would need to collect all the relevant medical records from the hospital and Dr. Willis. The lawyer would then hire another doctor (an OB/GYN) as an expert witness consultant to review the medical records and give an opinion as to whether Dr. Willis and the delivery team were negligent. If this doctor agreed that the delivery team may have been negligent, then they could file a medical malpractice lawsuit.

At the end of their consultation, Kerry and Rob signed a contingency fee agreement hiring the lawyer and his firm to represent them (and Jason). They also signed forms authorizing the law firm to get records from Kerry’s medical providers. Kerry and Rob left the meeting feeling very optimistic and ready to pursue their case. After their initial meeting, however, weeks went by and it seemed like nothing was happening. One of the firm’s paralegals sent them another medical authorization form to sign, but otherwise, Kerry and Rob didn’t hear anything at all.

After 3 months passed without any word, Rob called the lawyer’s office and asked what was going on with their case. The lawyer said that they just finished collecting all of the medical records and were in the process of retainer expert consultants to review them and provide opinions. The lawyer followed up the next week to say that they had hired an OB/GYN expert and a nursing expert to review the case. Another month passed before the lawyer called to say that both experts agreed that Dr. Willis and the hospital delivery team may have been negligent.

Based on these preliminary expert opinions, the lawyer explained that they could now file a medical malpractice lawsuit. Later that week, the lawyer forwarded a copy of the Complaint that was being filed in court to start the lawsuit. The Complaint was 30 pages long and it named several separate defendants including Dr. Willis, Hillside OB/GYN, LLC, one of the nurses, and the hospital. The Complaint set forth a detailed factual summary of everything that happened during Jason’s delivery.

After the factual summary, the Complaint set forth negligence claims against the defendants. The negligence claims in the Complaint articulated, for the first time, exactly what went wrong during the delivery and the mistakes that Dr. Willis and the delivery team made which led to Jason’s injury. The Complaint alleged that Dr. Willis and the nurses ignored signs of fetal distress on the EFM heart monitor and continued trying to deliver Jason manually instead of ordering an emergency C-section.

After the filing of the Complaint, there was another long period of inactivity. Rob and Kerry didn’t hear from the lawyer’s office for several months. Eventually, the lawyer called Rob and explained that he and Kerry needed to have their depositions taken. The following month Kerry and Rob gave deposition testimony at the conference room in their lawyer’s office. The lawyers for the defendants asked all the questions while a court reporter took everything down.

After Kerry and Rob’s depositions, several more months passed before they heard anything at all about their case. It had been 13 months since the lawsuit was originally filed and Rob was getting anxious. He called the lawyer’s office and was told that they were still in the process of taking depositions of the various expert witnesses in the case. The lawyer also told Rob that they had retained an expert to prepare a “life care plan” that would estimate the total lifetime cost of Jason’s injury (e.g., how much his future medical care and therapy would cost, future lost wages, etc.). The lawyer also told Rob that the deadline for completion of discovery was in 6 months and that the tentative date for trial was 3 months after that.

Over the next 7 months, Kerry and Rob heard very little from the lawyer about their case. Occasionally the lawyer or one of his paralegals would contact them to ask for certain documents or information, or to get them to sign new authorization forms for medical records. But that was the extent of their communications with the lawyer’s office during this time frame.

Then in June, 2 months before the trial date in the case, the lawyer called and told Rob that he was expecting a settlement offer from the hospital. The lawyer explained what to expect and said he would call Rob back as soon as an offer was received. 3 days later, the lawyer called Rob and said that the hospital was offering to settle for $3 million. The lawyer explained that this would only settle the claims against the hospital and not the claims against Dr. Willis and her practice. The lawyer advised them to reject this offer because they could get more money. Rob and Kerry had no interest in holding out to leverage more money out of the hospital, so they called the lawyer back the next day and told him to accept the offer.

Meanwhile, the defense team for Dr. Willis and her practice refuse to talk about a settlement and gave every indication that they were prepared to go to trial. Over the next 6 weeks, as the paperwork on the settlement with the hospital got finalized, the lawyer started prepping Rob and Kerry for trial. 2 weeks before the trial was set to begin, the lawyer called again and said that the defense made an offer to settle the case for $5 million.

Again, the lawyer advised Kerry and Rob that they should turn this down because the case was worth more. With the $3 million settlement from the hospital already locked up, Kerry and Rob felt more comfortable holding out for more, so they agreed and rejected the offer. The following week the lawyer called to say that they increased the settlement offer to $6 million. Although the lawyer said he was confident that they could get more from a jury, Kerry and Rob instructed him to accept the offer.

Out of the settlement total of $9,000,000, the lawyer got $3,200,000 for their 33% fee plus the costs of expert witnesses and other expenses they incurred in the case. Rob and Kerry got $3,800,000 and the remaining $2,000,000 went into a trust fund for the benefit of Jason.