Medical malpractice cases based upon labor and delivery events are a world unto themselves. The consequences of negligent conduct during the advent of life outside the mother can be dramatic. One consequence is a child with injuries resulting in brain damage. More specifically, errors during labor, or delivery, or even the moments thereafter can cause hypoxic ischemic encephalopathy. Static encephalopathy is more commonly known as cerebral palsy.
Setting aside the negligent conduct or non-negligent factors that can arguably cause fetal and new-born brain damage, at least for this blog, the practitioner still faces a complex maze in terms of both causation and damages. The challenges in proving causation are juxtaposed with reasonable damage calculations that run in to the tens of millions of dollars.
The settlement of civil litigation matters is typically a function of “buying down risk” as we say. In other words, the defendant pays, in theory, a sum that equals the risk of loss at trial multiplied by the reasonably anticipated jury award. The plaintiffs, typically the newborn’s parents both individually and as a representative of the newborn, employ a very similar calculus: the total reasonably anticipated anticipated award, less the risk of loss figure. The problem is that the parties rarely share the same view as to the values for either of the critical variables. For example, the defendants’ attorneys may believe that they have a 25% risk of losing at trial and the total reasonable damage figure is $20,000,000. That results in a settlement value of $5,000,000, plus the cost of trial. The plaintiffs, on the other hand, may believe that they have a 50% chance of winning a $50,000,000 verdict. That results in a $25,000,000 settlement value estimate, minus the cost of a trial. The result is about a $19,000,000 delta between the parties’ estimates that will probably result in a trial.
One tactic that I have heard much about in meditations, and very little about in trials, is the use of brackets. In other words, the jury is given a range for damages. The defendants, in essence, buy that range from the plaintiffs. For example, the defendants agree to pay the plaintiffs $3,000,000 regardless of the verdict if the plaintiffs agree to a jury award cap of $12,000,000. Why don’t cerebral palsy litigants do this? In my opinion, it is because the defendants surrender their greatest leverage—the plaintiffs’ fear of getting $0 at trial, despite having to finance the care of a severely impaired child for 50-65 years. And the truly paranoid defendants will also believe that such a reasonable practice would invite litigation.
Two recent verdicts¹ and affirming appellate opinions amply demonstrate the mutually catastrophic risk at play when cerebral palsy litigants proceed to trial. I will delve in to both cases in more detail in future blogs. For now, I will simply note that one plaintiff received $0, and the other received $114,000,000. Surely the cases must have been dramatically different? Perhaps not. Let’s look at some of the significant similarities:
1. Both babies had pre-existing genetic or natal conditions the defendants blamed for the hypoxia. One child had genetic defects that resulted in missing brain parts. Regardless, she and her parents prevailed and received the $114,000,000. The defendants in the other case weakly pointed to a placental abnormality that, in theory, could cause neurological impairment. The jury found in favor of that defendant.
2. The mother of the prevailing child weighed 328 pounds signaling the possibility of gestational diabetes, often resulting in a large baby requiring a cesarean delivery to avoid a traumatic delivery. She did not receive one, and the delivery was indeed traumatic. The parties’ experts disagreed as to whether or not the electronic fetal monitoring raised red flags suggesting inadequate fetal oxygenation caused in part by uteral hyper-stimulation from Pitocin. The child that lost at trial, on the other hand, was delivered by C-section approximately 17 hours after the on-set of labor.
3. All of the parties in both cases appeared to be represented by vigorous highly experienced attorneys armed with well-qualified expert witnesses. Notably, however, the prevailing plaintiff patched together dictation errors in the medical records to suggest a cover-up by the medical staff.
Unfortunately, the legal opinion regarding the child that failed to prevail does not indicate how much money she requested from the jury. In the other case, the trial court reduced the jury’s award down to $114,000,000.
There is so much more to be said about settlement valuations, causation theories, and damage calculations in this area, as well as the legal opinions that shed light upon all of those issues. For now, simply wonder what the internal settlement valuations were for the four parties in each of the two cases. Food for thought.
¹ Snellen, et al v. Capital Region Medical Center and Vanslembrouck, et al v. Halperin, et al.
² I am currently participating in a cerebral palsy case in which there are no genetic factors upon which the defendants may lay blame.