Jury awards nearly $98 million to Iowa City parents of newborn left with brain injury

cubsMDdmb

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I ask because a friend of ours just suffered a brain injury due to an obvious medical error. They intubated her and the tube went into the esophagus unrecognized for 15 minutes. They consulted a lawyer but haven’t gotten an answer to this, since she will be in long term care on Medicaid for the rest of her life, if Medicaid would take the entirety of any settlement.

The hospital has offered the limit of their malpractice insurance, I think it was 3.5 million. I might be wrong on that one.
I can’t imagine not recognizing an esophageal intubation for 15 minutes. The crazy thing is it actually happens, albeit very rarely. That is gross malpractice if done by a physician or CRNA.

With respect to the case listed, no way anyone has that much insurance. Most have a few million of coverage. Some docs refuse to get too much insurance because it puts a target on your back.

Vacuums are used all the time. They help prevent c sections. OB docs try to avoid c sections if possible. Having babies is risky business to the mom and to the baby. Bad things like this happen sometimes. There may have been malpractice here but it also could have been a series of unfortunate events that happened despite the doctor doing what she thought was best for the mother and baby. I would absolutely despise being an obstetrician. Their work schedule sucks and things like this suck even more.
 

Bearhawk0505

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But it does sound like the family will have on-going medical expenses....that will be astronomical. Someone will liable for these.
The family most likely has the child on, “Medicaid for Kids With Special Needs.” Otherwise, they would be bankrupt. The income limits are pretty high to be eligible for that program.
 
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wjr1818

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How many malpractice suits do you think an average hospital is invovled with a year?
First off, this is an unfortunate incident and couldn't imagine going through this. The family deserves a ton.

I work in insurance and while I don't do malpractice insurance, I know of brokers that specialize in that space and work with companies such as Mercy/Unity Point. I would say for a large hospital there are at least 5/year. Rates are going through the roof on this and higher deductibles/self-insured retentions are being pushed to help with these drastic rate increases. A company like Mercy has to be carrying a $10m+ malpractice limit but still probably is paying $1m+ in premium. Obviously the limit won't be enough. Malpractice verdicts are starting to become somewhat similar to trucking companies with their large multi-million dollar verdicts. Therefore, less insurance companies are wanting to insure this type of business and rates continue to increase.
 
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theiacowtipper

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I can’t imagine not recognizing an esophageal intubation for 15 minutes. The crazy thing is it actually happens, albeit very rarely. That is gross malpractice if done by a physician or CRNA.
The intubation was done by a fellow paramedic. This is an incredibly small hospital with an ED staffed by paramedics in the overnight shift, along with a nurse practitioner. They thought she had a PE and assumed they were getting no etco2 because of that. It isn’t a particularly grand moment for the profession.
 
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joelbc1

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you can’t always get what you want!
The family most likely has the child on, “Medicaid for Kids With Special Needs.” Otherwise, they would be bankrupt. The income limits are pretty high to be eligible for that program.
MedicAid will then collect the $$$ I believe....but this family will face challenges in their future that damn few of us can appreciate.....there will be times when "money is the least of their concerns"....
 

cubsMDdmb

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The intubation was done by a fellow paramedic. This is an incredibly small hospital with an ED staffed by paramedics in the overnight shift, along with a nurse practitioner. They thought she had a PE and assumed they were getting no etco2 because of that. It isn’t a particularly grand moment for the profession.
Ouch! At least they had a reason for why they had no etco2. That’s at least plausible. But unless there is no blood pressure and no cardiac output at all you should get CO2. It’s always easy to criticize in retrospect but in most situations everyone is doing what they think is best for the patient at that moment.

Hopefully the obstetrician in Iowa City was doing what she thought was best and can sleep at night because of that. There are certainly instances of malpractice in medicine and I’m not denying that the case in the OP could be malpractice. I’m just saying it isn’t always as cut and dry as some people think.
 

Hawksbyamillion

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This is just sad all the way around, for both the family and the healthcare workers involved. Unfortunately stuff like this contributes to why smaller hospitals across the state have decided to close their labor and delivery units. For many it’s not worth the risk to deliver anymore. Not saying Mercy will stop delivering babies at all here. But in the past five years Washington and Muscatine now no longer deliver babies. Patients now have to travel farther for delivery. This then puts additional pressure on the already busy labor and delivery units across the state that must absorb these extra patients.
 

pablow

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I always find these takes interesting when the lay public has an opinion on them. Several things:

1. No one ever carries this much insurance. For example, I pay into an insurance fund set up for the state of Kansas. I'm only insured up to 2.5 million.

2. Lawyers get 30% of the settlement.

3. Everyone assumes hospitals have deep pockets but they don't. That would cripple most small to medium hospitals if the insurance doesn't cover.

4. Most juries rule against the plaintiffs (doctors win) but when people hear stories about babies they immediately become sympathetic. I don't have any comments on the merits of this case or this personal story. It's a horrible tragedy either way. Sometimes this can be prevented but sometimes it just happens in medicine. Put yourself in the doctors shoes as well. Most are doing the best they can and now you have to live with the fact you're responsible for this child's future. It's a terrible feeling.

5. Crazy monetary awards like this stupid. They should be really based on care needs for the child when it comes to help, future medical visits, educational needs, home care, etc. Put yourself on the other end of it. Say you caused a bad car accident and are insured for 250K on your liability. Now you're personally responsible for all the other medical bills of the person involved.

6. It will be a while before the family sees any money and the suit will be incredibly reduced.

I don't know if this has been mentioned, but the plaintiffs offered to settle at policy limits and the insurance companies declined.

"James [one of plaintiffs' attorneys] said the plaintiffs offered to settle the case before trial for the maximum coverage offered by insurance companies for the hospital and physician, but the insurance companies declined the offer. He would not specify how much such a settlement would have amounted to."

[no link, but in the Des Moines Register]
 

cubsMDdmb

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I don't know if this has been mentioned, but the plaintiffs offered to settle at policy limits and the insurance companies declined.

"James [one of plaintiffs' attorneys] said the plaintiffs offered to settle the case before trial for the maximum coverage offered by insurance companies for the hospital and physician, but the insurance companies declined the offer. He would not specify how much such a settlement would have amounted to."

[no link, but in the Des Moines Register]
Wow! In a case like that you almost have to settle. You can’t let that go to a jury because even if you know you’re in the right you can never predict what a jury will do. A colleague of mine found this out the hard way. Tragic for both sides, the family and the physician.
 
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pablow

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Wow! In a case like that you almost have to settle. You can’t let that go to a jury because even if you know you’re in the right you can never predict what a jury will do. A colleague of mine found this out the hard way. Tragic for both sides, the family and the physician.

Absolutely. Just think how the doctor feels. She needs to hire her own attorney at this point. Her insurance company, and possible the attorney the company hired to represent her, absolutely screwed her.
 

onlyTheObvious

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I don't know if this has been mentioned, but the plaintiffs offered to settle at policy limits and the insurance companies declined.

"James [one of plaintiffs' attorneys] said the plaintiffs offered to settle the case before trial for the maximum coverage offered by insurance companies for the hospital and physician, but the insurance companies declined the offer. He would not specify how much such a settlement would have amounted to."

[no link, but in the Des Moines Register]
Dang. Poor read by legal team.

gut wrenching testimony about a baby, a jury is going to want somebody to pay.
 
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Tenacious E

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Absolutely. Just think how the doctor feels. She needs to hire her own attorney at this point. Her insurance company, and possible the attorney the company hired to represent her, absolutely screwed her.
You are talking out of your ass. How did her defense counsel screw her?
 

fredjr82

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“If the baby had been born by C-section between 3 and 3:45 p.m. the baby wouldn’t have any injuries,” James said.

That line would haunt me as a parent for the rest of my life. Shit would wake me up at 3AM.
 

pablow

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Okay, how did defense counsel "possibly" screw her?

The attorney hired by the insurance company certainly advised the insurance company to settle at at the limits or not to settle at the limits. Ultimately, the attorney hired by the insurance company is representing the doctor and must look after the doctor's interests. If the doctor's attorney advised the insurance company not to accept the plaintiff's offer to settle at the policy limits, she screwed up. This case is so aggravating that a this jury verdict should have been expected. Bottom line - the doctor should not have incurred any personal liability.

Now maybe the doctor didn't want to settle. But, the insurance company can settle at limits without the doctor's permission. So I don't think the doctor could be at fault here.

I'll bet this doctor has already retained different counsel to help her navigate this disaster.
 

ping72

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I always find these takes interesting when the lay public has an opinion on them. Several things:

1. No one ever carries this much insurance. For example, I pay into an insurance fund set up for the state of Kansas. I'm only insured up to 2.5 million.

2. Lawyers get 30% of the settlement.

3. Everyone assumes hospitals have deep pockets but they don't. That would cripple most small to medium hospitals if the insurance doesn't cover.

4. Most juries rule against the plaintiffs (doctors win) but when people hear stories about babies they immediately become sympathetic. I don't have any comments on the merits of this case or this personal story. It's a horrible tragedy either way. Sometimes this can be prevented but sometimes it just happens in medicine. Put yourself in the doctors shoes as well. Most are doing the best they can and now you have to live with the fact you're responsible for this child's future. It's a terrible feeling.

5. Crazy monetary awards like this stupid. They should be really based on care needs for the child when it comes to help, future medical visits, educational needs, home care, etc. Put yourself on the other end of it. Say you caused a bad car accident and are insured for 250K on your liability. Now you're personally responsible for all the other medical bills of the person involved.

6. It will be a while before the family sees any money and the suit will be incredibly reduced.

Having been on a jury for a case that resulted in a major payout, we very carefully deliberated and calculated what seemed fair.

I have no doubt the jury heard a fair amount of evidence presented from both sides calculating future medical expenses, likely care scenarios, life expectancy, etc. Also, the jury isn’t likely to go for the cheap estimate where the person ends up in a crappy facility getting bedsores.

I have no doubt that expected medical care for the next 60-80 years could be many many many millions.

This is tougher than paying someone’s medical bills from an accident because it’s all guesswork to future medical/care needs and trying to predict how long the kid will live. And then you’re estimating tangible loss to the family (quitting job, impact on future earnings, etc)... and that doesn’t even begin to add in the pain, suffering, and emotional damage awards (which in my case was a small fraction of award).
 
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Tenacious E

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The attorney hired by the insurance company certainly advised the insurance company to settle at at the limits or not to settle at the limits. Ultimately, the attorney hired by the insurance company is representing the doctor and must look after the doctor's interests. If the doctor's attorney advised the insurance company not to accept the plaintiff's offer to settle at the policy limits, she screwed up. This case is so aggravating that a this jury verdict should have been expected. Bottom line - the doctor should not have incurred any personal liability.

Now maybe the doctor didn't want to settle. But, the insurance company can settle at limits without the doctor's permission. So I don't think the doctor could be at fault here.

I'll bet this doctor has already retained different counsel to help her navigate this disaster.
There would be many dynamics at issue, which various "players" have control or no control over, including behavior of others, policy language, etc. You have no specific information about any of these dynamics. It seems reckless, if not smacking of libel, for you say that: "Her insurance company, and possible the attorney the company hired to represent her, absolutely screwed her."
 

Tfxchawk

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That is ridiculously excessive. The amount should be and needs to reduced dramatically.
 

pablow

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There would be many dynamics at issue, which various "players" have control or no control over, including behavior of others, policy language, etc. You have no specific information about any of these dynamics. It seems reckless, if not smacking of libel, for you say that: "Her insurance company, and possible the attorney the company hired to represent her, absolutely screwed her."

"Libel"? Really? Maybe I should get a lawyer.
 

cubsMDdmb

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The defense attorney likely had some type of influence to settle or not settle. Regardless, I’m shocked they were given the option to settle within insurance limits and didn’t.

The article listed makes it sound obvious that the obstetrician should have known the baby needed a c section. It’s often not obvious at all. There are times when it is obvious that this baby isn’t doing well and needs to be cut out and maybe that’s the case here. I don’t know. But there are a lot of times you play the waiting game and wait on the c section because the fetal strip is not great but not horrible either. Complications can and do happen even on routine c sections. I don’t have any information other than what has been shared in this thread but I bet there is a lot more to the story.
 
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Tenacious E

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The defense attorney likely had some type of influence to settle or not settle. Regardless, I’m shocked they were given the option to settle within insurance limits and didn’t.

The article listed makes it sound obvious that the obstetrician should have known the baby needed a c section. It’s often not obvious at all. There are times when it is obvious that this baby isn’t doing well and needs to be cut out and maybe that’s the case here. I don’t know. But there are a lot of times you play the waiting game and wait on the c section because the fetal strip is not great but not horrible either. Complications can and do happen even on routine c sections. I don’t have any information other than what has been shared in this thread but I bet there is a lot more to the story.
I think what happened was suction was applied after forceps were used, or vice versa.
 
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ping72

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That is ridiculously excessive. The amount should be and needs to reduced dramatically.
Please show me your researched calculations for all future care for this baby and other financial impacts on the parents, loss of income for the baby, and include projected inflation over the next 80 years. Then show your calculations for a fair sum for quality of life loss for child, parents, and siblings as well as pain, suffering, and other damages.

I’m not saying you’re wrong, I’m just saying I haven’t researched this enough to make any sort of assessment on the amount awarded.
 

Hawksbyamillion

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I think what happened was suction was applied after forceps were used, or vice versa.
You can do the vacuum after the forceps, which they did. You cannot do the forceps after the vacuum though. It really comes down to whether these were executed correctly, which the article doesn’t really say other than the fact the baby was injured from the forceps. Unfortunately stuff like that sometimes happens. A baby that was delivered via vacuum will always have a mark from where the vacuum was applied that can last up to a couple days for example.

It also largely depends how the baby looked on the monitor leading up to and while doing all of these interventions. With that said, hindsight is always 20/20 and the MD may have thought she could deliver the baby faster via forceps/vacuum than she could via cesarean at the time. Not saying there wasn’t negligence here, just saying outside of the jury’s verdict it’s difficult to determine given there’s not enough information provided in this article.
 

Tenacious E

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Please show me your researched calculations for all future care for this baby and other financial impacts on the parents, loss of income for the baby, and include projected inflation over the next 80 years. Then show your calculations for a fair sum for quality of life loss for child, parents, and siblings as well as pain, suffering, and other damages.

I’m not saying you’re wrong, I’m just saying I haven’t researched this enough to make any sort of assessment on the amount awarded.
I don't think the quibble is as much with the lifecare plan of $42.2M, although the parents will not actually have to pay that as it will be covered by governmental programs, but more as to lost earning capacity of $11.7M, and future loss of function of mind/body and pain/suffering at $41.4M. That does not even account for the past loss of function of mind/body and pain/suffering of $2.1M.
 

jasonrann

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This certainly can't help Iowa City Mercy's financial condition:

An Iowa City couple this week received a nearly $98 million civil verdict after suing Mercy Hospital in Iowa City after their newborn suffered permanent brain damage when health care providers “improperly used forceps and a vacuum, crushing the baby’s head” during delivery.


The infant’s parents, Andrew and Kathleen Kromphardt, brought the medical malpractice lawsuit against Mercy Hospital, Dr. Jill Goodman and OB-GYN Associates for negligence throughout her pregnancy, labor and birth in 2018.


The Johnson County jury’s verdict found the hospital and clinic were equally negligent and equally responsible for damages — future medical and custodial care, loss of future earning capacity, past and future pain and suffering, past loss and future loss of function of the mind and body — awarded to the plaintiffs. The jury awarded $97.4 million to the Kromphardts.


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Geoffrey Fieger, a nationally known personal injury lawyer in Southfield, Mich., Kromphardts’ lawyer, said in a statement this represents the “largest verdict” ever made in the state for a birth trauma case. Fieger, Matthew Patterson and Jack Beam in Chicago, Ill., and Fred James, a Des Moines lawyer, tried the 14-day trial, starting March 1 in Johnson County District Court.


Fieger has defended some nationally high profile clients, such as Dr. Jack Kevokian — convicted in 1999 for murder, who believed doctors should be allowed to assist patients with the right to die.


"The acts of malpractice committed by OB-GYN Associates of Iowa City and Mercy Hospital were egregious,” Fieger said in the statement. “As a result of their malpractice by improperly delivering a baby with forceps and a vacuum, and crushing his head, producing permanent brain damage. They not only destroyed the life of the little baby, Scotty, but his entire family who must care for him for the rest of his life."


The jury deliberated about 90 minutes last Friday following closing arguments. They returned a verdict about 3 p.m. Monday.


“Mercy Iowa City is disappointed in the verdict,” hospital officials said in a statement to The Gazette. “While we respect the legal process, we disagree with the jury's conclusion and will consider all available options. Our primary focus remains on providing high quality care to our patients and families.”


Cause of injuries​


James, the Des Moines lawyer, in a phone interview Tuesday said there were three main issues that resulted from treatment and caused the infant’s permanent injuries.


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Kathleen Kromphardt, 39 at the time, was admitted about 1 p.m. Aug. 11, 2018, with painful contractions. First, her baby was having difficulty tolerating labor. The baby was doing well until about 2 p.m. and started having fetal distress — fetus not receiving enough oxygen. Appropriate interventions were taken, which helped until 3 p.m. and then the fetal distress worsened.


James said a cesarean section should have been performed but wasn’t. The yet-unborn child suffered hypoxic brain injury — meaning the infant wasn’t receiving enough oxygen supplied to the brain. The second cause of injury was the use of forceps, which slipped off the baby’s head twice and resulted in a skull fracture above the left ear — causing brain damage.


The third issue was when health care providers used a vacuum, which was attached to the infant’s head to pulled out the baby, James said. There also was hemorrhaging in the brain.


“If the baby had been born by C-section between 3 and 3:45 p.m. the baby wouldn’t have any injuries,” James said.


After birth, the infant was transferred to the University of Iowa Hospitals and Clinics in Iowa City and diagnosed with ischemic brain injury, seizures, facial nerve palsy and skull fracture with subdural hemorrhage — caused by head injury, according to the lawsuit. The baby stayed in the newborn intensive care unit for 46 days and was discharged Sept. 26, 2018.


Now, the 3-year-old has cerebral palsy, a learning disability, can only stand and take steps with assistance, requires 24-hour care for the rest of his life and likely not be able to work, James said.


What happens now​


A verdict in a medical malpractice suit doesn’t mean the Kromphardts will receive the amount awarded by the jury — at least not any time soon, according to a legal expert. It may be a long road ahead for the family because now they will enter a new stage of litigation — post-trial motions.


Tim Semelroth, a Cedar Rapids lawyer who handles personal injury and medical malpractice cases, said post-trial motions can now be made by the defense. The award likely exceeds their insurance limits, he said, so the defense could ask for a “remittitur” from 6th Judicial District Judge Kevin McKeever, who was the trial judge. Such a motion means he would review the case and could reduce the verdict or grant a new trial.


If the judge finds the evidence doesn’t support the verdict, he may lower the award, Semelroth said. Or the judge could rule the jury made an error applying the law. But if the award is reduced, a plaintiff may not accept it and ask for a new trial.


The defense can also file an appeal, Semelroth said. In the meantime, the two sides could negotiate a settlement. Typically, if a settlement is reached, it wouldn’t be made public. A stipulation of the settlement would likely call for confidentiality.


Semelroth said the judge could take weeks or months to make a ruling. However, his ruling will be public.


An appeal also would be on the record, but could take months or years to conclude before the plaintiffs receive any money.


“It’s a long road before we know what is going to happen,” Semelroth said. “Ultimately, we don’t know what this family will receive or when they will receive it.”

Good.

Our son suffered a broken arm during c-section delivery in July of last year. We couldn't figure out why he absolutely screamed bloody murder when we changed him. Finally figured out at his two week appointment that his arm was broken. I cannot imagine dealing with a permanent brain injury. Ugh.