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Managing Partner Bradley S. Zimmerman and Partner Christopher Nyberg settled a highly contested case concerning a brain damaged infant during a mediation on Zoom. The case involved the delivery of a full-term infant after Mom endured an exhausting 45 hours of labor. During labor, Mom suffered from hyperstimulation of her uterus and excessive contractions which resulted in a reduced oxygen reserve to the baby. As a result, this caused the child to become hypoxic (deficiency in oxygen reaching the tissues) intermittingly during labor. The combination of the depleted oxygen and the continued trauma of the ongoing delivery eventually caused the blood vessels in the infant’s brain to weaken ultimately causing a brain hemorrhage and stroke. The infant unfortunately continues to demonstrate significant cognitive delays and may never be able to have a job or function independently.
During the course of discovery, it was revealed that the hospital had mistakenly purged the fetal heart monitoring strips which would have been crucial to proving negligence. Our team was preparing a motion to strike the answer of the defendant or in the alternative seeking a negative inference jury charge at trial for the destruction of the vital fetal heart monitoring strips.
In opposition, defendants had always maintained that the injury to the infant’s brain did not result from hypoxia or trauma as there were no specific neonatal markers to support that modality of injury. Specifically, the defendant pointed to the APGAR scores at birth which were completely normal, 8 at 1 minute and 9 at 5 minutes; the cord pH levels of the baby were normal, and the neuroimaging demonstrated a bleed to only one side of the brain undermining our claim of hypoxia where there would be diffuse injury to both sides of the brain. In sum, the defendants claimed the cause of the injury was idiopathic (without a known cause) and would have filed a motion claiming there was no recognized theory in the medical literature and community to support causation requesting the court to dismiss the action.
Rather than going through an expensive and lengthy litigation, the parties agreed to try and resolve the case through mediation. Brad and Christopher were able to obtain an excellent result of over $4.4 million for the client through this process, and the infant will be entered into the Medical Indemnity Fund where all of the infant’s medical needs will be taken care of for the remainder of the child’s life. We think that this is a just and appropriate result for this family who has gone through so much trauma.
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