NEW HAMPSHIRE TRIAL LAWYERS ASSOCIATION VERDICTS AND SETTLEMENT REPORT

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P.O. BOX 447

CONCORD, NH  03301

 

Plaintiff’s Attorney:  Kenneth C. Brown, Esq. and Kevin F. Dugan, Esq.

Case Title:    Anonymous v. Anonymous

Court:     Confidential Date of Injury: 2001

 

Liability Facts:          This is a medical-negligence suit arising from the mismanagement of a pregnancy resulting in a left brachial plexus injury at birth.  As a result, the minor plaintiff suffers from Erb’s palsy.  Erb’s palsy is a specific form of brachial plexus palsy that reflects injury to the upper trunk resulting in weakness of the biceps, paralysis of the external rotator of the shoulder, as well as injury to the deltoid and wrist.

 

Plaintiff:  Sex:M    Age at time of injury: birth injury 

 

Plaintiff’s Theory of Liability         The plaintiff ‘s mother was admitted to the hospital for induction at 39 weeks secondary to a large-for-gestational-age fetus.  The defendant noted her insulin-dependent gestational diabetes mellitus status and her previous history of delivering a child who suffered Erb’s palsy due to shoulder dystocia.  The defendant documented there was some concern for another episode of shoulder dystocia.  The infant’s fetal weight estimate was 8 pounds.

 

Pitocin induction was initiated and the mother progressed to full cervical dilation at 1550.  The baby was delivered at 1558.  Shoulder dystocia was encountered.  The baby’s birth weight was 9 pounds, 4 ounces (4190 grams).  He was discharged four days after birth with a diagnosis of left brachial plexus injury (Erb’s palsy).

 

A caesarian section was never offered nor advised by the defendant.  The defendant  knew the history of the mother’s delivering a child who suffered from Erb’s palsy as a result of shoulder dystocia and that the mother suffered from gestational diabetes.   Tests suggested that the minor plaintiff was a large baby.  With the above, the risks of a shoulder dystocia occurring were significant; thus, a caesarian section should have been offered and strongly advised.  However the defendant failed to do so.

 

Defendant’s Theory of Defense:    The defendant denies any negligence and maintains the care provided complied in all respects with the standard of reasonable medical care.  There are no risk factors (including a history of prior shoulder dystocia and/or gestational diabetes) which can accurately predict shoulder dystocia.  The presence of such risk factors, therefore, does not require a planned cesarean section in the absence of fetal macrosomia.    The estimated fetal weight of 8 lbs. is below the threshold of fetal macrosomia and less than the patient’s prior delivery of 8 lbs. 8 oz.   Induction and a trial of labor with vaginal delivery was entirely appropriate.    The medical records reflect that the risk of shoulder dystocia and the possibility for a cesarean section were identified and discussed with the patient.

 

Injuries:  (Diagnosis/Prognosis/Permanency):   The minor child suffers from a serious and permanent condition and he will continue to suffer physical pain, injury, disability, emotional distress, and loss of enjoyment of life, lost earnings and earning capacity.  He will also continue to incur life-long medical expenses and costs associated with his birth injury.

 

VERDICT/SETTLEMENT: Case settled at private mediation for confidential amount.

 

COUNSEL:   Kenneth C. Brown, Esq.

Kevin F. Dugan, Esq.

ABRAMSON, BROWN & DUGAN

1819 Elm Street

Manchester, NH 03104

(603) 627-1819

Counsel for the Plaintiff

Mark Abramson
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