Dana was already into her 30s when she and her husband John decided they wanted to start a family. Two years later, in January 2017, Dana gave birth to their first child, a girl who they named Lilly. Lilly was perfectly healthy, but Dana had encountered some difficulties towards the end of her pregnancy. Shortly before her due date, Dana was diagnosed with chorioamnionitis, which is an infection in the amniotic fluid and fetal membranes. Dana attempted to deliver Lilly vaginally, but her labor stalled and the doctors ended up doing a C-section.
Less than 6 months after giving birth to Lilly, Dana was pregnant again. Dana’s health insurance had changed so she had to start going to a new OB/GYN practice called Waverly Obstetrics. It was a much smaller practice with just 3 doctors. Dr. Waverly and Dr. Chattam were the primary partners and they had a younger associate, Dr. Dutton. There were also several Certified Nurse-Practitioners and a Nurse-Midwife who handled most of the in-office, pre-natal appointments.
At one of her very first pre-natal care visits, Dana met with Dr. Waverly. Dr. Waverly noted that because Dana had just had a C-section with Lilly earlier that year, she would probably need to have another C-section with this baby. Dana told Dr. Waverly that she was okay with that. In fact, Dana preferred to have another C-section after her last experience with Lilly. Dana was given a due date of January 15, 2018, exactly 1 year to the day after she gave birth to Lilly.
In November, about 6 months into her pregnancy, Dana had a prenatal care visit at Waverly with the Nurse-Midwife, Barbara Fuller. Nurse Fuller told Dana that she was a viable candidate for a VBAC (vaginal birth after cesarean). Dana was reluctant to even consider the idea at first, but Nurse Fuller persuaded Dana that it would be safe and she would be glad she did it. Nurse Fuller provided Dana a “VBAC consent form” which stated, among other things, that “60-80% of women who undergo a VBAC will successfully deliver vaginally.”
Based on her meeting with Nurse Fuller, and the information in the VBAC consent form, Dana agreed to change her planned method of delivery from a planned C-Section to a VBAC. Unfortunately, Dana did not realize that Nurse Fuller’s representations about the safety of VBAC were not accurate, at least in Dana’s particular case. While VBAC may have a 60-80% success rate in most women , Dana had certain elevated risk factors (small size, prior delayed labor, short inter-pregnancy interval) which made a VBAC much higher risk.
Dana went into labor 5 days after her due date and she and John went to the hospital expecting to be admitted for delivery right away. Instead of being taken back to a delivery room immediately, Dana was sent to the staging room and hooked up to electronic fetal monitoring (EFM) devices that tracked her contractions and the baby’s heart rate in response to those contractions. For the first 10 minutes, the EFM showed that the baby’s fetal heart rate tracings were normal. After just 30 minutes, however, the EFM tracings became very concerning suggesting that the baby might not be getting enough oxygen.
Instead of admitting Dana back to the delivery ward right away, the intake nurses took her off the fetal monitoring equipment and told her to come back in 1 hour. Dana and John reported back, and the intake nurses hooked her up to the EFT devices for another 30-minute assessment. Once again, the fetal heart patterns are concerning, but the intake staff tells Dana she’s not quite ready and send her back to the waiting area. Finally, after another hour passes, Dana is admitted back to the delivery unit.
Dana is admitted to the delivery ward just a Nurse Fuller begins her shift and assumes primary responsibility for Dana. The concerning heart rate patterns on the EFT continued and went unnoticed or ignored for another 45 minutes after Dana was admitted. When Dana sat up for placement of an epidural, the EHT tracings suddenly got worse and showed signs of fetal bradycardia. Over the next 8 minutes, the baby’s heart rate dropped to a dangerously low 60 beats per minute.
It was at this point that Nurse Fuller and the delivery team sounded the alarm. 2 doctors came into the room and almost immediately called for an emergency C-section. Dana is rushed into a nearby operating room, and 28 minutes later her baby is delivered by C-section. John and Dana immediately realized something was wrong as a team of several doctors rapidly flew into action and started doing what looked like infant CPR. One of the nurses tried her best to reassure Dana, but the reality of the situation was obvious from the way everyone was acting.
Dana had given birth to a son, Adam, but he was barely alive when doctors removed him from the womb. Adam was completely limp, had no pulse, and was not breathing. The doctors were able to resuscitate Adam, and he was transported to another hospital with a Neonatal Intensive Care Unit (NICU). Adam had been without oxygen for a prolonged time before he was born. As a result, Adam had suffered severe and extensive damage to his brain. He spent 25-days in the NICU where doctors attempted an experimental type of treatment called neonatal brain cooling therapy. All Dana and John could do was visit everyday and hope for the best.
When Adam was eventually sent home from the NICU, he was given a formal diagnosis of hypoxic ischemic encephalopathy (HIE) and perinatal asphyxia. The doctors told Dana and John that Adam was not going to be normal and would likely have physical and mental disabilities. It was too early to say exactly how extensive they would be. Dana and John were crushed by this news. While Adam was in the NICU, the doctors had been reluctant to give Dana and John any sort of long-term prognosis. They told them that he had a brain injury and explained what it could mean, but they usually said it was too early to say exactly what Adam’s life would be like. So when they got the final prognosis, it was heartbreaking.
Over the next 12 months, Dana spent half her time dragging Lilly around to various doctor’s appointments for Adam. Shortly after Adam’s 1st birthday, he was formally diagnosed with spastic quadriplegic cerebral palsy. This is one of the most severe subtypes of cerebral palsy that impacts the entire body from the neck down. Adam would never be able to walk on his own. He would never be able to dress or feed himself and he may not even be able to talk normally. Adam was going to require intensive care and support around the clock for the rest of his life.
Dana and John felt like the hospital intake staff and Nurse Fuller were responsible for what happened to Adam. At first, they didn’t fully understand Adam’s condition. They thought it might have been something genetic that they gave to Adam. Eventually, however, Dana and John learned that Adam’s condition had nothing to do with genetics or inheritance. Adam was born with cerebral palsy because his brain had been deprived of oxygen for a long time during Dana’s labor.
Once they understood this, John and Dana immediately focused their blame on the intake staff at the hospital. They vividly remembered how the intake nurses had made them wait for 2 hours before admitting Dana back to the delivery ward. John couldn’t help but think that Adam was starving for oxygen inside the womb while Dana was being told she wasn’t ready and forced to walk around the hospital in pain.
John and Dana felt an overwhelming urge to hold someone accountable for what happened to their son and the hospital staff became the focal point of this. Dana had joined a cerebral palsy support group, and she heard from one of the other parents how they had sued the doctors and hospital for negligently causing their child’s injuries. After hearing this, Dana and John started looking online for medical malpractice lawyers. They learned that birth injury lawyers are attorneys who specialize in birth injury malpractice cases.
John and Dana researched several law firms that handle birth injury cases and specifically cases involving cerebral palsy. One of the firms had a lot of information on their website that applied specifically to what happened to Adam. They had a page about HIE and explaining the various ways in which negligent medical care and hospital policies can result in oxygen deprivation. John and Dana filled out an online contact form on this firm’s website. The very next morning one of the firm’s lawyers called them back about their case.
The following week, Dana and John went downtown to meet with the lawyer at his office for an initial consultation. They told him again the story of what happened to them at the hospital, with most of their blame being focused on the hospital admission staff. The lawyer told them that they might have a viable malpractice case. John and Dana signed a retainer agreement in which the lawyer and his firm agreed to represent them on a contingency fee basis. John and Dana would not have to pay anything and the lawyers would receive 33-40% of any money they won in the case.
After signing the retainer agreement, John and Dana also signed a number of forms authorizing the lawyer to obtain copies of medical records from all of Dana’s and Adam’s medical providers. The lawyer explained that once they collected all of the medical records, they would review them and identify possible malpractice claims. It took almost 2 months for the lawyer to get all the medical records.
After reviewing the medical records, the lawyer called Dana and John and told them there was definitely evidence to support their claims that the hospital intake nurses were negligent in making them wait. The lawyer also told them that Dana had suffered a uterine rupture. At some point, after they arrived at the hospital, Dana’s uterus wall began to tear open along the site of her prior C-section scar. The lawyer explained that a uterine rupture is one of the most dangerous delivery complications and the rupture and delayed reaction is what ultimately caused Adam to be deprived of oxygen before he was born.
This news came as a total shock because it was the first time Dana and John had heard anything about a uterine rupture. They felt outraged that none of the doctors or nurses ever told them that this had happened. The lawyer explained that this shifted a lot of the blame from the hospital to Nurse Fuller and the Waverly Obstetrics practice. The lawyer told Dana that Nurse Fuller should have never talked her into attempting a VBAC only 1 year after her prior C-section and considering her other risk factors. If Dana had simply had a scheduled C-section on her due date (as originally planned) none of this would have ever happened, and Adam would have been born normal and healthy.
After their phone call with the lawyer, Dana and John thought that they would be filing a lawsuit right away. Unfortunately, the lawyer explained that filing a medical malpractice lawsuit was a bit more complicated. To file a malpractice case, they needed to get affidavits from qualified expert witnesses saying that they reviewed the records in the case and that medical malpractice occurred. In other words, they needed another OB/GYN to support their case in writing.
It took almost 3 months for this to happen, but the lawyer eventually called John to let him know that they had all the required expert certifications and the case was getting filed that day. The case named a number of different defendants, including the hospital, Dr. Waverly and his practice, Nurse Fuller and 2 other nurses that Dana and had never even heard of.
After the case was filed things seemed to move very slowly. It was months before Dana and John heard anything at all from the lawyer. About 8 months after the case was filed John and Dana had their depositions taken. The depositions were stressful and very emotional, especially for Dana, but all of the defense lawyers were very nice. After their depositions, John and Dana went to lunch with the lawyer and his associate and talked at length about the status of the case. The lawyer told them that they needed to take a few more expert witness depositions over the next few months. The trial date was set for August of the following year.
John and Dana had always hoped that the case would settle so they could avoid the time and stress of going to trial. But as the trial date approached the lawyer told them that a settlement did not seem likely. The hospital was insisting that the doctors were at-fault and the doctors were claiming that they did nothing wrong. The trial began in the first week of August and John and Dana were in the courtroom every day. After listening to 3 days of testimony from various expert witnesses in support of their case, both Dana and John took the stand on Thursday.
The judge gave a 1-day break on Friday and the trial resumed on Monday with testimony from the defense experts. The defense experts included an OB/GYN, a Nurse Midwife, and several other medical experts. At the end of the trial, John and Dana didn’t know what to expect, but their lawyer was very optimistic. The trial ended Wednesday afternoon. By Friday afternoon the jury had returned a verdict.
The jury found that both the hospital defendants and the OB/GYN defendants were equally liable for Adam’s injuries. They awarded a total of $15,800,000 in damages. The lawyer got a 40% contingency, plus his expenses (which were almost $200,000), so John and Dana ended up with just over $9,000,000. The money didn’t do anything to help Adam’s condition, but it gave John and Dana the financial resources to give Adam the best care and the best possible life he could have. It also gave John and Dana the closure and feeling of justice that they desperately needed.