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           A Pennsylvania jury awarded $100,000,000 to a minor for injuries she suffered around the time of her premature birth.  The plaintiff was born 26 weeks gestation and suffered from patent ductus arteriosies.  Despite this condition, the apgars at birth were at one minute 3 and 7 at five minutes.

            A cardiac surgeon attempted to close the duct, but the surgery was unsuccessful.  The plaintiff alleged that during the surgery, the phrenic nerve was damaged.  This they claimed, caused the child to require prolonged ventilator support, which caused damage to the child's lungs, resulting in oxygen deprivation.  As a result, the child suffered irreparable brain damage.  The plaintiff claimed that the surgeon's inability to close the duct was related to the fact that he had not performed this surgery in over five years.  The plaintiff's claimed that the child should have been transferred to another facility with more experienced surgeons.  Unfortunately, following a second procedure when the duct was successfully closed, the child's arm required amputation allegedly due to a catheter being left in place after difficulty in blood draining was noted.  They alleged that the failure of the physician caring for the child to act more definitively resulted in the ischemia and death of tissue that required amputation.  Not surprisingly, this series of events led to the original surgeon being sued.  Also the neurologists and hospital who cared for the child prior to the amputation were sued.  At trial the cardiac surgeon argued that the child's brain damage was the result of her premature birth.  The plaintiff countered that apgars of 3 and 7 were not consistent with this.  The neurologists asserted that their approach not to rush into surgery was reasonable under the circumstances.  The jury found for the plaintiff's, awarding $100,000,000.  The defendant's filed motions overturn or reduce the verdict.

            There are several aspects of this case which might have inflamed a jury.  The fact that the cardiac surgeon had not performed the surgery for five years would raise issues of why he choose to proceed.  This would not amount to negligence per se but would require detailed explanation of his other surgeries performed and why he remained competent to do this procedure.  If not convincing, the jury might be concerned that the motivation of money had caused the surgery to be performed prematurely and not competently.  In the neurologists case, the medical records were somewhat lacking in support of their testimony that they knowingly decided to wait before surgical intervention.  Without rather explicit notes detailing their thought process prior to the amputation, the jury might have found the explanation to be disingenuous and created for the litigation.  This would drive their willingness to issue a large award.  Detailed notes in the medical records would have helped to defend these cases.  Juries seem to understand that medicine is fraught with difficult choices, particularly when caring for a critically ill infant.  Notes that indicate that: (1.) the physician was aware of and considered the various alternatives and  (2.) that the decision arrived at was well grounded in thoughtful, knowledgeable and caring analysis, is the best defense to a case where the outcome , as here, is not the one desired.

Injuries from Premature Birth 

by Attorney Frank E. Reardon

December 2002