Medical Negligence / Obstetrics / Settlement

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Medical Negligence / Obstetrics / Settlement

NCATL Around the State Magazine

Summer 1998


Copyright © 1998 by North Carolina Academy of Trial Lawyers

Medical Negligence/Obstetrics/Settlement

Wade Byrd of Fayetteville and Marc Shar of Baltimore report a settlement in a medical negligence case in Maryland involving a child who suffered profound injuries at birth. During labor, large amounts of meconium were present, indicating possible fetal distress. In the last 45 minutes of labor, the fetal monitoring strip demonstrated severe heart rate decelerations, down 60-70 beats per minute over a two-minute period. The baby was born severely depressed. The facility lacked adequate personnel to conduct an effective resuscitation. There was a substantial delay in achieving an airway. When the oxygen was finally turned on, there was no oxygen in the tanks, causing further delay. The child’s injuries include mental retardation and cerebral palsy.
The parents and guardian ad litem sued the hospital. Plaintiffs enlisted the help of experts in neonatal-perinatal medicine and pediatrics/anesthesia. The parties reached a settlement during a mediation with all the parties but without a mediator. Plaintiffs’ counsel believes the hospital’s failure to have oxygen in the tanks, while not contributing significantly to the injuries, was very embarrassing to the hospital and perhaps motivated the settlement.

Medical Malpractice/Failure to Diagnose Kidney Failure/Settlement
David M. Clark and John F. Bloss of Greensboro report a confidential settlement in a medical malpractice case involving failure of a physician to diagnose and treat plaintiff’s kidney disease. The defendant family practitioner began seeing the 41-year-old warehouse receiving clerk in 1987. At that time, plaintiff presented with symptoms indicating possible renal complications. The symptoms continued unabated in subsequent visits but were neither treated nor disclosed by the physician.
In 1993, defendant conducted tests revealing a creatinine level of 7.4-well outside the reference range of 0.5 to 1.2 and indicating renal dysfunction-but defendant again failed to inform plaintiff or otherwise treat his condition. Fifteen months later, plaintiff was admitted to the hospital with a heart attack and end-stage renal failure. He required dialysis twice a week, and at the time of mediation, his medical expenses were estimated at over $300,000.
Suit was brought against the doctor and his practice, alleging the defendant physician had failed to adequately monitor, diagnose, and treat plaintiff’s developing kidney disease. Defendants contended plaintiff’s kidney disease was irreversible and plaintiff would have eventually suffered end-stage renal failure regardless of treatment. Plaintiff was prepared to present expert testimony from physicians specializing in general practice, nephrology, and cardiology who would have testified that the heart attack could have been prevented and the end-stage renal failure avoided, or at least postponed for many years, if plaintiff had been advised and treated for his condition.
The parties settled after a mediation conducted by Andy Little. The plaintiff subsequently underwent a successful kidney transplant and no longer requires dialysis.

Vehicular Negligence/Underinsured Motorist Insurance/Settlement
C. Michael Wilson of Charlotte reports a settlement in a case against a defendant driver and plaintiff’s underinsured motorist carrier. Plaintiff, a 25-year-old waitress, was a passenger in defendant friend’s car traveling northbound on Interstate 95 in Florida. When a tractor-trailer passed, the defendant driver lost control and the vehicle left the roadway, crossed the median, hit the guardrail, and rolled into the southbound lanes. Plaintiff was thrown from the vehicle and slid, coming to rest in a southbound lane. She suffered tibia and fibula fractures; a concussion; a scalp hematoma; severe abrasion burns to her leg, back, and buttocks that left permanent scarring; spinal sprain injuries requiring fixation surgery and resulting in myofascial pain disorder; and depression and post-traumatic stress disorder. Her medical expenses were about $59,000, and she claimed about $10,500 in lost wages. She sued the driver of the car in which she had been riding, alleging failure to control the vehicle. She also made a claim under her underinsured motorist policy. After the accident, plaintiff married and had a child. She contended her injuries adversely affected her pregnancy and child care capabilities.
Defendant contended wind produced by the passing tractor-trailer had created a sudden emergency. Moreover, defendant claimed plaintiff had been negligent in failing to wear her seatbelt, which she had been adjusting at the time of the accident.
Although suit was filed in Mecklenburg County, Florida law-and comparative rather than contributory negligence-would apply. The parties settled at mediation, with the underinsured motorist carrier paying about 90 percent of the funds.

Premises/Trip and Fall/Settlement
Gary H. Clemmons of New Bern reports a settlement in a trip and fall case involving a Federal Express delivery person. The 42-year-old courier was making a delivery at defendant’s strip mall. When she exited her van, she stepped on an exposed water main, causing her left foot to turn outward. She suffered a trimalleolar fracture, and her medical expenses were about $19,000. She sued the landowner, alleging the property was in a dangerous condition. In addition to an economist, plaintiff retained an asphalt expert and a human factors/engineering expert.
Defendant claimed that plaintiff had been a licensee-not an invitee-and also that she had been contributorily negligent. In addition to the settlement, Judge Regan of the Craven County Superior Court reduced a $68,000 workers’ compensation lien to $20,750 under NCGS § 97-10.2.

Vehicular Negligence/Fractures/Settlement
C. Michael Wilson of Charlotte and Sean Coburn and Chris Nichols, both of Spartanburg, SC, report a structured settlement in a vehicular negligence case involving an 85-year-old widow. She was a passenger in a car when defendant’s truck allegedly exited a business driveway in front of her vehicle. She suffered a severe brachial plexus injury to her right shoulder and arm, left and right hip fractures, a traumatic blow to the forehead, and a large hiatal hernia requiring emergency surgery to rule out the possibility of a diaphragm rupture. She has permanent partial disability ratings of 60 percent to the right upper extremity, 15 percent to the right hip, and 10 percent to the left hip. Her medical expenses totaled about $180,000. She sued the defendant driver for vehicular negligence. In addition to all the medical providers, plaintiff’s experts included police, a psychological expert, and a gastroenterologist regarding causation of internal injuries. At the time of mediation, plaintiff, 87, had a short life expectancy, used a wheelchair, and required nursing care. Plaintiff’s counsel presented large amounts of evidence on plaintiff’s prior life, her vigor and vitality, and the severe physical and emotional trauma she endured because of the accident. Counsel utilized video settlement techniques and conducted jury analysis in the county. The case required significant discussions and counseling with plaintiff and her family, and balancing plaintiff’s immediate need of funds against methods of maximizing her recovery. The parties structured a settlement, with about 65 percent of the present value in cash.

Premises/Falling Merchandise/Settlement
Robert C. Dodge of Beaufort, NC, reports a settlement in a case against Wal-Mart Stores involving falling merchandise. Plaintiff, a 33-year-old community college student, was shopping at the Morehead City Wal-Mart store. A portable dog pen display constructed of galvanized poles and chain-link fence fell from an overhead shelf and struck her in the head. She suffered a mild traumatic brain injury with permanent cognitive dysfunction characterized by short-term memory deficit, loss of concentration, and easy distractibility. CT and EEG testing were both negative. Although neurological testing revealed the aforementioned cognitive deficits, it concluded they were not significant. Plaintiff’s medical expenses totaled about $12,400. She sued Wal-Mart in U.S. district court, alleging the premises had not been in a reasonably safe condition.
The case was complicated by causation issues. Plaintiff had received extensive psychotherapy before the incident for various symptoms, many of which mimicked the brain injury symptoms. At mediation, plaintiff’s counsel brought as much evidence in to contrast what plaintiff was like before the accident versus what she was like afterward. Narrative reports from plaintiff’s psychotherapist, psychiatrist, and internal medicine physician were presented, as well as testimony from the plaintiff’s JOBS Program Social Worker. The parties settled at mediation conducted by the Honorable Magistrate Judge Wallace W. Dixon.

Vehicular Negligence/Head and Spine Injuries/Settlement
C. Michael Wilson of Charlotte reports a settlement in an automobile accident case involving a 35-year-old single business manager. The defendant’s truck allegedly crossed the centerline and hit the plaintiff’s vehicle. She suffered a scalping head laceration, concussion, fibromyalgia secondary to cervical and thoracic spine injuries, and second degree burns to her wrist. She has permanent numbness in her right hand, and she received a 10 percent permanent disability rating to her whole body. Her medical expenses were about $30,400, and she incurred some wage loss. She sued the truck owner, alleging the driver had negligently crossed the centerline. Suit was complicated by the fact that plaintiff had multiple sclerosis before the accident. Defendant hired an expert on multiple sclerosis who claimed plaintiff’s symptoms were not caused by the accident. Plaintiff retained experts on fibromyalgia and multiple sclerosis, as well as the police and all medical providers. The parties settled at mediation.
1998 WL 34002834 (NCATL)

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