Settlement: $9,000,000
Plaintiff Attorney: Bruce G. Fagel, Thomas S. Alch, Law Offices of Bruce G. Fagel & Associates, Beverly Hills, Cal. Defense Attorney – Leo Schuering, Schuering, Zimmerman &Doyle, Sacramento.
Facts: Plaintiff, Leah Gumb, now 20 months old, suffered an anoxic brain injury as a result of a delay in delivery by c-section on Oct. 14, 2011. Plaintiff’s mother received her prenatal care at UC-Davis Medical Center without any problems or complications. At 41 weeks, on Oct. 11, 2011, she had an NST and AFI which were normal. She then entered the hospital on Oct. 14, at 6:54 AM in early labor. The mother gave the nurses a birth plan which included a desire for a vaginal birth. At 9:33 AM, the vaginal exam showed 6.5 cm/90%/-1 with a Category I fetal monitor tracing. After an epidural was placed at 10:51 AM, the fetal monitor began to show late decelerations. At 12:46 PM, there was a prolonged deceleration and the vaginal exam showed 8 cm/90%/-1. At 1:17 PM the chief ob resident had the mother sign a consent for a c-section. After another prolonged deceleration the mother was moved to the OR at 1:59 PM. At 2:10 PM, the resident ruptured the membranes which showed clear fluid. The high risk OB, Dr. Kim arrived in the OR at 3:00 PM and decided that the fetus was stable and after a vaginal exam which showed 9 cm/100%/0 Dr. Kim decided to start pitocin but kept the mother in the OR. At 4:27 PM, the vaginal exam showed 9.5 cm/100%/0 and pitocin was increased. At 5:30 PM there was a change in obstetrical coverage and the on-coming OB was told that the patient “adamantly does not want a c-section.” At 5:58 PM, plaintiff’s mother was now at 10 cm dilation and the nurse instructed her to start pushing, while still on the OR table. At 6:20 PM, high-risk obstetrician Dr. Nina Boe arrived and despite evidence of deep variable decelerations, and further decrease in variability a vaginal delivery did not occur until 8:19 PM. Apgar scores were 2, 4, 6 with a cord blood gas pH 7.21, BE -10. The plaintiff was diagnosed with hypoxic-ischemic encephaolopathy and was given brain cooling.
Injury: Cerebral palsy
Special Damages: All past care costs were paid for by the mother’s health. insurance through UC Davis, where the mother works as an Assistant Professor Plaintiff’s contentions: Defendants were negligent for not recognizing fetal distress and did not proceed to an earlier c-section which would have prevented the hypoxic-ischemic injury, most of which occurred in the last hour before delivery.
Defendant’s contentions: All care was within standard since plaintiff’s mother did not want a c-section, it was appropriate to attempt a vaginal delivery. Life expectancy of the minor plaintiff limited to 5 additional years. Settlement discussions: Plaintiff demand $15 million, Offer $5 million. Excess carrier then involved with offer increased to $9 million. Insurer – Regents self insured to $5 million, Excess with Lloyds of London.
