Dropped Baby leads to Birth Injury – Confidential mid seven-figure Settlement

The Birth Injury Case Facts:

Chloe was born at a rural medical center in Ohio. She was extremely premature, born at only 25 weeks gestation and weighing less than two pounds. Shortly after delivery, Chloe slipped from the arms of the obstetrical nurse and fell to the floor. Chloe was then sent by air ambulance to a hospital in Cleveland that has a neonatal intensive care unit. She remained in the NICU for almost four months and then was discharged home, where she lives with her mother and her older sister.

Chloe’s NICU course was complicated. She had a linear skull fracture that was caused by the fall in the delivery room. She also had several significant brain bleeds, which ultimately caused Chloe significant neurological impairment. Among other things, Chloe developed neonatal seizures and hydrocephalus (increased pressure in the brain caused by the buildup of cerebral spinal fluid). The hydrocephalus required placement of a shunt that drains the fluid from Chloe’s brain into her abdomen. Chloe also has significant motor and cognitive delay due to the damage her brain suffered from the brain bleeds.

Building Our Birth Injury Case

Chloe’s parents hired The Eisen Law Firm to assist with their medical malpractice case. Brian Eisen, lead attorney for the case, started working immediately on the case. In fact, when he started to work on it, Chloe’s injuries were not yet fully manifested. The initial investigation focused on obtaining all the medical records (which included more than 3,000 pages of records) and analyzing the relevant medical literature. Mr. Eisen reviewed several textbooks in neonatology and more than 30 primary journal articles.

The key issue was causation. Chloe’s extreme prematurity and very low birth weight put her at very high risk of developing a significant brain bleed irrespective of the fall she suffered at birth. In fact, the key literature demonstrated that approximately 45% of premature infants with birthweights comparable to Chloe’s suffer brain bleeds at birth.

Mr. Eisen consulted with and retained the services of multiple experts in an effort to determine whether Chloe’s injuries could be traced directly to the fall, rather than to her prematurity and birth weight. This included experts in pediatric neurology, pediatric neuroradiology, neonatology, and epidemiology. Experts were also consulted and retained in obstetrics and obstetrical nursing.

In the meantime, The Eisen Law Firm also began working up the damages aspect of the case, though the completion of this work necessarily had to wait, as Chloe was too young to be formally evaluated from a neuropsychological standpoint. Still, experts were identified and consulted in pediatric neuropsychology, pediatric neurology, and life care planning.

Moving Our Birth Injury Case to Trial: Part I

As the two-year anniversary of Chloe’s birth approached, it was still too early to file suit on Chloe’s behalf. Chloe’s mother, however, had a viable cause of action for negligent infliction of emotional distress. Because the statute of limitations for that separate cause of action was nearing expiration, Mr. Eisen made the decision to file that suit. This allowed preservation and prosecution of the mother’s claim. It also provided an opportunity for Mr. Eisen to obtain information that would be used in furtherance of Chloe’s claim without prematurely filing that claim.

The mother’s claim for negligent infliction of emotional distress was settled for a confidential sum. Chloe’s claim (and the claims of her parents and sister for loss of consortium were specifically exempted from the release executed in connection with the settlement.) The negligent infliction lawsuit proved useful in terms of strategy going forward for Chloe’s case, as it enabled preliminary discussions about the facts of the case and about Chloe’s injuries and damages.

Our Birth Injury Case: Part II

Mr. Eisen continued to work on Chloe’s case after the conclusion of the initial settlement. Among other things, he and defense counsel agreed to conduct preliminary, initial discovery related to Chloe’s care and treatment. This included discovery of vast amounts of medical record documentation.

In addition, Mr. Eisen consulted with 17 liability and damage experts, including multiple pediatric neurologists, a pediatric neuroradiologist, three neonatologists, an obstetrician, a nursing fall expert, a life care planner, a physical medicine and rehabilitation expert, an economist, and others.

Ultimately, Mr. Eisen selected an out-of-state pediatric neurologist and arranged for Chloe and her mother to travel by airplane to see that neurologist for a comprehensive examination and evaluation. Several months later, Mr. Eisen arranged to have Chloe travel to another out-of-state location for testing and evaluation by a physical medicine and rehabilitation expert who also prepares life care plans and vocational rehabilitation opinions.

Our Birth Injury Case: Mediation and Settlement

Although Chloe’s suit was never officially filed, the parties worked on “litigating” it (outside of court) for nearly two years, after which a mediation was scheduled. That mediation did not result in a settlement right away. However, after some additional negotiations, The Eisen Law Firm was able to secure a confidential, mid-seven-figure settlement, which will enable Chloe to receive the care she will need for the rest of her life.