Missouri Obstetrical Settlement, VBAC-Pitocin $6.4 Million

still evident three days later. The C.T. scan documented evidence of swelling of the child's brain over the first three days of life.

Following delivery, the child's care was transferred to defendant family practitioner, who had responsibility for the newborn pediatric care. He failed to recognize an abnormal condition known as polycythemia and failed to initiate treatment to decrease the risk of neurologic injury. Polycythemia is an abnormally high number of red blood cells which has the effect of thickening or "sludging" the blood, increasing the risk of clotting due to this hyperviscosity. The pediatrician failed to diagnose the polycythemia despite laboratory evidence documenting its presence. The standing order at the hospital required that nurses determine the hematocrit

level by heel stick within six hours of birth, and that they contact the physician if the value is greater than 60 or less than 40. The hematocrit would then be rechecked from a central venous source. If polycythemia is confirmed, a partial exchange transfusion may be performed to dilute and reduce the hyperviscosity of the blood.

The pediatrician was notified that the first heel stick hematocrit was 72.9, but he simply decided to disregard the whole issue because in his experience the central venous hematocrit was always lower than the heel stick. He was not thinking in terms of polycythemia and he did not alert the nursing staff to be on the lookout for clinical signs and symptoms of polycythemia, which can be subtle. The combination of the bleeding and

swelling from the trauma, and the hyperviscosity from the polycythemia, combined to produce the neurologic injury.

The majority of the fault in the case was on the obstetrician, who had previously declared bankruptcy and who claimed to have $800,000 in insurance coverage (see Insurance Aticle, page 6). The pediatrician had a $1,000,000 policy, and no significant personal assets. The case was settled shortly before trial for $1,600,000, including the full $1,000,000 paid on behalf of the obstetrician.

Due to the brain injury, our client suffered left-sided hemiparesis, borderline mental retardation, some moderate speech deficits, and has an ongoing seizure disorder. The settlement is being used to fund an intensive physical and occupational therapy program.

After a disappointingly low verdict for an injured minor a number of years ago, we learned in post trial interviews with the jurors that the verdict would have been higher but for their concern that any monies awarded to the child would be improperly appropriated to the use of the parents. Since then, in all cases on behalf of minors, before trial, we obtain the appointment of a corporate conservator, such as a bank trust department, and seek the amendment of the Petition or Complaint to reflect that appointment. Then, during jury selection, we try to have the bank's trust officer in the courtroom to be introduced to the jury as the nominal plaintiff, along with an explanation of what a conservator is, emphasizing the fact that, in the event the jury should award money to the minor, that money will be in the control of the bank, under the supervision of the court, and used only for the benefit of the minor, exclusive of normal parental obligations. This completely eliminates the distracting concern that the jury might have about what will become of money they award to the minor.