Saturday, November 16, 1991
MOTHER OKS $5 MILLION SETTLEMENT - SON CAN'T WAIT FOR APPEALS TO BE FINISHED TO START TREATMENT, SHE SAYS.
A woman gave up as much as $8 million of a Jackson County court verdict for her brain-damaged son Friday. Then she said it was the right choice.
Luanne Jones of Roeland Park said her 4-year-old son, Devin, needed money now for treatment and couldn't wait for the court fight to play out.
According to testimony in the medical negligence case, Devin's Caesarean delivery came too late. A doctor had missed unusual warning signs that the Johnson County infant's blood was seeping into the womb.
"Getting the money four years after the injury seems unfair to me," she said. "Nobody won here."
Jones said Friday she knew jurors would award her son most of the $16 million asked in the case.
But after almost two weeks of trial, Jones settled outside the courtroom with Dr. James L. Burks and Humana Prime Health for $5 million. The settlement came minutes before jurors awarded Devin and his mother more than $13 million.
A Missouri law, still under legal challenge, would have limited the jury award to about $7.8 million. But Jones said she didn't have time to wait for that fight to play out, either.
In fact, she had offered to settle the case for $2 million two years ago. She needs the money fast to get Devin, the 1991 Easter Seals poster child, into the best therapy and treatment, she said.
"Between the ages 1 and 5 are critical times with a child who is brain-damaged," Jones said. "If I had gotten the money sooner, he could have had treatment that made him less disabled."
Jurors started deliberations Thursday afternoon. The settlement came after they asked for data on the cost of maintaining Devin for the rest of his life, a promising sign for plaintiffs.
Frank Saunders Jr., attorney for Prime Health, said after the settlement that Devin's bleeding condition was rare. He said he did not think the doctor should have been held accountable for failing to diagnose it.
Jones, a single mother in law school, said the money still could help him progress beyond his projected adult mental age of seven years.
"I have to believe that," she said.
After all, doctors also told her years ago that Devin would never walk. On Thursday, he trotted in the halls of the Downtown Courthouse. That same day, he played with toys at the lawyers' table during closing arguments. His yells of "Coo, coo" and "Dah, dah" punctuated his lawyer's outrage.
Victor A. Bergman, one of Devin's attorneys, told jurors in closing statements: "We're not going for sympathy, because we don't have to. Devin is entitled to be here, and you're entitled to see who he is. That's a 4-year-old acting like a 2-year-old.
"He has cerebral palsy," Bergman added. "He can hardly use his right hand, he's got a small head, and he's cross-eyed. Everything he does is therapy. He does that instead of soccer."
Devin pounded the table with a plastic toy.
Bergman told jurors that Burks was clearly negligent when he failed to recognize signs on a fetal monitor that indicated bleeding and the need for immediate delivery.
By the afternoon of Oct. 18, 1987, tests showed that Devin needed to be delivered, Bergman said. Burks delivered Devin about 10 p.m. Devin didn't get the blood transfusion he needed until more than an hour later.
Bergman criticized Burks for ignoring Jones and not visiting her in her hospital room until shortly before performing the Caesarean section.
"That is the worst kind of neglect," he said, "the neglect of not caring.
"His last official act in this case was to deny Luanne a private room. That would have cost his employer, Prime Health, $6 more a day."
Saunders told jurors in closing that it was true that doctors who testified did not praise Burks' work. But they also said he was not negligent, the lawyer added.
"They gave him Cs and Ds on the way this case was handled. Doctors have to exercise judgment every day, and sometimes they make mistakes, but that is not negligence."
Bergman responded to the jurors, "I don't envy a lawyer who has to get up and say, 'Give my client a D but don't give him an F.' "
Devin sat quietly.
THE KANSAS CITY STAR
Section: METROPOLITAN
Page: C1
By JOE LAMBE, Staff Writer
All content © 1991 THE KANSAS CITY STAR and may not be republished without permission.
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