Jurisdictional Ruling Key
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Thus, the case was filed in federal court in Kansas City, Kansas on behalf of Gustavo and Patricia Barragan, citizens of Mexico, against the attending obstetrician, St. Catherine’s Hospital and two labor and delivery nurses, Denise Harkness and Valerie Rowan. Some months later, the Complaint was amended to join Estrella Barragan as a plaintiff and add Mexican American Ministries and the obstetrician responsible for Patricia’s prenatal care, both of whom fell under the Federal Tort Claims Act. After substantial discovery, a decision was made to focus on the negligence of the labor and delivery nurses, so all defendants other than St. Catherine’s and Rowan were dismissed. Despite the strenuous efforts of defense counsel, the district court exercised its discretionary supplemental jurisdiction of Estrella’s purely state law claims under 28 U.S.C. |
§ 1367, and denied a motion to dismiss the case on jurisdictional grounds and thus, the case remained in federal court.
As in many medical malpractice cases, the defense focused on causation and damages. In the medical records, the rupture was described as: “Sudden catastrophic event.” The defendants argued that the injury suffered by Estrella was immediately profound and injurious. They claimed earlier delivery probably would not have spared Estrella her injuries.
Plaintiffs’ experts, on the other hand, testified that such injuries occur over a time continuum, with the most severe injury occurring in the moments closest in time to delivery. Plaintiffs’ evidence was that delivery even fifteen minutes earlier would have eliminated a vast majority or all of the sequelae related to the hypoxic insult. Thus, had the labor and delivery nurses acted quickly, delivery would have occurred early enough for Estrella to escape injury. |
Another issue was life expectancy, directly related to the amount of future economic damages. Plaintiffs’ life care planner opined that Estrella, with optimal care, has an average life expectancy. Defendants’ life care planner, Dr. Richard Katz, on the other hand, opined that Estrella has a life expectancy of only fourteen years.
Plaintiffs’ experts included two obstetric nurses, two obstetricians, a neonatalogist, a pediatric neurologist, a life-care planner and an economist.
Trial of the case was set for May 3, 2005. Despite the fact that none of the defendants’ expert depositions had been taken, mediation was held on July 4, 2004. At the mediation, it was discovered that St. Catherine had substantially more insurance coverage than had been represented to the plaintiffs prior to that date. (See Practice Tip below.) Within weeks following the mediation, the case settled for a total of $4,300,000.00.
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Never assume you know what the extent of insurance coverage is until you have it in writing, and then keep asking. When settling “excess” cases, always make a record of reliance on the amount of insurance represented by defense counsel. At the mediation of the Barragan case, defendants’ discovery responses indicated that there was a $1 million policy covering defendant Valerie Rowan plus $3.3 million covering St. Catherine’s Hospital. During the mediation, however, after negotiations had been going on for a few hours, it was disclosed that there was an excess policy of $150 million covering St. Catherine’s Hospital. The excess carrier was not present at the mediation. According to defense counsel, it was simply an oversight that plaintiffs had not been informed of the coverage. Plaintiffs immediately made a one time only offer to settle for $4.3 million (all the policies that were represented at the mediation) in order to place the underlying insurance companies at risk for bad faith. This offer was not rejected; rather, the defendants asked that it be left open for ten (10) days. That offer was accepted by the defendants in the days
following the mediation. |
