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$4.72 Million Settlement on Birth Injury Case: Cerebral Palsy Was Preventable

The negligence of an obstetrician and of labor and delivery nurses at Salina Regional Health Center resulted in a $4.72 million settlement. The case, which was handled by Vic Bergman and Matt Birch, exhausted the defendants’ available insurance coverage and included $20,000 of the physician’s personal assets.

On an early morning in February 2006, our client, Adriane, presented to the Salina Regional Health Center in active labor at 39½ weeks gestation. Four hours later, her daughter, Kylee, was delivered by emergency cesarean section, asphyxiated and permanently injured as a result of the physician’s and nurses’ delay in responding to signs of catastrophic umbilical cord compression.

From the moment a fetal heart monitor was placed on Adriane shortly after admission at 3:30 a.m., signs of umbilical cord compression accompanied every contraction. The on-call obstetrician, Dr. David Prendergast, had not met Adriane until he first came to her room shortly before 7 a.m. During that visit, he ruptured the membrane, producing a severe variable deceleration in the baby’s heart rate. This was a red flag for umbilical
cord occlusion. But it went unnoticed or ignored by Dr. Prendergast and the Salina Regional nurses. For the next 15 minutes, an alarm on the fetal heart monitor sounded several times. Each time, it was turned off remotely from the nurses’ station, with no further evaluation of Adriane or Kylee.

At about 7:15 a.m., Dr. Prendergast came back to Adriane’s room. The fetal heart monitor strip for the previous 15 minutes was intermittent, difficult to interpret, and unreliable. At his deposition, Dr. Prendergast admitted that careful inspection of the fetal heart monitor strip for that crucial 15 minutes showed repetitive severe variable decelerations. Had these been noticed and appreciated, rapid evaluation and intervention would have occurred. But nothing was done.

At about 7:18 a.m., Dr. Prendergast told the nurse to have Adriane start pushing because dilatation was complete. When she started pushing, the fetal heart rate appeared clearly on the monitor at 60 beats per minute – a rate incapable of pumping blood to vital organs, including the brain. Because Dr. Prendergast had left the floor after giving the nurse the instruction to have Adriane start pushing, four minutes passed before personnel could find him and get him to the bedside. He ordered an emergency c-section. Kylee was born obviously asphyxiated and nearly dead.

The delay in recognizing the cord compression and the consequent deprivation of oxygen caused hypoxic-ischemic encephalopathy and cerebral palsy. Kylee will never walk, talk, or find gainful employment. She will always require 24-hour skilled care.

Plaintiff’s experts, and several defense experts, stated that had Kylee been delivered before pushing began, she would have suffered no injuries.

An early mediation did not resolve the dispute. At a second mediation that followed
expert discovery and significant additional expenses, Salina Regional offered to settle the case for $3.7 million, which represented all remaining insurance funds after payment on another claim. Dr. Prendergast offered to settle the case for his $1 million insurance coverage. Upon plaintiffs’ counsel’s insistence, Dr. Prendergast paid an additional $20,000 in personal assets to help offset plaintiffs’ litigation expenses incurred between the two mediations.

Experts were used in obstetrics, labor and delivery nursing, neonatology, pediatric neurology, neuroradiology, placental pathology, life expectancy, and economics.

This case is another in a long line of obstetrical negligence/birth injury cases handled by Shamberg, Johnson & Bergman, Chtd., dating back to the early 1980s.