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$4.3 M in Failure to Implement Polices for Newborn Jaundice

A hospital’s failure to have policies in place to prevent devastating brain injuries to infants led to a $4.3 million Kansas settlement. Vic Bergman represented the family.

Daniel Deya was born healthy at Hiawatha Community Hospital in 2009. Tragically, he suffered a preventable brain injury as a consequence of untreated jaundice. Doctors missed the significance of several major risk factors for the development of severe hyperbilirubinemia documented in Daniel’s medical record. These included late pre-term birth gestation, incompatibility between his blood and his mother’s, male gender, and breastfeeding.

If high-risk infants are not identified, jaundice (increased bilirubin) may progress to severe hyperbilirubinemia. This can cause Kernicterus, a devastating brain injury, and the preventable tragedy that occurred in this case, all due to ignorance and disregard for authoritative neonatal health recommendations.

At about 23 hours of age, Daniel was first noted to have jaundice. Jaundice in the first 24 hours is always considered pathologic until proven otherwise, requiring measurement of the baby’s bilirubin level in the blood. Daniel was discharged home at 41-hours of age. By then, his jaundice had progressed.

At five days of life, Daniel’s condition rapidly deteriorated. He was taken to a local clinic where he was diagnosed with severe hyperbilirubinemia and transferred to Children’s Mercy Hospital in Kansas City, Mo., where he was diagnosed with severe Kernicterus. Daniel has severe cerebral palsy and now needs 24-hour care for life.

A suit was filed in Kansas federal court against three defendants – Hiawatha Community Hospital, Steffen Shamburg, MD, and Peter Rosa, MD. In addition to claims of doctor and nursing negligence, plaintiffs claimed institutional administrative negligence on the ground that Hiawatha Community Hospital had never adopted policies or procedures for the evaluation, testing, and treatment of jaundice, or for screening for the likelihood of severe hyperbilirubinemia (For briefs and a court order on this subject, please visit www.sjblaw.com, Resources, Briefs, Orders & Case Materials.)

Neither the physicians nor the nursing staff understood the significance of jaundice in the first 24 hours of life. Nobody performed a simple risk assessment for the development of severe hyperbilirubinemia. Nobody educated Daniel’s family about the significance of jaundice at less than 24-hours of life, or taught them how to examine for the progression of jaundice, or told them that bilirubin levels peak at four to five days of age. The providers gave Daniel’s family a false sense of security at discharge from the hospital by inappropriate advice that jaundice is common and not to worry because it always resolves. They also said to use the long-discredited therapy of sunlight to treat Daniel’s jaundice.

Each of the three defendants stated they had just one million dollars of insurance coverage. Plaintiff’s damage claims included $250,000.00 for noneconomic damages, past medical bills of $372,900.00, lost earning capacity of $4,700,000.00, and a life-care plan for over $27,000,000.00. Policy limits of $3 million were offered but turned down, and discovery proceeded.

The Chief Executive Officer of the hospital was subpoenaed to bring all of the hospital liability policies to a deposition, and it appeared that the combined coverage was limited to $3 million. But months later, just before mediation, a separate policy was located providing an additional $1 million of coverage for non-physician employees, i.e. the nurses. A claim was then made personally against the nurses, and the newly-discovered $1 million policy was added to the offer. The plaintiffs then insisted on a contribution from the individual defendants. The case finally settled for $4.3 million, which included all of the insurance coverage, plus $250,000.00 from the hospital, and $50,000.00 from Dr. Rosa.

This case was a tragedy upon tragedy — a completely preventable injury, and a grossly under-insured hospital.