Family Gets Record Settlement - Tilted Forum Project Discussion Community

maleficent · 08-18-2005, 02:32 PM

Baby's brain damage leads to record jury judgment

Quote:

By Jonathan Saltzman, Globe Staff | August 18, 2005

In what is being called the biggest personal-injury verdict in state history, a Middlesex County jury awarded nearly $40 million yesterday to the family of a Dracut boy born with severe brain damage in 1996 after a tramautic delivery at a Lowell hospital.

After deliberating for about 6 1/2 hours, the jury found Dr. Jacqueline Halladay, an obstetrician and gynecologist, negligent for having waited more than five hours to deliver the baby, Philip Antonelli Jr., in a caesarean section, despite signs of severe fetal distress.

The boy, now 8, has cerebral palsy and functions at the level of a 2- to 4-year-old. His mother, Lisa Antonelli, said she felt relieved and vindicated by the malpractice judgment against Halladay.

''We feel pretty much validated," Antonelli said. ''All this time, we thought that things had been wrong [with] the quality of care that we received. And now we know that's the case."

Her lawyer, Robert Higgins, said the verdict, which exceeds a $30 million award to a Randolph mother and her brain-damaged child in 1992, apparently stemmed from the severity of Philip Antonelli's injuries and the care he will need for the rest of his life.

Halladay's lawyer, Kenneth D. Weiss, declined to comment yesterday. In a memorandum submitted to Middlesex Superior Court before trial, he said that Halladay had done nothing wrong in the delivery at Saints Memorial Medical Center in Lowell and that she could have done nothing to prevent the injuries.

Halladay -- who now practices medicine in the Chapel Hill, N.C., area, according to Higgins -- could not be reached for comment. The hospital was not a defendant in the case.

Lisa Antonelli, now 41, went to Saints Memorial Medical Center around 9 p.m. on Nov. 7, 1996, when she was 38 weeks pregnant, which is considered full term, said Higgins, of the firm Lubin & Meyer. She was not in labor, but was concerned that she could not feel the fetus moving.

Halladay, who Higgins said had completed her residency only that June and who had joined a medical practice in August, was on call for the delivery.

The doctor performed two tests that found the fetus to be in distress, Higgins said.

By 1:30 a.m., Higgins said, the doctor should have ordered an emergency caesarean because the fetus was being deprived of oxygen. But Halladay decided to give Antonelli the drug Pitocin to cause contractions for a vaginal delivery.

When the fetus's heart rate slowed to a dangerous level at 3:40 a.m., Higgins said, Halladay ordered a caesarean, but the procedure did not take place until 7:05 a.m. because Halladay still did not think it was an emergency.

Halladay testified that she went into another room in the interim and at one point, Higgins said yesterday, ''most likely went to sleep."
In what is being called the biggest personal-injury verdict in state history, a Middlesex County jury awarded nearly $40 million yesterday to the family of a Dracut boy born with severe brain damage in 1996 after a tramautic delivery at a Lowell hospital.

After deliberating for about 6 1/2 hours, the jury found Dr. Jacqueline Halladay, an obstetrician and gynecologist, negligent for having waited more than five hours to deliver the baby, Philip Antonelli Jr., in a caesarean section, despite signs of severe fetal distress.

The boy, now 8, has cerebral palsy and functions at the level of a 2- to 4-year-old. His mother, Lisa Antonelli, said she felt relieved and vindicated by the malpractice judgment against Halladay.

''We feel pretty much validated," Antonelli said. ''All this time, we thought that things had been wrong [with] the quality of care that we received. And now we know that's the case."

Her lawyer, Robert Higgins, said the verdict, which exceeds a $30 million award to a Randolph mother and her brain-damaged child in 1992, apparently stemmed from the severity of Philip Antonelli's injuries and the care he will need for the rest of his life.

Halladay's lawyer, Kenneth D. Weiss, declined to comment yesterday. In a memorandum submitted to Middlesex Superior Court before trial, he said that Halladay had done nothing wrong in the delivery at Saints Memorial Medical Center in Lowell and that she could have done nothing to prevent the injuries.

Halladay -- who now practices medicine in the Chapel Hill, N.C., area, according to Higgins -- could not be reached for comment. The hospital was not a defendant in the case.

Lisa Antonelli, now 41, went to Saints Memorial Medical Center around 9 p.m. on Nov. 7, 1996, when she was 38 weeks pregnant, which is considered full term, said Higgins, of the firm Lubin & Meyer. She was not in labor, but was concerned that she could not feel the fetus moving.

Halladay, who Higgins said had completed her residency only that June and who had joined a medical practice in August, was on call for the delivery.

The doctor performed two tests that found the fetus to be in distress, Higgins said.

By 1:30 a.m., Higgins said, the doctor should have ordered an emergency caesarean because the fetus was being deprived of oxygen. But Halladay decided to give Antonelli the drug Pitocin to cause contractions for a vaginal delivery.

When the fetus's heart rate slowed to a dangerous level at 3:40 a.m., Higgins said, Halladay ordered a caesarean, but the procedure did not take place until 7:05 a.m. because Halladay still did not think it was an emergency.

Halladay testified that she went into another room in the interim and at one point, Higgins said yesterday, ''most likely went to sleep."

''We thought it was wrong that she wasn't taking him right away," Lisa Antonelli said yesterday. ''We didn't understand why they were waiting."

Twenty minutes after Philip Antonelli was born, Higgins said, the baby suffered a seizure and was then placed in an incubator.

He was transferred to New England Medical Center for treatment of massive bleeding in the brain, which probably resulted from a lack of oxygen.

''I don't think that she intentionally did this," Antonelli said. ''But unfortunately, back then, she was [in a position] above her qualifications."

Today her son needs help dressing and showering. His speech is garbled, and he can generally be understood only by his parents, his mother said. He walks with braces and has a wobbly gait. He has no control over his right hand and has a shunt in his head to drain fluid.

Nonetheless, Antonelli said, he attends a Dracut elementary school, where he is entering the third grade. ''Socially, he excels," she said. ''He's a happy guy and gets everybody to love him."

Antonelli's husband is a loan officer for a mortage company, and she is a stay-at-home mother. She said that she and her husband -- who also have a 5-year-old daughter, Molly -- hope that the verdict, which cannot be appealed under the agreement, means that their son can obtain appropriate care after they die.

''The reason we did this was to make sure he would be taken care of, no matter what happens to us," she said.

Although the jury awarded almost $40 million, including interest, the Antonelli family will receive less than that. Higgins said lawyers for both sides agreed during deliberations that if the jury sided with the Antonellis, Halladay would be liable only for the maximum covered by her malpractice insurance policy. Higgins said both sides had agreed not to disclose that sum.

Despite the public perception that multimillion-dollar judgments are widespread, Massachusetts juries have appeared to be increasingly skeptical about personal-injury claims, which makes yesterday's award that much more startling, said David Yas, publisher and editor-in-chief of Massachusetts Lawyers Weekly.

''More than ever, it takes extraordinary circumstances to get a hefty award like that," he said. ''I certainly can't remember anything that high."

This is an amazing verdict, though the family will not get the full amount, both sides agreed to the max being whatever the doctor's malpractice insurance would cover as long as it wasnt appealed...

Part of me applauds the family for getting such a settlement, because this child will need care for the rest of his life, and from what I know of chidren with CP, they don't live a short life... But another part of me says, dang that's a lot of money, why is this one life worth so much?

This story is so familiar to a friend of mine, who's daughter was born 17 years ago, under similar circumstance, the doctors waited too long for the cesearean and this sweet wonderful and amazing child paid the price. I wish that my friends had decided to sue the doctor and the hospital.

Elphaba · 08-18-2005, 04:11 PM

But Mal, we both know of a woman that refused a C-section twice because of her obsession with a vaginal birth, and even though her unborn child was in fetal distress is (or was?) considering suing the hospital for her emotional distress with being denied a vaginal birth.

Quote:

After deliberating for about 6 1/2 hours, the jury found Dr. Jacqueline Halladay, an obstetrician and gynecologist, negligent for having waited more than five hours to deliver the baby, Philip Antonelli Jr., in a caesarean section, despite signs of severe fetal distress.

The boy, now 8, has cerebral palsy and functions at the level of a 2- to 4-year-old. His mother, Lisa Antonelli, said she felt relieved and vindicated by the malpractice judgment against Halladay.

Eight years have gone by, long enough for an intern to become a resident, and then an independent physician with malpractice insurance.

Eight years ago, the mother went to ER because she hadn't felt the fetus moving recently. Was it one hour, two hours or maybe even five hours? Or was it days?

I guess my skepticism comes from the long delay in filing a suit, and that we live in a litigious society. That this family agreed to settle for the full extent of the doctor's liability insurance doesn't change my skepticism.

maleficent · 08-18-2005, 04:20 PM

For all the reading I have done because of my friends child, I honestly dont know a lot about the cerebral palsy... In my friends case, their daughter wasnt diagnosed with it until she was two years or older... the seizure they thought were related to other things... I'm not sure what, if any, the statute of limitations are on suiing for medical malpractice, but they may have had waited a while for legal advice... I know in my friends case, it never occured to them to sue, and the child's grandfather is an attorney.. .the two sets of grandparents put a lot of money into trust for her and that pays her medical bills.

reiii · 08-18-2005, 04:25 PM

Quote:

Originally Posted by Elphaba

But Mal, we both know of a woman that refused a C-section twice because of her obsession with a vaginal birth, and even though her unborn child was in fetal distress is (or was?) considering suing the hospital for her emotional distress with being denied a vaginal birth.

Eight years have gone by, long enough for an intern to become a resident, and then an independent physician with malpractice insurance.

Eight years ago, the mother went to ER because she hadn't felt the fetus moving recently. Was it one hour, two hours or maybe even five hours? Or was it days?

I guess my skepticism comes from the long delay in filing a suit, and that we live in a litigious society. That this family agreed to settle for the full extent of the doctor's liability insurance doesn't change my skepticism.

what he said. the settlement details leave little to the imagination.

Elphaba · 08-18-2005, 05:17 PM

Quote:

Originally Posted by maleficent

For all the reading I have done because of my friends child, I honestly dont know a lot about the cerebral palsy... In my friends case, their daughter wasnt diagnosed with it until she was two years or older... the seizure they thought were related to other things... I'm not sure what, if any, the statute of limitations are on suiing for medical malpractice, but they may have had waited a while for legal advice... I know in my friends case, it never occured to them to sue, and the child's grandfather is an attorney.. .the two sets of grandparents put a lot of money into trust for her and that pays her medical bills.

I have little knowledge of CP, and probably far less than you. Maybe the prosecution in this trial described the causes in such a way that it made it an easy six hour decision for the jury.

I transcribed notes for a woman studying at Berkeley because she had lost the fine motor skills of her right hand due to CP. My single experience with Janet certainly doesn't give me any "expert" status. However, she was in her mid '30s, and struggling to meet the requirements of her undergraduate degree, and never was deterred.

She never came from any sort of resentment about what CP was doing to her body, and she didn't look to blame anyone, least of all the doctor that delivered her into the world.

AVoiceOfReason · 08-18-2005, 08:05 PM

I'm familiar with medical malpractices cases, and know what kind of evidence is presented in cases of this nature as to the costs of caring for a severely damaged child for the rest of his life. Life care planners testify as to the expenses that will be expected--based largely on what have already incurred.

As for the delay in filing the suit, there are many reasons why this could be. First, until the child has grown a bit, there may not be a realization as to the full extent of the damages. Second, when a child is involved, the statute of limitations in most states doesn't start running as it does against an adult. Third, there were probably negotiations that took place before filing suit. I often will try to settle a case for awhile before taking it out of the insurance adjuster's hands and having it turned over to the legal department.

The settlement is also fairly common; the parties may have agreed to what is called a 'high/low' arrangement, in which the litigants have already determined what their best and worst results will be. The plaintiff will agree to this to make sure they don't get the big ZERO at trial, while the defendant insurance company will make sure they don't get put on the hook for more money than they contracted to provide in the event of negligence being found. IF this is the case (and I don't know it for sure based on what I read here), then the insurance company had already determined that the doctor had fouled up, and they weren't likely to be able to bamboozle a jury into thinking otherwise.

As in MOST jury verdicts, I'm comfortable that my fellow citizens that heard the entire case and were instructed in the law knew more about what the right thing was, and did it. The exceptions are the ones that make the news, as well as the ones where an old record was broken.

dy156 · 08-18-2005, 08:57 PM

AVOR is right on in everything that was stated. These must have been some really bad facts. Can't really tell from the article, but I'll add though, that in addition to bad facts, either the doctor or his lawyers must have somehow pissed off the jurors, or there was a huge discrepancy in the quality of the economic experts used. Even bad facts, by themself, usually don't lead to verdicts in this range anymore.

BigBen · 08-19-2005, 06:52 AM

In Canada, the malpractice association we have is fundamentally different.

The CMPA (The Canadian Medical Protection Association) is nationwide physician malpractice insurance, and participation is mandatory. A doctor is not allowed to shop around for good insurance, it is a one stop deal.

When litigation is started, physicians feel as if they have something to lose, collectively, if the case is successful. Therefore, the CMPA fights every case of malpractice as if the world were ending. It is often hard to find expert testimony to support a claim, because doctors do not want to be seen as "going against the family".

Then again, looking at the rationale behind such a high number (40 million, damn, I like the way that feels when I type it) the article states

Quote:

Her lawyer, Robert Higgins, said the verdict...apparently stemmed from the severity of Philip Antonelli's injuries and the care he will need for the rest of his life.

In a nation where care is heavily subsidized (NOT FREE, as people think) an award would be more appropriate around 1 million, or even much less.

Look at the slippery slope your baloon awards have put you (collectively) on:

Big Damage award to pay for expensive care
Doctors charge huge prices to pay for expensive malpractice insurance
Malpractice insurance is very expensive to pay for future Big Damage awards.

Our countries have alot to learn from each other... You guys need to cap the damages, and we need to allow private malpractice insurance.

To further steer conversation, didn't the US federal government just re-calculate the cost of a human life at around 4 million? If a loved one dies due to the actions of a federal agent, then supposedly the government owes your family 4M$, give or take... And this family gets 10 times that amount, to pay for future care???

What kind of gold-plated-bed-pan is this kid going to sit on?

snowy · 08-19-2005, 03:09 PM

Quote:

Originally Posted by BigBen931

Our countries have alot to learn from each other... You guys need to cap the damages, and we need to allow private malpractice insurance.

Some states do have damage caps; I live in one such state. In recent elections attempts have been made to do away with the damage caps.

Given the cost of long-term care in the United States, the award seems reasonable. Consider that this child is very young still, has very little motor skill/mental capacity, and will more than likely require care well after middle age. Consider that it is likely that his care will become increasingly difficult as he ages. Then think about how far that money has to stretch. How long will his parents will be able to care for him? How long until they pass his care on to someone more specialized? These are all things the jury had to think about.

Reading the details of the case, I think they did the right thing.

Hanabal · 08-19-2005, 04:30 PM

if the money was guaranteed to be used only for his care then i aproove.

But i would not be surprised and even willing to put down money saying that in the very near future the family will have a new house far bigger than they need, a car of a sort useless to a disabled child(ie sports), a boat, an enourmous TV and other completely unrelated goods.

I hope im wrong

dy156 · 08-19-2005, 08:11 PM

I'd take that bet, Hanibal. If there was a hi-lo agreement, and it's apparantly the policy limits, the family won't be buying a new house or a gold bedpan any time soon. It can cost 250K to bring a suit like this to trial. Experts, depositions, travel, document production, video production, etc.. these costs typically come off the top. Then attorneys fees of 30-40% (Despite common misperceptions, many lawyers will reduce their fees because after working with these folks for years, you start to feel for them.) Some malpractice coverage has minimum limits in the 250-500K range, though I suspect that these limits were quite a bit higher. They will likely go through a structured settlement company that will invest what is left over and make it available for the care of the child, so that it lasts and goes to what it is intended to do, rather than a new house and cars. Yes, the lawyers get alot of money, but they invested heavily in this case, and earned it. Without them, the family would not have gotten nearly as much, even after everything is taken out.
The real bad guy here is the malpractice insurance. Given facts bad enough that the jury needed only 6 1/2 hours to award $40 million, the malpractice insurance should have tendered policy limits when the claim was made, rather than fighting it. That's the whole purpose of having insurance, right? When something bad happens, you're covered. But insurance companies make money by not paying, and this time they got burned. They probably spent as much fighting it as they wound up paying in the end, and it all could have been avoided had the adjuster made the right call.

08-18-2005, 04:20 PM	#3 (permalink)
maleficent Junkie Moderator Emeritus Location: Chicago	For all the reading I have done because of my friends child, I honestly dont know a lot about the cerebral palsy... In my friends case, their daughter wasnt diagnosed with it until she was two years or older... the seizure they thought were related to other things... I'm not sure what, if any, the statute of limitations are on suiing for medical malpractice, but they may have had waited a while for legal advice... I know in my friends case, it never occured to them to sue, and the child's grandfather is an attorney.. .the two sets of grandparents put a lot of money into trust for her and that pays her medical bills. __________________ Free your heart from hatred. Free your mind from worries. Live simply. Give more. Expect less.

08-18-2005, 08:05 PM	#6 (permalink)
AVoiceOfReason Psycho Location: Greenwood, Arkansas	I'm familiar with medical malpractices cases, and know what kind of evidence is presented in cases of this nature as to the costs of caring for a severely damaged child for the rest of his life. Life care planners testify as to the expenses that will be expected--based largely on what have already incurred. As for the delay in filing the suit, there are many reasons why this could be. First, until the child has grown a bit, there may not be a realization as to the full extent of the damages. Second, when a child is involved, the statute of limitations in most states doesn't start running as it does against an adult. Third, there were probably negotiations that took place before filing suit. I often will try to settle a case for awhile before taking it out of the insurance adjuster's hands and having it turned over to the legal department. The settlement is also fairly common; the parties may have agreed to what is called a 'high/low' arrangement, in which the litigants have already determined what their best and worst results will be. The plaintiff will agree to this to make sure they don't get the big ZERO at trial, while the defendant insurance company will make sure they don't get put on the hook for more money than they contracted to provide in the event of negligence being found. IF this is the case (and I don't know it for sure based on what I read here), then the insurance company had already determined that the doctor had fouled up, and they weren't likely to be able to bamboozle a jury into thinking otherwise. As in MOST jury verdicts, I'm comfortable that my fellow citizens that heard the entire case and were instructed in the law knew more about what the right thing was, and did it. The exceptions are the ones that make the news, as well as the ones where an old record was broken. __________________ AVOR A Voice Of Reason, not necessarily the ONLY one.

08-19-2005, 04:30 PM	#10 (permalink)
Hanabal Insane Location: Auckland	if the money was guaranteed to be used only for his care then i aproove. But i would not be surprised and even willing to put down money saying that in the very near future the family will have a new house far bigger than they need, a car of a sort useless to a disabled child(ie sports), a boat, an enourmous TV and other completely unrelated goods. I hope im wrong __________________ I am Hanabal, Phear my elephants

08-18-2005, 08:57 PM	#7 (permalink)
dy156 cookie Location: in the backwoods	AVOR is right on in everything that was stated. These must have been some really bad facts. Can't really tell from the article, but I'll add though, that in addition to bad facts, either the doctor or his lawyers must have somehow pissed off the jurors, or there was a huge discrepancy in the quality of the economic experts used. Even bad facts, by themself, usually don't lead to verdicts in this range anymore.

08-19-2005, 08:11 PM	#11 (permalink)
dy156 cookie Location: in the backwoods	I'd take that bet, Hanibal. If there was a hi-lo agreement, and it's apparantly the policy limits, the family won't be buying a new house or a gold bedpan any time soon. It can cost 250K to bring a suit like this to trial. Experts, depositions, travel, document production, video production, etc.. these costs typically come off the top. Then attorneys fees of 30-40% (Despite common misperceptions, many lawyers will reduce their fees because after working with these folks for years, you start to feel for them.) Some malpractice coverage has minimum limits in the 250-500K range, though I suspect that these limits were quite a bit higher. They will likely go through a structured settlement company that will invest what is left over and make it available for the care of the child, so that it lasts and goes to what it is intended to do, rather than a new house and cars. Yes, the lawyers get alot of money, but they invested heavily in this case, and earned it. Without them, the family would not have gotten nearly as much, even after everything is taken out. The real bad guy here is the malpractice insurance. Given facts bad enough that the jury needed only 6 1/2 hours to award $40 million, the malpractice insurance should have tendered policy limits when the claim was made, rather than fighting it. That's the whole purpose of having insurance, right? When something bad happens, you're covered. But insurance companies make money by not paying, and this time they got burned. They probably spent as much fighting it as they wound up paying in the end, and it all could have been avoided had the adjuster made the right call.