Laron Birmingham, a Minor, by David P. Lowe, Guardian ad Litem and Kishia Lee v. Injured Patients and Families Compensation Fund, Lifetime OB/GYN, Ltd.; Dr. Donald Baccus; St. Joseph Regional Medical Center, Inc.

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MEDICAL MALPRACTICE: $23.2 MILLION

Case name: Laron Birmingham, a Minor, by David P. Lowe, Guardian ad Litem and Kishia Lee v. Injured Patients and Families Compensation Fund, Lifetime OB/GYN, Ltd.; Dr. Donald Baccus; St. Joseph Regional Medical Center, Inc.

Case no: 06CV006494

Disposition date: May 10-27, 2010

Court: Milwaukee County Circuit Court

Judge: Hon. Maxine White

Verdict/settlement: Verdict in favor of plaintiff

Amount: $23.2 Million

Special damages: Medical expenses: $187,402

Plaintiff’s attorney: Jeffrey M. Goldberg, Jeffrey M. Goldberg Law Offices, (http://www.goldberglaw.com/) Milwaukee

Guardian Ad Litem: David Lowe, Jacquart & Lowe SC, (http://www.jacquart-lowe.com/) Milwaukee

Plaintiff’s experts: Dr. Geoffrey Schnider, obstetrician-gynecologist (Houston, Texas); Dr. Richard Colan, plaintiff’s treating pediatric neurologist who had seen the child from 8 hours of birth until the present (Oak Creek, Wisconsin); Dr. Gary Yarkony, a physiatrist (Elgin, Illinois); Charles Linke, Ph.D., an economist (Champaign, Illinois)

Plaintiff’s rebuttal experts: Dr. Leonard Valentino, pediatric hematologist (Chicago, Illinois); Dr. Manohar Shroff, pediatric neuroradiologist (Toronto, Ontario); Dr. Gabrielle deVeber, pediatric neurologist (Oakville, Ontario)

Defendants’ experts: Dr. John Bazley, obstetrician-gynecologist (Monroe, Wisconsin); Lisa Hanson, R.N., nursing expert (Graton, Wisconsin); Dr. Susan Farrell, developmental pediatrician (Greensboro, North Carolina;); Jubin Merati, Ph.D., economist (Los Angeles, California); Dr. Stephen T. Glass, pediatric neurologist (Bothell, Washington); Dr. Joel Meyer, neuroradiologist (Evanston, Illinois); Dr. Sinisa Dovat, hematologist (Madison, Wisconsin)

Plaintiff counsel’s summary of the case: The case involved Laron Birmingham, who was born on May 3, 2005. His mother, Kishia, became pregnant in the fall of 2004. She had seen other physicians initially but changed to Lifetime OB/GYN, Ltd. in March of 2005. She was admitted to the hospital late in the evening on April 30 with a diagnosis of preeclampsia and kept on a monitor. In the early morning hours of May 2, her water broke and she was transferred to labor and delivery. By 6:45 she was dilated to three cm and was shortly thereafter placed on magnesium sulfate for preeclampsia to prevent seizures. Subsequently at approximately 9:30 when she was still three cm dilated pitocin was added to augment contractions. By 2 p.m. she had reached only five cm and if a normal progression of labor had ensued she would have delivered in the late afternoon — early evening hours. However the labor did not progress as anticipated and her rate of dilation was far below normally accepted obstetric norms, which have a minimum of 1.2 cm per hour. By 6:30 in the evening a young resident, Christy South, M.D., recognized the failure to progress and inserted an intrauterine pressure catheter to measure the force of contractions. At about 5 p.m., Dr. Donald Baccus had taken over this patient from one of his partners and was responsible that evening for the labor. Dr. Baccus did virtually nothing with regard to monitoring the labor nor determining why labor was not progressing normally. In fact he testified it was normal for this patient. By approximately 8 p.m. she was noted to be dilated to a rim (approx. 9+ cm) with the fetus at 1+ station. More than two hours later she was still dilated exactly the same with no further fetal descent. Again Dr. Baccus did absolutely nothing to evaluate the failure to progress and intervene.

At trial, it was pointed out that more than 60 percent of the primary cesarean sections done in this country are done for failure to progress in labor. By 9 p.m., the fetal monitor strip was showing a normal baseline but minimal variability. There were virtually no accelerations from approximately 9 p.m. on and none of the doctors did anything to stimulate or seek an acceleration.

By 11 p.m. Dr. Baccus determined she was now fully dilated and instructed the nurses to have her push. He left the labor room and went back to his office, which was still in the building. Immediately upon the patient pushing late decelerations developed with every contraction. There was one contraction during when Kishia, the mother, did not push and the fetal monitor strip showed no deceleration. Thus it was clearly established that the decelerations were the result of the mother’s pushing. Instead of the nurse instructing the patient to stop pushing and alerting the physician, the nurse allowed the pushing to continue. When Dr. Baccus returned at about 11:30 p.m. he also allowed the mother to continue pushing and thought he could deliver by forceps. He admitted that he did not know whether the fetus was OA or OP. He thought the baby was at +2 station according to the medical record and later in his discharge note indicated it was +2 to +3 station. In reality the baby had large caput succedaneum making accurate station determination very difficult. Despite knowing that the fetus was in a compromised position in terms of oxygenation status and knowing that the labor had not been progressing normally, Dr. Baccus instead of handling the forceps himself tendered the use of forceps to a resident. A third year resident did as instructed and applied Simpson Lucard forceps. These were forceps which the doctor normally used for a more difficult delivery. Thus, it countered his argument at trial that he thought it was an easy outlet since he did not use the forceps which he would normally use for this. The forceps were noted by the resident to slip off several times. Unbeknownst to Dr. Baccus the resident thought the fetus was an OA position, the normal position for delivery instead of inverted as an OP. After Joy Anderson failed with the forceps Dr. Baccus reapplied forceps on two occasions and then subsequently when forceps were not able to be used allowed the resident to apply vacuum for delivery. After vacuum there was a shoulder dystocia, which Dr. Baccus had to again step in to deliver.

The child was born with a cord blood pH of 6.96 and base deficit of -17.3. In addition the child had multiple skull fractures which plaintiff contended were from the forceps. Defendants claim skull fracture could occur in normal spontaneous delivery.

Defendants denied negligence but also claimed that since Laron’s cerebral palsy was not spastic quadriplegic, the type normally seen in global hypoxia, that the injury actually resulted from a sinus venous thrombosis, a type of stroke. None of the treating doctors had diagnosed this or seen it but rather it was clearly a defense argument. They called as a witness a neuroradiologist from Chicago to whom they did not even show all of the initial CT scans, who was the only one to see a sinus venous thrombosis. In actuality they had previously disclosed the films to a pediatric neuroradiologist, Dr. Gordon Sze, from Yale who had indicated it was a hypoxic ischemic injury.

Plaintiff disclosed rebuttal experts including Dr. Gabrielle deVeber, a world renowned sinus venous thrombosis expert and Dr. Manohar Shroff, a pediatric neuroradiologist who works with Dr. deVeber in the area of stroke research who told the jury that this child never had a sinus venous thrombosis.