KUSSMAN & WHITEHILL OBTAINS LARGEST MEDICAL MALPRACTICE AWARD EVER
RENDERED AGAINST KAISER HOSPITAL

Russell S. Kussman, M.D., J.D. recently obtained an arbitration award of over $6,000,000 for a brain-damaged baby and her family. This 2007 award exceeded the previous record award against Kaiser, also set by Kussman & Whitehill in 2000.

The case involved a baby who was born at a Kaiser facility in southern California in 2001.

The baby's mother entered the hospital at term for labor and delivery. She was put on Pitocin to induce labor. Near the end of the first stage of labor, the baby began to become compromised due to lack of oxygen, secondary to recurrent umbilical cod compression. Instead of shutting off the Pitocin and taking the mother for a Cesarean section in a timely manner, the defendants continued the Pitocin and left the mother in the labor room until the baby decompensated. By the time they did move her to the operating room for an emergency C-section, the baby suffered severe and permanent brain damage.

CONTENTIONS: Plaintiff contended that once the baby began to show signs that she was not tolerating the recurrent umbilical cord compressions, the mother should have been moved to the operating room in anticipation of a prompt Cesarean delivery (especially since the mother had not yet even started the second stage of labor and, therefore, delivery was not imminent). Had that been done, delivery could have been easily accomplished prior to the onset of severe hypoxia and resultant brain damage.

The defense contended that the baby had been tolerating the recurrent umbilical cord compression well, until she suddenly and unexpectedly decompensated. Once that occurred, the defendants moved quickly to an emergency C-section. However, even expeditious delivery could not prevent severe brain damage due to the unpredictable nature of the acute event.

INJURY: The child suffers from severe Cerebral Palsy, with spastic quadriplegia, developmental delay, mental retardation and a seizure disorder.

RESULT: A neutral arbitrator rendered an award in favor of the plaintiff in the amount of $6,000,236 (present cash value), consisting of the following: Loss of earning capacity -- $805,000; Future Medically-related Care -- $4,945,236; and Pain & suffering -- $250,000 (as limited under California law).

COMMENTS: This case was originally tried two years previously in 2005, before an arbitrator who found in favor of Kaiser and against the plaintiff. This award was vacated by the Superior Court on the grounds he had not disclosed previous cases he had arbitrated and mediated with Kaiser and Kaiser's attorney, prior to the first arbitration hearing. The case was then re-tried before a different arbitrator, who ruled in favor of the plaintiff and rendered the record award.

Defendants never made an offer to settle the case at any time prior to the 2007 award. Given that plaintiff had made a previous settlement demand that was not accepted, she is expected to be entitled to pre-judgment interest of approximately $1.3 million, resulting in a final judgment of over $7,300,000.

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