February 22, 2022

California law limits noneconomic damages in medical malpractice cases to $250,000. That amount has not been increased since California’s Medical Injury Compensation Reform Act {“MICRA”) was signed into law in 1975. Specifically, Civil Code Section 3333.2 limits recovery for noneconomic losses resulting from medical malpractice to $250,000 in “each action for injury against a health care provider.”

A newborn that the prenatal physicians failed to determine was a macrosomic baby, weighing just shy of eleven pounds at birth, suffered shoulder dystocia during vaginal delivery leading to brachial plexus nerve injury and injury to the adjacent phrenic nerve because the delivering OB used excessive force to free the shoulder. The mother was not advised of her option to have a C-section as opposed to a vaginal delivery, and her medical providers failed to obtain her consent as to which option for delivery she preferred.

The parents’ California medical malpractice birth injury claims were sent to arbitration, which was conducted by Zoom over a 15-day period during which 15 medical providers and 12 medical experts testified. The parents’ litigation costs exceeded $135,000.

The arbitrator determined that there was “strong circumstantial evidence” supporting a finding that the delivering doctor went through the appropriate maneuvers to attempt to resolve the shoulder dystocia but she fell below the standard of care when she applied the last, desperate Zavanelli maneuver, which is a “rare and dangerous procedure” involving pushing the baby back into the birth canal and doing an emergency C-section, using “whatever force she thought necessary” to deliver the baby. The arbitrator found that while the delivering doctor “never admitted using anything but gentle force … [t]he inference is that more than gentle traction was used to deliver [the baby] within the 2-minute window.”

In an Interim Arbitration Award dated January 21, 2022, $250,000.00 was awarded to the child for “pain and suffering due to medical negligence, including but not limited to the first four months of his life being spent in the neo-natal ICU, enduring two years of a trach tube for breathing and a PEG tube for feeding, as well as delayed development of speech, motor, and social skills.” Neurological examinations confirmed that the child has ongoing fine motor deficiencies in writing, dressing, and other manual tasks. The parents testified that their child continues to experience separation anxiety from his parents, sleep disturbances, and other behavioral issues. For 390 days after birth, the parents conducted a 24/7 bedside “trach watch” to ensure their baby’s tracheostomy tube stayed clean and did not malfunction or become dislodged.

The arbitrator awarded the mother $250,000 for her negligent infliction of emotional distress claim, stating “She was also more involved than on ordinary bystander because she was a participant in the delivery process, the very event which caused the distress … she feared for the life and well-being of the baby. Immediately thereafter nurses began pumping [her] legs up and down and physically pushing down on [her] abdomen. Both [parents] observed [the delivering doctor] pulling and tugging on [the baby] in order to extract him from the birth canal. This was exacerbated when he was finally born limp and lifeless and underwent emergency resuscitation in the delivery room. [The father] began to cry and asked if the baby was dead.” Nonetheless, the arbitrator refused to award damages on the father’s claim for negligent infliction of emotional distress (“This is not to diminish what he felt, but the law requires serious emotional distress to recover NIED damages. It also cannot be said with certainty that he knew the unfolding events were leading to his son’s injury, which is another key component to recovery. Witnessing the birth of a baby can involve mishaps that do not necessarily result in injury to the infant. Therefore, his claim for NEID is denied.”).

If you or your baby suffered a birth injury (or worse) during labor and/or delivery in California or in another U.S. state, you should promptly find a California birth injury attorney, or a birth injury attorney in your state, who may investigate your birth injury claim for you and represent you and your child in a birth injury medical malpractice case, if appropriate.

Click on the “Contact Us Now” tab to the right, visit our website, or call us toll-free in the United States at 800-295-3959 to find birth injury lawyers in your state who may assist you.

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