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$18 million settlement in a medical malpractice case involving the traumatic birth of a baby boy who was deprived of oxygen during labor and delivery

Marc A. Taxman and Mark Novak both partners at Anesi, Ozmon, Rodin, Novak and Kohen Ltd., settled a medical negligence case for $18,000,000.00.

What Happened: The case involved the traumatic birth of a baby boy on September 27, 2001. His Mom was 2 days late and went in for a scheduled induction of labor on September 27, 2001. Pitocin induction began at 7:00am and the baby was ultimately delivered by low forceps at 7:01pm. The course of labor began with an absolutely perfect fetal heart tracing, but as the day wore on he began to show signs of distress. He suffered from hypoxia (lack of oxygen) because his umbilical cord was being repeatedly compressed and the mother's uterine contractions were happening too frequently (hyperstimulation). This became evident due to the pattern of fetal heart decelerations that began to emerge on the fetal heart tracing. We alleged that measures should have been taken to improve the baby's oxygenation, or test the level of acid in his blood to verify the hypoxia, and/or intervene with a Cesarean delivery. Mom reached the second stage of labor (the pushing stage) at 1:45pm. She pushed for 30 minutes but could not feel to push effectively due to the level of anesthesia. Her epidural anesthetic was turned down at 2:15pm and she resumed pushing at 3:00pm. She was directed to push for another 4 hours until she was exhausted. The attending physician, Cynthia M. Phelan, M.D., who was an employee of Obstetrics and Gynecology, P.C., was in and out of the labor and delivery room all day attending to other affairs -- seeing other patients at her office, going to the clinic and ultimately left the hospital again at 5:00pm to see patients at her office when her presence was needed. Mom was left in the care of the labor and delivery nurse, Anja Koolhof, RN, an employee of both Cross Country Healthcare, Inc. and an "Unnamed Medical Institution" (the name of the medical institution is subject to a confidentiality agreement). Dr. Phelan returned to the hospital at about 6:40pm and performed the low forceps delivery.

The baby emerged lifeless, blue, and floppy. There was no joy of a baby's cry only overwhelming silence and horror. Then there was chaos as he was handed off to a pediatrician and resuscitation team. It took 12 minutes to revive him. His blood gases showed severe asphyxia. The baby sustained global brain damage due to oxygen deprivation during the labor and delivery process.

How The Baby Was Harmed: The baby suffered Hypoxic Ischemic Encephelopathy (HIE) and he has been diagnosed with Cerebral Palsy of the spastic quadriplegic type. He is now 5 years old, neurologically devastated and is totally dependent on the care of others for all activities. His Mother and Father lived in Chicago in Bucktown when he was born. Mom was the office manager for an investment banking firm and Dad was a professional photographer. They had to give up their jobs and move out of state to be closer to family who could help with the baby's care. Dad took a job in a factory working the night shift and Mom has devoted herself to caring for the baby and now their second child -- who was born without incident by scheduled C-Section.

What They Did Wrong: Failure to identify and respond to fetal intolerance to labor shown on the fetal heart tracing, failure to improve the baby's oxygenation, failure to perform fetal scalp pH sampling to diagnose acidosis, failure to invoke the chain of command to effectuate timely delivery, failure to perform a Cesarean section. The baby presented with an absolutely perfect fetal heart tracing and it deteriorated without the necessary and appropriate intervention that would have prevented this tragic outcome.

The Defense They Mounted: The defense claimed that the brain damage was caused by some pre-admission condition that set the baby up for this result, i.e. he was not physiologically capable of withstanding the normal traumas associated with the typical labor and delivery. The defense also claimed that the baby must have had a viral infection during the prenatal period and that the Fetal Heart Tracing was not indicative of distress. Further, the defense claimed that the amount of damages sought were excessive and hired their own life care planner and economist. The defense also hired a pediatric physiatrist and argued a reduced life expectancy. The defense further attempted to admit Annuity evidence to reduce the present cash value of the economic damages.

The Settlement: After four years of litigation settlement negotiations culminated and they paid $18,000,000.00. The proceeds of this settlement were deposited into a special trust account for the benefit of the child. The family will now be able to build a fully handicap accessible home, purchase a custom van for transportation, receive round the clock nursing aid and purchase any necessary equipment for the benefit of the child.

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Anesi, Ozmon, Rodin, Novak & Kohen Ltd. - Personal Injury Attorneys Chicago

Anesi Ozmon Rodin Novak & Kohen, Ltd.
161 North Clark Street, Suite 2100
Chicago, IL 60601

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