$9 Million Settlement in Newborn Brain Injury Case

Attorneys Daniel S. Weinstock and Carolyn M. Chopko secured a $9 million settlement in Wisconsin for a child who was brain-injured as a newborn due to a doctor’s failure to administer antibiotics despite strong indications of a bacterial infection.

Shortly after delivery, the child developed symptoms consistent with a bacterial infection, including respiratory distress, decreased muscle tone and pale skin, and she required supplemental oxygen. The doctor who was managing her care ordered a complete blood count (CBC) and a blood culture. The order for the CBC was appropriate for suspicion of bacterial infection, and the only indication to order a blood culture would be suspicion of bacterial infection.

However, the doctor did not start antibiotic treatment, which the standard of care requires when a bacterial infection is suspected in a newborn. Instead, when the CBC and a chest x-ray were completed, the doctor misdiagnosed the child’s respiratory issues as transient tachypnea (TTN), which is a temporary respiratory condition that occurs in newborns shortly after birth. TTN does not cause paleness or changes in muscle tone and seldom causes the need for supplemental oxygenation. Weinstock and Chopko were prepared to establish at trial that the CBC showed clear neutropenia (lower-than-normal levels of a type of white blood cell call neutrophils), which in a newborn with respiratory distress is an extremely strong indication of bacterial infection. Even if TTN were the correct diagnosis (which it was not), the American Academy of Pediatrics policy statement on group B streptococcus expressly recommends antibiotics be given regardless, just in case.

In the hours following the misdiagnosis, the child’s condition continued to deteriorate, and the next morning she was transferred to another hospital for a higher level of care. There, antibiotic treatment was begun soon after her arrival. Subsequently, the child’s blood culture conclusively proved group B strep.

As a result of the defendant doctor’s failure to timely administer antibiotics, the child sustained right-sided hemiplegic cerebral palsy, epilepsy and extensive global developmental delays. Her condition has rendered her incapable of ever being gainfully employed, and she will require lifelong medical care and attention.

In negotiating the settlement, Weinstock and Chopko argued that this case of obvious negligence and an extraordinarily sympathetic child presented a perfect opportunity for the Wisconsin Supreme Court to reevaluate the constitutionality of the state’s $750,000 general damages cap.