Attorneys Carol Nelson Shepherd and Patricia M. Giordano reached a $5 million settlement for the family of a child who was born with a relatively mild congenital anomaly but was left severely disabled as a result of complications during a minor corrective surgery. As a consequence, the baby suffered significant developmental delays as well as cerebral palsy.
Minor-plaintiff was born with a relatively mild congenital anomaly of his urinary tract for which he was to undergo cystoscopy and possible treatment of posterior urethral valves at an out-of-state children’s specialty hospital. As the infant was placed under general anesthesia, after multiple attempts were made to find appropriate surgical positioning, and just as the surgeon began to insert the scope, suddenly the baby’s end tidal CO2 fell, followed by a decrease in his oxygenation and then his heart rate. Ultimately a full Code was called, chest compressions and numerous resuscitative medications were administered, and the baby was shocked on at least three occasions before recovering a spontaneous heartbeat.
As a consequence, the baby suffered hypoxic ischemic encephalopathy, which has left him with significant developmental delays as well as cerebral palsy.
Although clearly an acute cardiac arrest is not supposed to happen during the course of minor surgery on an otherwise healthy infant, it proved much more difficult to identify a specific act or acts of negligence which caused or contributed to that outcome. Consultation was made with numerous experts from a wide variety of disciplines who were prepared to testify that the baby’s pre-operative elevated potassium, which had not been corrected or the surgery delayed, precipitated initial cardiac changes which then may have been aggravated by some displacement of the endotracheal tube in conjunction with the multiple efforts at positioning. Additionally, plaintiffs’ experts opined that air was permitted to enter the baby’s circulation in conjunction with the placement of an umbilical venous catheter (UVC), and that the entry of significant amounts of air via this type of line constitutes what is called a “never event” and should not occur in the exercise of due care. The presence of the air was significant because it was identified in the left side of the baby’s heart. In order for the air to cross from the venous circulation to the arterial circulation, there needed to be an anatomical variant common in newborns known as a patent foramen ovale, a tiny hole in the septum of the heart that is open during pregnancy and generally closes shortly following the delivery. Coincidentally, it was later learned that the minor-plaintiff indeed had a patent foramen ovale. The presence of the air on the left side of the heart permitted access to the arterial circulation and, hence, the infant’s brain. Additional experts were expected to testify that the hypoxic injuries to the baby’s brain were caused both by the protracted cardiac arrest and resuscitative efforts as well as the presence of air that was seen not only in the left side of the heart, but also escaping up into the ascending aorta.
Following the taking of extensive “high tech” deposition testimony of numerous defendants and witnesses, the case was mediated on two occasions without success. Following additional depositions, the parties were able to arrive at a settlement that is reportedly one of the highest ever in this particular venue.