$9.75 Million for Cerebral Palsy Caused by Medical Malpractice in the NICU
A Camden County Judge approved a $9.5 million settlement for RD’s client, an eight-year-old girl who sustained significant brain injuries just weeks after her premature birth at a hospital in South Jersey. It was the 5th largest settlement in New Jersey for 2020. The infant was 14 days old and being treated in the NICU when the alleged malpractice occurred. At that point, the premature but stable infant began to develop a rash on her left arm. The rash was initially diagnosed as a baby rash but two days later, herpes simplex virus was suspected and an anti-viral medication started pending the results of PCR testing from samples obtained at the treating hospital but sent to an outside hospital lab for testing. The herpes simplex virus is known to be especially devastating to infants if immediate anti-viral treatment is not initiated. Plaintiff alleged that the devastating injuries resulted from a tragic miscommunication of a critical laboratory test that was incorrectly entered into the treating hospital’s electronic medical record as negative (when it was actually positive), and then relied upon by the neonatology team to discontinue the anti-viral drug that would have likely cured an early stage herpes simplex virus in the infant before it caused brain damage. Compounding matters was the failure of the NICU team to verify the actual laboratory test result from testing laboratory and their decision to discontinue the anti-viral drug without knowing the results of two additional PCR laboratory test samples that were completed and timely reported by the testing hospital but for reasons unknown, never recorded into the electronic medical record of the treating hospital. These tragic errors resulted in the delayed and incomplete treatment of the herpes simplex virus allowing the virus to penetrate the infant’s brain over the next 14 days resulting in herpes encephalopathy, cerebral palsy, and a grave prognosis for her future life. The infant was only 16 days old when the alleged malpractice occurred.
Lou DeVoto handled the case for Rossetti & DeVoto, PC. Plaintiff sued the treating hospital and its laboratory assistant for negligence in entering the wrong result and sued members of the NICU clinical team for discontinuing the anti-viral drug before obtaining all of the test results. In addition, plaintiff alleged that the herpes simplex virus should have been diagnosed by doctors two days earlier than it was, and if that had been done, the chances of successful treatment would have been greatly increased, as the virus would have even been less likely to have spread to the infant’s brain.
Plaintiff’s experts relied heavily upon two negative ultrasound tests that showed no brain damage having occurred prior to the start of the anti-viral drug. “Our experts determined that had the herpes virus been diagnosed and treated two days earlier, when the first signs of herpetic rash appeared on the infants arm, the virus would not have spread to the infant’s brain and this tragic outcome would have been avoided.”
All defendants denied liability and causation. They that the injuries sustained by the infant were related to prematurity and an in utero infection and even if caused by the herpes simplex, she would likely have had an extremely poor neurological result citing poor statistical outcomes in studies from peer-reviewed journals even with timely and complete anti-viral treatment.
RD was able to counter the defense by producing more recent and significant peer reviewed studies showing much better statistical outcomes in infants who received a higher and longer dose of the anti-viral drug therapy, especially when it was administered in a timely manner.
The child is now 9 years old, wheel chair bound and in need of life long care. She is being cared for by her 75-year-old grandmother who became her legal guardian in 2015 when both parents lost custody due to addiction. She has made significant progress in her rehabilitation and while non-verbal, does understand her surroundings and is able to make her needs known in other ways, including by computer. A Special Needs Trust was established for the infant that will provide for her life-long needs. Said DeVoto: “We are extremely satisfied knowing that our client will now have the much needed medical and financial resources to make her life more enjoyable and productive and to hopefully maximize her quality of life well into the future.”