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$26.5 Million Verdict for Improper Fetal Monitoring During Labor and a Delayed Caesarean Section

A Boston jury recently awarded $26.5 million to a 10 year old child who was injured at birth because of two doctors’ failure to recognize fetal distress during labor and their delay in carrying out an emergency ceasarean section. Jose Bejarano, Jr. is a severly handicapped child with devastating cerebral palsy and mental retardation. He requires a feeding tube and around-the-clock nursing care for the remainder of his life. Although the child cannot talk, the family insists that he is able to express pain and happiness through his eyes. The award will assist the family in providing all the medical and nursing care that this unfortunate child will require. This verdict is thought to be one of the largest in Massachusetts history and is the biggest verdict in 2007.

The verdict for the Bejarano family was against two obstetrical physicians (OB/GYN) who provided care at Brigham and Women’s Hospital, which is affiliated with Harvard Medical School. Although the negligent care was provided over 10 years ago, because Jose Bejarano was a minor, his statute of limitations (the length of time during which he is permitted to file a lawsuit) extends until his 20th birthday. This is identical to the law in Pennsylvania, which permits minors to bring a lawsuit for their injuries until they reach their 20th birthday (until they become an adult at age 18 and then 2 additional years).

Verdicts of this size are unusual even in medical negligence cases involving horribly injured individuals. Two factors are the predominant determinents of a verdict’s size. First, the amount of money that will be needed to provide proper medical and nursing care to the injured person for the remainder of their life is the single most imprtant factor to the size of a verdict. Children who have long life-spans left ahead of them and have high yearly costs for feeding tubes and nursing care, such as in this case, have very large economic damages. These damages are quantifiable and are presented to the jury. I have been involved in cases where the future medical expenses for a child have been estimated in excess of $40 million dollars. The second factor having the greatest impact on a verdict is the length and amount of pain and suffering that an injured person endures. When there is horrible suffering for long periods of time, juries are more likely to award very significant non-economic damages. This case demonstrates how economic and non-economic damages can combine to sometimes create extremely large jury awards. However, the overwhelming majority of awards and settlements are considerably smaller then in this case. Additionally, this family will likely get only a very small portion of the $26.6 million award because there is likely not enough insurance coverage to pay this large verdict. Getting the verdict is only one issue in the battle to actually get paid the money.

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