Jury returns $10.8 Million Verdict in Cerebral Palsy Lawsuit Tried by Paulson & Nace Paulson & Nace, PLLC obtained a $10.8 million jury verdict against Raleigh General Hospital (Beckley, West Virginia) and the United States of America on behalf of a child who developed cerebral palsy as a result of oxygen deprivation at the time of birth.

Paulson & Nace partners Barry J. Nace and Matthew A. Nace worked on the case for years, but the trial was delayed by the pandemic. Partner Christopher T. Nace joined Barry Nace in trying the case before the jury – one of the first jury trials to take place in West Virginia since before the pandemic.

The case – Hysell v. Raleigh General Hospital, et al – was brought under the Federal Tort Claims Act (FTCA) because a midwife whose care was at issue was employed by Access Health, a clinic that receives funding from the federal government.

Background

In 2010, Mrs. Hysell gave birth to a baby girl with an Apgar score of 7/8, but who also presented with irregular breathing, poor movement, and blue limbs. The midwife who delivered the baby was on her 3rd delivery of the day. The Hysells testified that they heard the midwife say something about having to push the baby back inside Mrs. Hysell because the umbilical cord was preventing a safe exit for the child.

After the baby was born, she was taken from the delivery room to the nursery, and she was not returned for four hours. This was in direct conflict with hospital policy for breastfeeding, and no answer was ever given about why the child was taken away for so long without explanation.

Over the course of the next 16 months, the Hysells cared for their daughter, but they noticed she wasn’t reaching milestones, and so they scheduled an MRI. When the MRI results came back “normal,” specialists were brought in, and genetic tests were done. Those tests came back negative.

Things did not get better, so the Hysells scheduled another MRI when their daughter was about 4.5 years old. This test clearly showed white matter damage and loss of volume. The neurologist then looked at the first MRI and determined that it had been misread, and that “she had abnormalities in the brain likely caused by hypoxia at birth.” Had the original MRI been read correctly, multiple misdiagnoses – from autism to microcephaly to genetic defects – may have been avoided, meaning the Hysells may have learned what truly happened to the daughter much sooner.

Hysell v. Raleigh General Hospital et al

The misreading of the MRI result was not relevant to the claim of negligence against Raleigh General Hospital or the USA, but the arguments regarding the diagnosis were. The plaintiffs conceded the child may have had autism, but that wasn’t what was causing the global developmental delays and severe cognitive dysfunction she experienced. It was clear the global developmental delay was caused by oxygen deprivation, and that it was the result of medical negligence.

The Plaintiffs presented expert testimony from a midwife, a nurse, a pediatrician, a neuroradiologist, and a pediatric developmental physician, all of whom helped build a case that the hypoxia suffered by the Hysells’ baby could have only happened at the time of delivery. Paulson & Nace was able to rebut the defense’s multiple misrepresentations about the case by actually showing transcript testimony of witnesses that was directly contrary to what they used in their closing.

The defense argued that the periventricular leukomalacia shown in the MRIs was the kind that did not happen in term infants. Their medical expert testified unequivocally that term babies did not have this kind of brain damage. Barry Nace was able to get him to admit on cross-examination that it could happen as much as 25% of the time.

At trial, the defense presented expert testimony that the child suffered, at most, $300,000 in damages, sticking to their claim of autism. Anticipating this, Paulson & Nace spent time with the plaintiffs’ damages experts – a life care planner and an economist – explaining how the jury could remove items from the life care plan if they thought something was not appropriate or was more likely related to autism. The plaintiffs made a special push to empower the jury to give this little girl what they believed was necessary for a lifetime with cerebral palsy.

In the end, the jury sided with the Hysells, awarding the child $1 million for pain and suffering, $9 million for future care, and additional compensation for loss of earning capacity. The jury assigned 70% liability to Raleigh General and 30% liability to Access Health.

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