Verdict & Settlement Wins
Put Your Accident Behind You
Court: Montgomery County, Dayton, Ohio
Plaintiff's Counsel: Pamela Pantages, Jeffrey M. Heller
Mother and Son Receive $2.75 Million in Birth Injury Case
Matthew Harrison was born on February 9, 2007. He was a term baby after an uncomplicated prenatal course. All available evidence suggested that he was a healthy, normal baby.
His mother, Maurita Henry, went into labor on February 8, 2007. Her obstetrician was Defendant Andre Harris, M.D. Dr. Harris had finished his obstetric residency training and opened his new practice on July 5, 2006. Maurita’s last menstrual period was in May 2006, and her first prenatal visit with Dr. Harris was on July 10, 2006. Her due date was February 11, 2007.
After arriving at Dayton’s Miami Valley Hospital around 5 p.m., Maurita’s labor proceeded uneventfully. She had epidural anesthesia for pain and low-dose Pitocin to augment her contractions. Dr. Harris ordered an internal uterine pressure catheter to more accurately monitor the contraction pattern.
Around 1:20 a.m., Maurita was completely dilated. Nurses called Dr. Harris to the bedside and Maurita began pushing. Shortly thereafter, Matthew had some late fetal heart decelerations, suggesting that he was not tolerating the pushing phase well.
At trial, the obstetric experts all agreed that Matthew needed to be delivered by either vacuum extraction or cesarean. Dr. Harris chose the vacuum without consulting Maurita.
This is where the malpractice begins. All the testifying obstetricians, including Dr. Harris, agreed that obstetricians are taught in their training the 3 pop-off/20-minute safety rule. After 3 pop-offs in 20 minutes, the delivering obstetrician is required to abandon the vacuum and deliver by cesarean.
Maurita and Matthew’s Miami Valley Hospital records clearly state in multiple locations 5 pop-offs over 23 minutes, including Dr. Harris’s narrative delivery summary and the Miami Valley vacuum checklist.
At his deposition, 7 years after the delivery, Dr. Harris claimed for the first time that only 3 pop-offs counted because 2 pop-offs were poor seals due to Matthew’s head of hair. There is no independent documentation.
A 2-minute shoulder dystocia immediately followed the 5th pop-off. Dr. Harris admitted using downward traction on Matthew’s head during unsuccessful McRoberts maneuver and suprapubic pressure. Ultimately, Dr. Harris delivered the posterior arm. Matthew had Apgar scores of 1, 3 and 6. His right (anterior) arm was flail. A skull X-ray revealed head swelling, cephalohematoma, and shifting of the skull bones.
Matthew began treatment at the Cincinnati Children’s brachial plexus clinic. An EMG at 2 months of life demonstrated complete signal loss at C5, and abnormal signals at C6 and C7. The physician interpreting the EMG concluded that it was consistent with a “probable avulsion” at C5 and a possible/partial avulsion at C6. Another physician on Matthew’s team concluded that his physical exam corroborated the EMG findings.
Some middle and lower trunk recovery occurred over the next several months, so a scheduled primary nerve grafting surgery was canceled out of fear that it would do more harm than good. Eventually, Matthew’s doctors determined that his upper trunk progress was not reassuring, so Matthew underwent a nerve transfer in his right shoulder. The surgery resulted in modest improvement, but C5’s muscle groups never improved and became wasted and disfigured over time. Currently, Matthew’s right shoulder and arm are markedly smaller, shorter, and contracted compared to his left shoulder and arm.
Plaintiffs’ obstetric and pediatric neurology experts concluded that Matthew’s appearance and function are consistent with a total avulsion at C5, meaning that the nerve root was pulled out of the spinal cord similar to a plug out of a wall socket. Plaintiffs’ obstetric expert was critical of Dr. Harris because he violated the 3 pop-off/20-minute safety rule, and because he used excessive downward traction while Matthew’s right shoulder was still stuck.
The defense obstetric and pediatric neurology experts agreed with the Plaintiffs’ experts that an avulsion in a healthy normal baby is irrefutable evidence of malpractice.
Other than having only 3 “true” pop-offs, the defense in the case was that Dr. Harris denied excessive traction, that there was not an avulsion in light of Matthew’s recovery over the years, and that maternal forces of labor are powerful enough to cause a permanent brachial plexus injury even in the context of a normal contraction pattern, minimal pushing, and an otherwise healthy baby.
On cross examination, the defense obstetric expert testified that if there were 5 true pop-offs, that finding was consistent with cephalopelvic disproportion (CPD), and evidence of a baby not meant to fit through his mother’s pelvis. He admitted that if there were 5 true pop-offs, Matthew was probably a CPD baby, and Dr. Harris’s persistence with the vacuum likely caused the shoulder dystocia.
Based upon the jury’s interrogatory responses, they concluded that Dr. Harris’s violation of the 3 pop-off safety rule caused the shoulder dystocia and exposed Matthew to an unnecessary risk of injury.
After nearly 4 hours of deliberation, the jury compensated Matthew $1.5 million for his cost of future care and reduced earning capacity, $750,000 for his pain and suffering, and $500,000 to his mother for her loss of consortium claim. There was no offer before trial. The trial judge was the Honorable Mary Wiseman. The Harrison verdict is among the highest plaintiff’s verdicts in her courtroom.
The experts in the case were obstetrician Marc Englebert, M.D.; pediatric neurologist Daniel Adler, M.D.; life care planner Maryanne Cline, RN; vocational rehab specialist John Pullman; and economist John Burke, Ph.D.
The defense experts were perinatologist Frank Manning, M.D.; pediatric neurologist Michael Noetzel, M.D.; and Michelle Grimm.