A $17 Million Verdict for a Baby Who Was Not Breathing at Birth Became $1.75 Million. The Eighth Circuit Affirmed the Cut and Refused to Retry It.
After trial: Final. The jury returned $17,000,000 in August 2015 after a nine-day trial in the District of Nebraska before Chief Judge Laurie Smith Camp; the district court reduced it to the Neb. Rev. Stat. section 44-2825 cap for a 2012 occurrence, and the Eighth Circuit affirmed on 22 June 2017 in Nos. 16-1022 and 16-1024, reported as Schmidt v. Ramsey, 860 F.3d 1038, upholding both the reduction and the refusal to retry. The applicable tier is 2004 to 2014, $1,750,000 in total, of which the hospital's own exposure was $500,000 and the state Excess Liability Fund paid the balance, which is why the State of Nebraska intervened and an insurer appeared as amicus for the defence. The Eighth Circuit described the reduction as cutting the verdict by almost 90 percent. Nebraska's medical-malpractice cap is unlike almost any other, and it is the reason three of these figures look small beside their verdicts. Neb. Rev. Stat. section 44-2825 caps TOTAL damages, economic included, not just non-economic damages: $1,250,000 for 1993 to 2003, $1,750,000 for 2004 to 2014, and $2,250,000 for occurrences on or after 1 January 2015. The provider's own layer is capped below that and the state Excess Liability Fund pays the balance, which is why the State of Nebraska appears as an intervenor in these cases. Nebraska also bars punitive damages outright as unconstitutional under article VII section 5 of its constitution, so no Nebraska award contains a punitive component to strip out.
Won by Cullan & Cullan LLC.
A child was born at Bellevue Medical Center in November 2012 after a long labour and was not breathing at birth. She survived with severe brain damage and by trial could not walk or talk and had limited vision. A federal jury awarded $17 million. The statutory cap reduced it to $1.75 million and the Eighth Circuit affirmed.
What happened
A child was born on 2 November 2012 at Bellevue Medical Center in Nebraska, after a long labour. She was not breathing at birth.
She survived with severe brain damage. By the time of trial she could not walk or talk and had limited vision. The damages case was built around what the rest of her life would cost: lifetime physical therapy, occupational therapy, medical care, equipment and nursing.
The claims that went to trial focused on the negligence of two of the hospital's nurses. Her counsel characterised the care as a global abandonment of a patient.
The case was in federal court for an ordinary reason: the family had moved to Colorado for the child's treatment before suit was filed.
After a nine-day trial before Chief Judge Laurie Smith Camp, the jury deliberated about three hours and returned $17,000,000 in August 2015.
The district court reduced it to $1,750,000.
The occurrence was in 2012, which puts it in the tier of Nebraska's cap running from 2004 to 2014: $1,750,000 in total. Of that, the hospital's own exposure was capped at $500,000 and the state Excess Liability Fund paid the balance. That is why the State of Nebraska intervened in the case and why an insurer filed as amicus on the defence side. The plaintiffs challenged the cap's constitutionality, with Robert S. Peck of the Center for Constitutional Litigation arguing that point.
On 22 June 2017 the Eighth Circuit affirmed, upholding both the reduction and the refusal to retry the case. It is final.
The family was represented by Joseph and Patrick Cullan of Cullan and Cullan in Omaha, with Robert S. Peck on the constitutional challenge. The child is identified only by initials, as the court identified her.
Sources
This account is drawn from contemporaneous public reporting and the court record.
- 1.Schmidt v. Ramsey, 860 F.3d 1038 (8th Cir. 22 June 2017), Nos. 16-1022 and 16-1024: the caption 'S.S., a minor, by and through her mother and next friend Doran Schmidt v. Heather Ramsey, APRN-CNM; Midwives Place LLC; Bellevue Medical Center L.L.C.; State of Nebraska, Intervenor', the affirmance of the reduction to the statutory cap and of the refusal to retry, the description of the verdict being cut by almost 90 percent to $1.75 million, and the counsel block reading 'Joseph Cullan, Patrick Cullan, CULLAN & CULLAN, Omaha, NE, Robert S. Peck, CENTER FOR CONSTITUTIONAL LITIGATION, Fairfax Station, VA, for Plaintiff-Appellant'
- 2.Neb. Rev. Stat. section 44-2825, the total-damages cap, its 2004 to 2014 tier of $1,750,000, the provider layer and the Excess Liability Fund
More proven verdicts from Cullan & Cullan LLC
All Cullan & Cullan LLC proven verdicts →A Jackson County jury awarded a Kansas City-area family $25.4 million after finding an OB-GYN's improper supervision and excessive Pitocin use during delivery caused their daughter's cerebral palsy, though the verdict was reduced to a final judgment of $20,824,653 under Missouri's statutory cap on noneconomic damages in medical malpractice cases.
Billy Moyle, 24, was driving behind a Mack concrete truck on US Highway 75 near Nebraska City on Halloween 2012. The truck moved into the left turn lane and then turned right across his path, running his pickup off the road. He suffered a broken vertebra and a partially severed spinal cord.
At about eleven months old, a child suffered brain trauma in an accidental fall at day care, was taken to a hospital in Omaha and discharged without adequate management of her seizures. The seizures continued and caused permanent brain damage. The jury awarded $26.1 million. The statutory cap reduced it to $2.25 million.
A family alleged that negligent management of prenatal care during a 1993 pregnancy caused their son's brain injury. The jury awarded $5,625,000 against an obstetrician and her practice. The statutory cap reduced it to $1,250,000, and the Nebraska Supreme Court affirmed against a five-ground constitutional challenge.
Related medical malpractice verdicts
A Utah judge entered a $951 million default judgment against Steward Health Care after newly trained nurses, an excessive Pitocin drip, and a delayed C-section at Jordan Valley Medical Center left a newborn permanently brain damaged.
A Gainesville jury awarded $900 million, including $700 million in punitive damages, to stroke survivor Joseph Webb over neglect at the University Place Care and Rehabilitation Center, in a Wilkes & McHugh case tried against defaulted Trans Healthcare entities with no defense present, but Florida's First District Court of Appeal reversed the judgment in 2013 because the trial court had refused to let a defense lawyer appear, and the money was never collected; the estate's claim was later resolved for a small share of a multi-estate bankruptcy settlement.
A Clark County jury ordered Health Plan of Nevada and Sierra Health Services to pay $524 million after finding the UnitedHealth Group subsidiaries negligently credentialed a gastroenterologist whose unsafe injection practices at his Las Vegas endoscopy clinics caused the largest medically caused hepatitis C outbreak in American history.
A Kansas City jury awarded ovarian cancer patient Georgia Hayes $225 million in compensatory damages and $2 billion in punitive damages against pharmacist Robert Courtney, who had diluted chemotherapy drugs for profit. The trial judge later reduced the award to roughly $330 million, and Hayes collected almost nothing from Courtney himself, whose assets had been seized by the federal government. Courtney was sentenced to 30 years in federal prison, and drug makers Eli Lilly and Bristol-Myers Squibb later paid $71 million to settle victims' claims.