$22.5 Million After a Six-Week-Old Was Left Permanently Brain Damaged During Routine Spinal Surgery
After trial: The settlement was paid through Wisconsin's Injured Patients and Families Compensation Fund, the second largest payment in that fund's recorded history. Most of the money was placed in two accounts for the child's lifetime care.
Won by Habush Habush & Rottier S.C..
A Fitchburg family recovered $22.5 million after their six-week-old son suffered permanent brain damage during surgery at UW Health's American Family Children's Hospital. The suit alleged an anesthesia resident failed to respond to prolonged low blood pressure readings. It is the second largest payment ever made by Wisconsin's Injured Patients and Families Compensation Fund.
What happened
In April 2016 a six-week-old boy was brought to the American Family Children's Hospital in Madison for surgery to correct a tethered spinal cord, a condition in which the cord attaches to surrounding tissue instead of moving freely inside the spinal canal. Left alone it causes progressive neurological damage as a child grows. Corrected early, the outlook is good.
The surgery itself went as intended. What happened to the child under anesthesia did not.
The family's lawsuit, filed in Dane County Circuit Court, alleged that Dr. Michael Chalifoux, the anesthesia resident on the case, failed to respond appropriately to prolonged low blood pressure readings during the procedure. Blood pressure is what pushes oxygenated blood into the brain. In an infant, whose margin for error is far narrower than an adult's, a sustained drop is an emergency, and the anesthesia record is where it is supposed to be caught.
The boy came out of surgery with brain damage from oxygen deprivation. By the time the case resolved he was three years old and could not walk, speak, or see. The medical projection presented in the case was that he would function at roughly the level of a two-year-old for the remainder of his life.
Dan Rottier of Habush Habush and Rottier represented the family. The case settled in 2019 for $22.5 million, paid through Wisconsin's Injured Patients and Families Compensation Fund, the state pool that covers medical malpractice awards above a provider's primary insurance layer. According to state records going back to 1996, it was the second largest payment the fund had ever made.
Most of the money went into two accounts established for the boy's long-term care, which for a child with this level of injury is a lifetime obligation measured in decades of nursing, equipment, therapy, and housing. His parents received about $1.9 million, and roughly $4.5 million went to attorney fees.
The Wisconsin Medical Examining Board separately reprimanded the physician involved.
The child is not named here. He was an infant at the time of the injury and remains a minor.
Sources
This account is drawn from contemporaneous public reporting and the court record.
- 1.Wisconsin State Journal: independent reporting naming Dan Rottier as the family's attorney and detailing the fund payment and its distribution
- 2.TMJ4 (Milwaukee): independent local television coverage of the settlement
- 3.Becker's ASC Review: trade coverage of the anesthesia allegations and the child's prognosis
- 4.Wisconsin State Journal: independent reporting on the Medical Examining Board reprimand arising from the case
More proven verdicts from Habush Habush & Rottier S.C.
All Habush Habush & Rottier S.C. proven verdicts →Robert Habush won a $99.25 million Milwaukee County jury verdict for the widows of three ironworkers killed when the Big Blue crane collapsed at Miller Park, though the $94 million punitive portion was later vacated and the case settled for about $30 million.
A Racine County jury found Hyundai's driver-seat and head-restraint design defective and awarded Edward and Susan Vanderventer $38.1 million, the largest single-plaintiff compensatory verdict in Wisconsin history, later upheld on appeal.
A Milwaukee County jury awarded $25.3 million after emergency room providers failed to tell Ascaris Mayo that her symptoms could mean a Strep A infection, an omission that cost her all four limbs, though the Wisconsin Supreme Court later reinstated the state's $750,000 cap on noneconomic damages.
A six-year-old girl suffered cardiac arrest and permanent brain damage when a surgeon used a morcellator he had never operated during a routine spleen removal, and the case settled for $17.3 million, the largest sum reported to the Wisconsin Law Journal in 2009.
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