$21.24 Million Judgment Against Kansas Obstetrician for Brain Injury to Twin at Birth

On December 26, 1984, twins were born at Central Kansas Medical Center in Larned, Kansas. Dr. Nasreen Shah, an obstetrician, had treated the mother through the pregnancy and delivered both babies. The mother had preeclampsia, a disease of pregnancy often marked by high blood pressure, swelling and protein in the urine, and she showed those warning signs before she was admitted for delivery.

The twins presented breech, and the breech twin was delivered first. The second-born child was in respiratory distress from the moment of birth and was transferred to another facility. She went on to develop epilepsy, cerebral palsy, intellectual disability, cortical blindness and an abnormally small head.

The family sued Dr. Shah and the hospital in federal court in Kansas. Their claims centered on the care during labor and delivery. An electronic fetal heart monitor was available at the hospital, but its printer was malfunctioning, so no monitor strip was produced to show how the second twin was doing before delivery. The hospital settled with the family before trial, on terms that were not disclosed, and the case went to a jury against Dr. Shah.

The jury returned a special verdict. It assessed 90 percent of the fault to Dr. Shah and 10 percent to the hospital, with total damages in excess of $23 million. Judgment was entered against Dr. Shah for her 90 percent share: $21,244,824.90.

Dr. Shah appealed to the Tenth Circuit. She argued that the jury instructions let the jury find the hospital negligent without enough support, that the court wrongly told the jury to hold her to the standard of an obstetrics specialist, and that an instruction on the common knowledge exception was improper. The court rejected each point. It found the instructions adequate on the hospital theories that had evidence behind them, saw no plain error in the specialist standard, and noted that Dr. Shah had proposed the common knowledge instruction herself. On June 28, 1993, it affirmed the judgment in full.

The plaintiffs were represented on appeal by Randall E. Fisher, with Mark B. Hutton and Donald McKinney on the brief, of Michaud, Hutton & Bradshaw in Wichita. Dr. Shah was represented by William Tinker, Jr. and John E. Cowles of Wichita.

The family then sued the Kansas Health Care Stabilization Fund, which had insured Dr. Shah, claiming it failed to settle in good faith. When that dispute reached the Kansas Supreme Court in 1995, Derek S. Casey and Chan P. Townsley of Hutton & Hutton were on the plaintiffs' briefs with Fisher. The court held that Kansas law did not allow a bad faith claim against the Fund beyond its statutory limit, and the Tenth Circuit later affirmed the dismissal of the family's remaining claims.