Greene County Jury Awards $4.82 Million for Birth Brain Injury After Doctors Skipped Fetal Monitoring
After trial: The trial court cut the non-economic award to the $350,000 cap under section 538.210. On July 31, 2012 the Missouri Supreme Court held the cap violated the right to a jury trial and reversed the payment schedule, so the jury's full award stands.
Won by Johnson, Vorhees & Martucci and 1 other firm.
A Greene County jury found three doctors and Lester E. Cox Medical Centers liable after a mother who reported reduced fetal movement was sent home without fetal monitoring, and her son was born with severe brain damage and cerebral palsy. The jury awarded $1.45 million in non-economic damages and about $3.37 million in future medical expenses. The trial court cut the non-economic award to the statutory cap, but the Missouri Supreme Court struck the cap in 2012 and the full verdict stood.
What happened
On October 30, 2006, a Springfield, Missouri, woman at 39 weeks of pregnancy told the staff at Lester E. Cox Medical Centers that her baby was moving less than usual. A family medicine resident, Dr. Melissa Herrman, saw her. According to the trial evidence reported by Missouri Lawyers Media, Herrman did not place a fetal heart monitor on the mother and did not ask the supervising physician, Dr. William Kelly, to examine her.
Two days later the mother found that the baby was not moving at all and went back to the hospital. Dr. Matthew Green ordered an emergency cesarean section. The boy was born with severe brain damage and cerebral palsy. Doctors later found that a clotting problem had probably cut off oxygen to his brain for days or weeks before birth.
The family sued the medical center, Herrman, Kelly and Green in Greene County Circuit Court. Roger Johnson and Scott Vorhees of Johnson, Vorhees & Martucci in Joplin tried the case for the family. Kent Hyde and David Overby of Hyde, Love & Overby in Springfield defended. Plaintiff's experts in maternal-fetal medicine, pediatric neurology, neuroradiology and placental pathology testified that a prompt emergency cesarean on October 30 would have prevented the injury. The defense argued that the brain injury had happened before that visit and pointed to joint contractures present at birth. Johnson answered that the contractures were mild and that the experts found no literature tying them to the timing of a brain injury.
After about seven hours of deliberation in the spring of 2011, the jury returned a verdict against the three doctors and the medical center before Judge J. Dan Conklin. It awarded $1.45 million in non-economic damages and about $3.37 million for future medical expenses, for a total of roughly $4.82 million.
The judgment did not stay at that figure at first. Under the 2005 medical malpractice law, the trial court cut the non-economic award to the $350,000 statutory cap and approved a periodic payment schedule for the future medical award. The family appealed, and Andre Mura of the Center for Constitutional Litigation in Washington joined Johnson on the constitutional questions. The Missouri Attorney General's office defended the statute.
On July 31, 2012, the Missouri Supreme Court ruled for the family. It held that applying the cap to the jury's non-economic award violated the right to a jury trial under the Missouri Constitution, and in doing so it overturned its own 1992 decision in Adams v. Children's Mercy Hospital, which had upheld an earlier cap. The court also reversed the payment schedule because it did not assure the family full recovery, affirmed the judgment in all other respects, and sent the case back to the trial court to set a new schedule. Missouri Lawyers Media named Johnson an Influential Appellate Advocate for the result.
Sources
This account is drawn from contemporaneous public reporting and the court record.
- 1.Missouri Lawyers Media, 'Jury awards nearly $5M in birth injury trial', May 8, 2011
- 2.Missouri Lawyers Media, 'Roger Johnson, Influential Appellate Advocate', Jan. 28, 2013·Archived copy
- 3.Missouri Lawyers Media, 'Sanders v. Ahmed and Watts v. Cox Medical Center, pending appeals', Oct. 24, 2011
- 4.St. Louis Public Radio, 'Mo. Supreme Court throws out caps on medical malpractice', July 31, 2012·Archived copy
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