Essex County Jury Awards $18.5 Million for a Delayed C-Section at Newark Beth Israel That Left a Boy With Cerebral Palsy
After trial: A high-low agreement placed during deliberations capped the recovery at $16.75 million, which the family received; the agreement foreclosed any appeal.
Won by Mazie Slater Katz & Freeman, LLC.
A boy born at Newark Beth Israel Medical Center in 1998 developed cerebral palsy after doctors waited too long to perform a cesarean section despite clear signs of fetal distress. In April 2010, an Essex County jury awarded $18.5 million, and the family recovered $16.75 million under a high-low agreement reached during deliberations.
What happened
The boy was born at Newark Beth Israel Medical Center in Newark on April 20, 1998. In the early morning hours, his mother's fetal monitor showed trouble. The evidence at trial established that signs of distress were visible after 12:42 a.m., and that a cesarean section performed by around 1 a.m. would have delivered him safely. The operation came about twenty minutes after that window closed. The delay deprived him of oxygen. He was left with cerebral palsy and spastic quadriplegia, and with a need for care that will last the rest of his life.
His mother died in 2004. His great-aunt, Darlene Kim of Edison, became his guardian and pursued the case on his behalf, which is why the lawsuit entered the Essex County docket as Kim v. Newark Beth Israel Medical Center. The complaint alleged that Dr. Joan Lieser, an obstetrician working at the hospital as a part-time contract physician, and a hospital resident failed to act on the fetal distress and order a timely cesarean.
David Mazie of Mazie Slater Katz & Freeman tried the case before Judge Thomas Vena in the Superior Court of New Jersey. On April 29, 2010, the jury found Dr. Lieser liable and returned a verdict of $18.5 million: $16.6 million for future care, $1.5 million for lost wages, $167,000 for past care costs, and $250,000 for pain and suffering.
The verdict sheet was only half the story. Dr. Lieser carried $1 million in malpractice coverage. If she had been treated as an independent contractor, most of the award could have been uncollectable against her alone. Instead, the plaintiff benefited from a finding that she was an employee of the hospital and covered by its insurance, which is why the New Jersey Law Journal reported the result under the headline that the hospital would bear the brunt of the obstetrician's malpractice.
While the jury was still deliberating, the parties placed a high-low agreement on the record with Judge Vena. It guaranteed the family at least $5.5 million no matter what the jury decided, and capped the recovery at $16.75 million. When the verdict came in above the ceiling, the agreement controlled. The case resolved at $16.75 million, a figure later confirmed in a New Jersey court opinion that cited the verdict and its breakdown. Because both sides had bound themselves to the high-low, there was no appeal to threaten or delay the recovery.
The money was awarded for a lifetime of care: the therapy, equipment, and constant supervision that spastic quadriplegia demands. The jury returned its verdict nine days after the boy's twelfth birthday.
Sources
This account is drawn from contemporaneous public reporting and the court record.
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