$53M verdict for birth injury

Update: A correction was made to this story to include sole practitioner Holly S. Karris as one of the attorneys who helped to secure the record amount medical-malpractice award.

A Cook County jury on Wednesday awarded $53 million to a young boy who was born with a severe brain injury after suffering 12 hours of fetal distress during delivery.

The award came after a monthlong trial before Cook County Circuit Judge John P. Kirby in 12-year-old Isaiah Ewing’s medical-malpractice case. Isaiah’s guardian sued the University of Chicago Medical Center in December 2013, alleging his mother Lisa’s physicians failed to recognize signs of distress and order an emergency cesarean section during her labor and delivery in 2004.

Geoffrey Fieger, a trial lawyer with Fieger Law in Southfield, Mich., represented Isaiah under Supreme Court Rule 707 along with Jack Beam and Doug Raymond, partners at Beam & Raymond.

The amount is the highest reported for a plaintiff in a birth injury case in Cook County. It’s just short of the medical-malpractice record of $55,439,270 secured in 2000 by attorneys with Power, Rogers & Smith P.C. and sole practitioner Holly S. Karris, according to John L. Kirkton of the Jury Verdict Reporter — a division of Law Bulletin Publishing Company.

Lisa Ewing visited the University of Chicago Medical Center in April 2004 to deliver her unborn child after a full 40-week pregnancy, but she noticed earlier that the baby wasn’t moving as much as earlier in the pregnancy — a sign of fetal distress, Fieger said.

“Unfortunately, she came in at 2 a.m. in the morning, and the University of Chicago is run by student residents at that time,” he said. “Student residents were either busy, asleep or totally unable to handle anything that resembled an emergency.”

All of the tests conducted on Ewing and her unborn fetus “immediately” showed that Isaiah was in fetal distress — including a heart-rate monitor that “was bad, and it never got better,” Fieger said. However, Ewing continued to lay in her hospital bed without receiving any meaningful help from hospital staff, he said.

“For 12 hours, Lisa laid in that hospital basically unattended by doctors while Isaiah suffocated,” Fieger said. “At about 12:40 … the doctors realized that Isaiah needed to come out, and even then, they waited another hour before they performed a C-section.”

Isaiah was not breathing when he was delivered, Fieger said, so physicians rushed him to the neonatal intensive care unit where he was revived, placed on life support and remained in critical care for another four weeks.

Isaiah suffered from a lack of oxygen to his brain and now lives with cerebral palsy. He also needs around-the-clock care, primarily provided by his mother, because he cannot perform basic tasks such as bathing, dressing and eating.

The hospital doctors diagnosed the cause of Isaiah’s brain injury as hypoxia, but they never told his mother who was responsible for causing the injury and later contended the injury was caused by a completely different condition, Fieger said.

The medical center was represented by Lowis & Gellen LLP partners Pamela L. Gellen, Jennifer A. Lowis and associate Bryan C. Larsen. The firm deferred comment to the medical center.

“We have great sympathy for Isaiah Ewing and his family. We strongly disagree with the jury’s verdict and believe Mr. Fieger’s conduct influenced the decision,” the medical center said in a prepared statement. “Our mission has and always will be to give the best care possible. We trust the judicial system and wholeheartedly support the doctors and nurses who are committed to our patients and work tirelessly to help sick or injured children every day.”

According to the medical center’s statement, the defense presented experts that demonstrated Lisa Ewing and Isaiah were treated for infection, that infection is a recognized cause of cerebral palsy, Isaiah was born with normal blood oxygen levels and his injury occurred before the care that Fieger criticized.

But Fieger largely dismissed the defense’s theory.

“All of the medical records at the University of Chicago neonatal clinic showed that Isaiah had been suffocated at birth — that he had suffered hypoxia, a lack of oxygen,” Fieger said. “Every doctor that’s ever seen Isaiah for the last 12 years has diagnosed him with the same thing — asphyxia, birth asphyxia — and yet the three lawyers from the University of Chicago had the temerity to come into court and claim that the records were wrong and that it was a secret infection.”

The parties did not engage in any mediations or pretrial conferences before heading into trial on June 1 because the medical center “refused” to engage in settlement talks, Fieger said.

“The University of Chicago didn’t want to resolve this case for one reason, and one reason only — money,” he said. “They don’t want to pay. They don’t care that Isaiah’s brain damage will have to be cared for the rest of his life. They would rather have the taxpayers of the state of Illinois and Cook County pay for Isaiah than have them pay for it.”

Reached for comment on Friday, assistant general counsel Catherine Garvey challenged Fieger’s statement.

“We asked them to provide a good faith settlement demand and in fact had to file a motion to file a good faith settlement demand, which Judge Kirby ruled upon,” she said. “Negotiations happened before the trial and during the trial.”

After four hours of deliberation, the jury awarded Isaiah $2,770,400 million for disfigurement, $2,770,400 for loss of a normal life, $2,770,400 for shortened life expectancy, $2,770,400 for past and future pain and suffering, past and future emotional distress, $2,770,400, $346,000 for past medical expenses, $7.25 million for future medical expenses, $28,852,000 for future caretaking expenses and $2.7 million for future loss of earning capacity.

It’s a significant award, but Fieger said the jury’s verdict “is not a windfall.”

“This is what it will take to care for Isaiah 24 hours a day for the next 64.8 years,” he said.

Ewing said while she’s still trying to absorb Wednesday’s trial result, she is thankful for the verdict.

“Like I’ve always said in the beginning, this is my son. Whether I had the money to take care of him or not, I was going to do what I had to do,” she said. “But it is a blessing to know that when I’m no longer here, he’s still going to be cared for.”

However, the case will remain open for at least another week and a half, as the parties are set to appear before Kirby again on July 12.

“Judge Kirby declined to enter judgment on the verdict, as there are pending motions for mistrial based on assertions of Mr. Fieger’s improper conduct,” Garvey said.

The case is Isaiah Ewing v. University of Chicago Medical Center, 13 L 13750.