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CSA affirms $20.6M award in birth-injury case

A Maryland appeals court has upheld a $20.6 million award to a family whose son suffers from cerebral palsy due to complications during his birth at MedStar Harbor Hospital in Baltimore.

The Court of Special Appeals rejected the hospital’s argument that attorneys for Jaylan Norfleet and his parents, Shantiah and Joel Norfleet, had not provided legally sufficient evidence that the cerebral palsy was caused by the delivery.

A Baltimore City Circuit Court jury had awarded the family $21 million in July 2012, an amount reduced to $20.6 million due to the state’s statutory cap on non-economic damages.

In its 3-0 decision, the Court of Special Appeals said the trial came down to “a classic battle of the experts” and it was the jury’s role to decide which to believe.

Ultimately, the jury believed the family’s experts, who testified that the obstetrician’s failure to perform a prompt Cesarean section caused the complications and the cerebral palsy.

“Jaylan’s experts, each with decades of relevant professional experience, explained the sequence of events that deprived Jaylan of the reserves that normally protect fetuses during labor and left him vulnerable to the deprivation of oxygen that occurred shortly before his birth,” Judge Christopher B. Kehoe wrote in the 72-page unreported opinion the intermediate appellate panel filed Thursday afternoon.

“Certainly, [the hospital’s] experts reached conflicting conclusions,” Kehoe added. “[T’he point, however was that there was sufficient evidence from [the Norfleets’] experts to make … the question of causation in fact an issue for the jury to decide.”

H. Briggs Bedigian, a trial attorney for the Norfleets, said the court’s decision stands for the proposition that “you can’t change the facts.”

“We had enough evidence to go to a jury,” added Bedigian, now of Gilman & Bedigian LLC in Timonium. “It was a deserved win. The child deserves to be compensated.”

Bedigian was among a team of trial attorneys from his former firm, Wais, Vogelstein & Bedigian LLC (now Wais, Vogelstein & Forman LLC) in Baltimore, which remains counsel of record in the case.

The hospital’s attorney, John M. Fitzpatrick, did not return telephone and email messages seeking comment on the decision. He is with Wheeler Trigg O’Donnell LLP in Denver.

With more than $20 million at stake, the family and the hospital were represented on appeal by seasoned appellate attorneys.

University of Baltimore School of Law Professor Byron L. Warnken pressed the Norfleets’ on appeal. Warnken did not return telephone and email messages seeking comment Friday.

Kannon K. Shanmugam, who has argued 14 cases before the U.S. Supreme Court, represented the hospital at the Court of Special Appeals. Asked whether he plans to appeal further, Shanmugam stated in an email Friday that he and the hospital are “still in the process of reviewing the Court of Special Appeals’ opinion, so we have no comment at this time.”

Shanmugam is a partner at Williams & Connolly LLP in Washington, D.C.

Shantiah Norfleet was admitted into MedStar Harbor Hospital on Sept. 6, 2002, when she was 32 weeks pregnant.

On average, a pregnancy lasts 40 weeks. However, both Mrs. Norfleet and the baby had high blood pressure, a condition dangerous for mother and child alike. Therefore, the doctor decided to induce labor.

The following day, while Mrs. Norfleet was in labor, a fetal heart rate monitor showed the baby was low on oxygen, according to the lawsuit filed Feb. 18, 2011.

During the two-week trial, the family’s experts testified that Jaylan’s low oxygen levels called for a prompt Cesarean-section delivery. Instead, Dr. Kathleen Ward decided to let labor continue for an additional three hours, the plaintiffs allege.

When Jaylan was born, the umbilical cord was wrapped around his neck and he was deprived of oxygen, the experts added.

Jaylan developed spastic diplegic cerebral palsy, in which he is not mentally impaired but has difficulty moving his legs and arms and will always use a wheelchair, the experts said.

The plaintiffs’ experts included Drs. Frederick E. Harlass, an obstetrician and gynecologist who specializes in high risk pregnancies and deliveries; Richard L. Stokes, an OB/GYN; and Carolyn Crawford, a neonatologist, according to court documents.

But the hospital’s experts testified that vital signs taken after delivery indicated Jaylan had not been deprived of oxygen. The experts also called it nearly impossible for the soft and jelly-like umbilical cord to have compressed Jaylan’s carotid arteries and jugular vein; in fact, they argued such a result would be so “novel and extraordinary” that it could not have been foreseen by an obstetrician, the Court of Special Appeals opinion stated.

The hospital’s experts included Drs. Robert Clancy, a pediatric neurologist; Bruce L. Bryan, an OB/GYN; neonatologist Krisa Page Van Meurs; and Thomas P. Naidich, a pediatric neuroradiologist, according to court documents.

Prior to jury deliberations, counsel for the hospital moved unsuccessfully for judgment, saying Jaylan’s post-natal results showed he had not suffered oxygen deprivation.

After the jury found for the family on July 31, 2012, the hospital moved for judgment notwithstanding the verdict.

The hospital argued in vain that as a matter of law the jury could not have found a causal relationship between Jaylan’s delivery and his cerebral palsy.

Circuit Judge John Philip Miller rejected the motion, prompting the hospital to seek review by the Court of Special Appeals.

“Running through [the hospital’s] causation in fact contentions is the suggestion that the evidence presented by their expert witnesses was so overwhelming that the court erred by letting the matter go to the jury,” Kehoe wrote for the appellate court. “The argument is misplaced. As in any case the jurors were entitled to believe all, some, or none of either expert’s opinions.”

Kehoe was joined in the opinion by Judges Kathryn Grill Graeff and J. Frederick Sharer, a retired judge specially assigned to hear the appeal. The case is Harbor Hospital Inc. v. Norfleet, No. 1805 Sept. Term 2012.

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