National Verdicts

Plaintiff(s):

Lisa Ewing (Female, 24 Years), 

Isaiah Ewing (Male)

Plaintiff Attorney(s):

Geoffrey N. Fieger;
Fieger Law PC;
Southfield,
MI,
for
Lisa Ewing, Isaiah Ewing ■ Matthew Patterson;
Beam & Raymond Associates;
Chicago,
IL,
for
Lisa Ewing, Isaiah Ewing

Plaintiff Expert(s):

Gary Yarkony; M.D.; Physical Medicine; Elgin,
IL called by:
Geoffrey N. Fieger, Matthew Patterson ■ Ronald Gabriel; M.D.; Pediatric Neurology; Los Angeles,
CA called by:
Geoffrey N. Fieger, Matthew Patterson ■ Russel Jelsema; M.D.; Fetal Alcohol Syndrome; Grand Rapids,
MI called by:
Geoffrey N. Fieger, Matthew Patterson ■ Anthony Gamboa, Jr.; Ph.D.; Vocational Rehabilitation; Louisville,
KY called by:
Geoffrey N. Fieger, Matthew Patterson ■ Jeffrey Soffer; M.D.; Obstetrics; Westfield,
NJ called by:
Geoffrey N. Fieger, Matthew Patterson ■ Kathleen Lagana; R.N.; Obstetrics Nursing; Portland,
OR called by:
Geoffrey N. Fieger, Matthew Patterson ■ Michelle Murray; R.N.; Obstetrics Nursing; Albuquerque,
NM called by:
Geoffrey N. Fieger, Matthew Patterson ■ Yitzchak Frank; M.D.; Pediatric Neurology; New York,
NY called by:
Geoffrey N. Fieger, Matthew Patterson

Defendant(s):

Dr. Kiley, 

Jane Does, 

John Does, 

Sarah Adams MD, 

Yashica Kishor, 

Ghelani Shah MD, 

Jill Moran M.D., 

Judith Hibbard MD, 

Melissa Bishop MD, 

Michael Gavino MD, 

Todd Deutsch M.D., 

Melissa Gilliam MD, 

Natasha Jenkins MD, 

Laura DiGiovanni MD, 

Perpetua Goodall MD, 

Larry Morgenstern MD, 

University of Chicago Hospital, 

University of Chicago Medical Center

Defense Attorney(s):

Jennifer A. Lowis;
Lowis & Gellen LLP;
Chicago,
IL,
for
Dr. Kiley, Jane Does, John Does, Sarah Adams MD, Yashica Kishor, Ghelani Shah MD, Jill Moran M.D., Judith Hibbard MD, Melissa Bishop MD, Michael Gavino MD, Todd Deutsch M.D., Melissa Gilliam MD, Natasha Jenkins MD, Laura DiGiovanni MD, Perpetua Goodall MD, Larry Morgenstern MD, University of Chicago Hospital, University of Chicago Medical Center ■ Pamela L. Gellen;
Lowis & Gellen LLP;
Chicago,
IL,
for
Dr. Kiley, Jane Does, John Does, Sarah Adams MD, Yashica Kishor, Ghelani Shah MD, Jill Moran M.D., Judith Hibbard MD, Melissa Bishop MD, Michael Gavino MD, Todd Deutsch M.D., Melissa Gilliam MD, Natasha Jenkins MD, Laura DiGiovanni MD, Perpetua Goodall MD, Larry Morgenstern MD, University of Chicago Hospital, University of Chicago Medical Center ■ Bryan C. Larsen;
Lowis & Gellen LLP;
Chicago,
IL,
for
Dr. Kiley, Jane Does, John Does, Sarah Adams MD, Yashica Kishor, Ghelani Shah MD, Jill Moran M.D., Judith Hibbard MD, Melissa Bishop MD, Michael Gavino MD, Todd Deutsch M.D., Melissa Gilliam MD, Natasha Jenkins MD, Laura DiGiovanni MD, Perpetua Goodall MD, Larry Morgenstern MD, University of Chicago Hospital, University of Chicago Medical Center

Defendant Expert(s):

Frank Manning;
Fetal Medicine;
Scarsdale,
NY called by:
Jennifer A. Lowis, Pamela L. Gellen, Bryan C. Larsen ■ Harry Chugani;
Pediatric Neurology;
Detroit,
MI called by:
Jennifer A. Lowis, Pamela L. Gellen, Bryan C. Larsen ■ Janell Fuller;
Neonatology;
Albuquerque,
NM called by:
Jennifer A. Lowis, Pamela L. Gellen, Bryan C. Larsen ■ Marcia Patterson;
Obstetrics Nursing;
Naperville,
IL called by:
Jennifer A. Lowis, Pamela L. Gellen, Bryan C. Larsen ■ Richard Lazar;
Physical Medicine;
Chicago,
IL called by:
Jennifer A. Lowis, Pamela L. Gellen, Bryan C. Larsen ■ Jonathan Fanaroff;
Neonatology;
Cleveland,
OH called by:
Jennifer A. Lowis, Pamela L. Gellen, Bryan C. Larsen

Insurer(s):

self-insured for University of Chicago Medical Center

On April 19, 2004, Lisa Ewing, 24, who was 40 weeks pregnant, presented to University of Chicago Medical Center for a routine prenatal exam and reported she was experiencing some contractions. She underwent tests, which were completely normal and reassuring. Ewing was sent home and was instructed to return for routine testing one week later. That night, April 20, 2004, at approximately 2:01 a.m., Ewing was admitted to the University of Chicago Medical Center’s triage unit for observation after she reported decreased fetal movement. Ewing was evaluated in triage with a series of tests, including a non-stress test and an attempted acoustic stimulation. The non-stress test was not reactive and the acoustic stimulation failed. The resident doctors admitted Ewing for non-reassuring fetal well-being and delivery for fetal distress at approximately 4:20 a.m. At or about 5:20 a.m., Ewing was transferred into a labor room from triage at the hospital’s labor and delivery unit. Instead of performing a cesarean section for non-reassuring fetal well-being and fetal distress, at approximately 7:53 a.m., Ewing was induced for a trial of labor with the induction agent Cervidil (Dinoprostone). The fetal heart rate remained non-reassuring throughout Ewing’s delivery according to all medical records and all testimony at trial. After approximately 11 hours of non-reassuring fetal heartrate tracing and a failed induction of labor, Ewing was evaluated by a board-certified attending physician for the first time at 1:05 p.m. Following the attending physician’s evaluation, a decision was made to proceed with emergency C-section for fetal distress, according to numerous medical records. At approximately 1:49 p.m., Ewing gave birth to plaintiff Isaiah Ewing. The birth was performed by caesarian section. Isaiah was admitted to the hospital’s neonatal intensive care unit for nearly three weeks. The parties presented conflicting proofs about whether there were signs of fetal distress during the birthing process. Lisa Ewing claimed that Isaiah Ewing was born with severe hypoxic brain damage. Isaiah Ewing, a minor by his guardian, First Midwest Bank, sued the University of Chicago Medical Center d/b/a The University of Chicago Hospital. Isaiah sued 16 medical professionals who had treated Lisa as agents of the hospital during her pregnancy and prior to inducing delivery. There were initially claims against individual physicians and nurses that were voluntarily dismissed. prior to trial, and the matter proceeded to a trial against The University of Chicago Medical Center. Plaintiffs’ counsel alleged that the party sued was negligent in its treatment of Lisa and that it failed to deliver her unborn baby immediately by caesarian section and instead induced her with a contraindicated induction medication. Counsel asserted that it was a violation of the standard of care to induce Lisa for vaginal delivery, despite obvious and documented non-reassuring fetal well-being and fetal distress for a period of about 12 hours. Isaiah was born via emergency C-section nearly 12 hours after Lisa’s arrival. The Ewings’ pediatric neurology experts testified that Isaiah suffered severe hypoxic brain damage near the time of his birth. Both experts testified that had Isaiah been delivered sooner by cesarean section, he would not have suffered any brain damage. The Ewings’ obstetrical nurse experts opined that the nursing staff at the sued hospital deviated from the standard of care in numerous ways. The experts opined the nursing staff failed to properly assess and analyze the fetal heart monitor and the signs of fetal distress, failed to properly communicate with the attending physicians, failed to advocate for the safety of Isaiah, including preventing the administration of a contraindicated medication and advocating for earlier necessary delivery. The Ewings’ maternal fetal medicine expert and obstetrical expert testified that the attending physicians at the sued hospital deviated from the standard of care by failing to personally evaluate Lisa considering the documented findings of non-reassuring fetal well-being and fetal distress. The experts stated the attending physicians failed to properly oversee the resident doctors who were managing Lisa’s improper induction. Ultimately, the experts opined that all of the attending physicians and the residents deviated from accepted practice by attempting to induce Lisa instead of performing an immediate caesarian section at or around the time she arrived to the hospital for fetal distress. The maternal fetal and obstetrical experts concluded that had Isaiah been delivered by cesarean section as was required by the standard of care, he would not have suffered from brain damage. Further, each of the Ewings’ experts agreed there was no other cause of Isaiah’s injuries other than prolonged hypoxia during labor. Defense counsel contended nothing it did was negligent and that Isaiah’s brain damage was caused by an undiagnosed, in utero infection that occurred sometime before April 20, 2004. The defense contended there was no significant hypoxia since the cord gases showed normal oxygen and only mild acidemia that would not account for the significant brain damage. There were other objective laboratory results that could only be explained by an event more than 24 hours prior to delivery. The only explanation that would explain everything was an in utero infection, supported by chorioamnionitis on the placental pathology and the mother’s complaint of decreased fetal movement for 24 hours. Furthermore, the monitor strips and other information required continued monitoring but not an immediate or emergency caesarian section. The hospital’s expert neonatologist testified that there was an in utero event that caused brain damage at least 24 hours prior to delivery. The most likely cause of the brain damage, based on laboratory results including the cord gases, was an infection that occurred at least 24 hours to the delivery and an earlier delivery would not have changed the outcome. The defense’s expert in obstetrical nursing opined that the fetal monitor strips were stable throughout, that the nursing monitoring was within the standard of care, and that there was no reason for the nurses to "go up the chain of command" to suggest an immediate caesarian section. The hospital’s expert in maternal fetal medicine testified that the cord gases ruled out hypoxic injury during the time of the hospitalization. Additional objective laboratory evidence clearly supported an injury at least 24 hours prior to delivery. This was supported by Lisa’s complaint of decreased fetal movement on arrival at the hospital and chorioamnionitis on the placenta pathology report. Furthermore, the fetal monitor strips were stable throughout Lisa’s course at the hospital and there was nothing requiring a decision to proceed to immediate caesarian section in this first time mom until that decision was reached. Upon deciding to proceed to caesarian section, the delivery was accomplished within an appropriate time. The most likely explanation and the only one that explained all of the objective evidence was an infection in utero prior to the time of arrival at the hospital. An earlier delivery would not have prevented the brain damage, which had already occurred prior to arrival at the hospital.

On April 20, 2004, Isaiah was born with birth asphyxia, hypoxic brain damage and now has severe cerebral palsy. Plaintiffs’ counsel claimed that the hospital’s negligent treatment was the sole and proximate cause of Isaiah’s birth defects. Plaintiffs’ counsel claimed that Isaiah requires daily assistance with routine tasks and chores around the house and that he experiences difficulties with tasks of daily living. Counsel alleged that Isaiah suffers from learning and cognitive impairments, neurological impairments, and has difficulty socializing. The Ewings’ expert in physical medicine and rehabilitation opined that while Isaiah suffered a severe brain injury resulting in permanent physical and cognitive deficits, that with proper treatment including 24/7/365 and extensive therapies, he would live a near normal life expectancy. The Ewings’ vocational rehabilitation expert testified at trial that Isaiah’s loss of earning capacity was approximately $2 million to $3 million. He further stated that the estimated cost of future medical care including 24/7/365 nursing care was more than $35 million. The Ewings sought recovery of damages for past pain and suffering, future pain and suffering, disfigurement, loss of normal life, shortened life expectancy, and past/future emotional distress. Further, the Ewings sought recovery of past medical costs, future medical costs, future caretaking expenses, and future loss of earning capacity. Defense counsel argued that Isaiah’s birth defects were caused by an infection that he or his mother had contracted prior to the April 19, 2004 hospital visit. The defense alleged that Isaiah’s medical conditions and future ailments were unrelated to his mother’s treatment and the caesarian section that was performed at the hospital. The defense’s expert in physical medicine and rehabilitation testified that Isaiah had a very shortened life expectancy and would not require 24/7 caregivers for the next 60 to 70 years. Also, the 24/7 care could be delivered in a more-helpful and more-reasonable way, for much less money than requested by the Ewings.

The jury found for the Ewings and awarded $53 million.

Isaiah Ewing: $346,000 Personal Injury: Past Medical Cost; $7,250,000 Personal Injury: Future Medical Cost; $2,770,400 Personal Injury: Past Disfigurement; $28,852,000 Personal Injury: future caretaking expenses; $2,770,400 Personal Injury: loss of normal life; $2,700,000 Personal Injury: future loss of earning capacity; $2,770,400 Personal Injury: shortened life expectancy; $2,770,400 Personal Injury: past & future emotional distress; $2,770,400 Personal Injury: past & future pain & suffering

Judge:

John P Kirby

Demand:

$18,500,000

Offer:

$10,000,000

Trial Deliberations:

4
 hours

Jury Vote:

12-0

This report is based on information that was provided by plaintiff’s and defense counsel.