Birth Injury Results in $53 Million Jury Verdict

JusticeThe largest birth injury verdict in the history of Cook County, Illinois has been upheld by the trial judge. Whether it will withstand an appeal may not be known for many months.

At the end of June 2016, a Chicago jury awarded $53 million to a boy who was born with a severe brain injury. The jury found that employees of the hospital where the child was born were negligent and that their negligence caused the child’s brain damage.

The hospital complained that the verdict was the product of sympathy, not evidence. The hospital also contended that the child’s lawyer swayed the jury with improper arguments.

Facts of the case

Isaiah Ewing’s guardian sued the University of Chicago Medical Center for medical malpractice in 2013. Isaiah had reached the age of 12 by the time the case came to trial. The jury heard evidence for a month before it returned a verdict.

Isaiah’s lawyers argued that his mother’s physicians failed to recognize signs of fetal distress during her 12-hour delivery until it was too late to respond. They contended that the doctors should have performed an emergency cesarean section.

When the mother arrived at the delivery center at 2:00 a.m., she told staff that her baby was not moving as much as he had been earlier. According to Isaiah’s lawyer, that fact and the readings from a heart-rate monitor should have been recognized as signs of fetal distress. Isaiah’s lawyer argued that the delivery center is staffed by student residents during the night, and that they were unprepared to handle an emergency.

Instead, the mother was unattended for most of the 12 hours prior to the delivery. When doctors examined the mother in the early afternoon, they realized that the baby was not breathing. They performed a cesarean section at that time, then rushed Isaiah to a neonatal intensive care unit. They were able to save Isaiah’s life, but oxygen deprivation prior to his birth caused him to develop cerebral palsy.

Isaiah now needs constant care. He cannot perform the activities of daily living without assistance, including eating, bathing, and dressing. About half of the jury verdict reflects the cost of providing that care over Isaiah’s lifetime. The jury also awarded damages for Isaiah’s loss of earning capacity, his inability to enjoy a normal life, his disfigurement, his past and future medical expenses, and his pain and suffering.

According to Isaiah’s lawyer, the hospital doctors were aware that their delay in performing the cesarean section caused Isaiah’s injuries, but they did not disclose their negligence to Isaiah’s mother. Instead, they attributed his brain injury to a different medical condition.

The defense relied on experts who testified that Isaiah was born with normal blood oxygen levels. They blamed a pre-birth infection for his cerebral palsy. Isaiah’s lawyer, however, contended that every neutral physician who reviewed the medical records concluded that Isaiah suffered brain damage caused by a lack of oxygen.

Mistrial Denied

The hospital promptly attacked the verdict. It filed a motion for a mistrial, claiming that Isaiah’s attorney “prejudicially argued that the defendant's case was built on a falsehood” and equated the hospital’s “conduct and testimony of its witnesses with the propaganda techniques notoriously and unmistakably associated with Nazi Germany.” The hospital also alleged that Isaiah’s attorney poisoned the jury with accusations of a cover-up and references to similar strategies being used by “a minister of truth and propaganda.”

Lawyers are allowed — and, in fact, required — to be zealous advocates for their clients, but they cannot make inflammatory arguments that appeal to passion or prejudice rather than reason. The line between zealous advocacy and improper incitement is not always easy to discern. The judge decided that the lawyer’s use of Orwellian rhetoric was not a reference to Nazi Germany and provided no reason to overturn the jury’s verdict.

The court also rejected the argument that Isaiah’s lawyer crossed a line by arguing that the hospital fabricated its infection defense. The judge noted that a defense witness accused attorneys of “writing a false conclusion” into a report. That testimony opened the door for counsel’s arguments.

At the hospital’s request, the jury was asked whether Isaiah’s injury was caused by something other than the hospital’s conduct. In a second mistrial motion, the hospital complained that Isaiah’s attorney told the jury that the question was requested by the hospital. Since the attorney did not tell the jury how its answer would affect the verdict, however, the court concluded that the lawyer’s argument was not prejudicial.

Finally, the hospital argued that Isaiah’s attorney compared himself to Atticus Finch, the hero of To Kill a Mockingbird. The hospital contended that the argument was a “racially charged” effort to appeal to “moral outrage” in a jury that included several black members. The court disagreed. Noting that both sides were debating the meaning of “justice” in their closing arguments, the judge said that both sides were entitled “to use rhetoric, literature, comedy — whatever they wanted to use — to define the terms of justice.”

Having decided that the verdict should stand, the court entered judgment in Isaiah’s favor. The hospital will now decide whether it should appeal. If it appeals and loses, it will need to pay substantial interest that will accumulate on the $53 million verdict while it awaits a result.

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