A confidential settlement has been reached in a medical malpractice lawsuit brought by a woman who was sent home from a hospital while in labor and gave birth on her bathroom floor four hours later.
The baby, born in 2008, had no pulse and wasn't breathing. Rescue workers gave him oxygen and CPR while they transported him by ambulance to Southern Regional Medical Center. An emergency room doctor was able to intubate the baby immediately, but by then he'd gone without breathing for 15 minutes, according to the complaint. The case was being prepared for trial before Clayton County State Court Judge Michael Garrett.
William Cromwell, the attorney for the mother and her son, credited the resolution to efforts by M. Gino Brogdon of Henning Mediation and Arbitration Service. Cromwell said he walked out of the Aug. 30 mediation session thinking the defense offer wasn't enough. On his way home, he received a call on his cellphone from the hospital's lawyer saying, "Let's work on this some more."
Brogdon continued working with all the parties until they came to agreement on Sept. 13, Cromwell said.
The defendants were Southern Regional Health System, represented by Thomas Mazziotti of Greenberg Traurig, and Women's Community Health, represented by Anna Fretwell of Huff Powell Bailey.
Mazziotti called the resolution a "success story" and the "right thing to do." He said the hospital thoroughly evaluated the patient and determined that she was not yet in "active labor," and that sending her home to progress was appropriate. Also, he said her condition was virtually unchanged from two previous trips to the hospital that week. Still, he knew a jury could react against the decision to send her home. "That was the heat in the case," he said.
The hospital's defense counsel also noted that the mother helped aid the resolution just by being polite and respectful during the mediation. Mazziotti said he could see she was disappointed when the settlement wasn't reached that day, and that's part of why he called Cromwell to continue talking.
"It's a lovely family, a beautiful child," he said. "It would overwhelm a jury with sympathy because they're lovely people."
Cromwell, of Carter Cromwell Law Group, said the resolution met Brogdon's definition of a good settlement: no one was completely satisfied. Still, he was glad to have the case resolved without the expense and risk of a jury trial. The agreement will have to be approved by the judge because the minor child is one of the parties.
The strongest fact for the plaintiffs, Shannon Shirley and her son, was that the hospital sent her home two days after her due date when she was in labor. A nurse had checked her and given her morphine for pain, ordered by a nurse midwife who never saw the patient. Nine minutes after the morphine administration, the nurse sent Shirley home, according to a plaintiff's expert's review of the medical records. The baby was born about four hours later.
Morphine can be safely used for pain in pregnancy, Cromwell said. But since it relaxes the entire body, it can trigger a quick birth, which is what he said happened in this case.
He said the baby suffered from seizures and lingering effects of oxygen deprivation but has made a "remarkable recovery." He can now walk, talk, jump and goes to pre-school. He'll celebrate his 5th birthday in October.
The strongest fact in the hospital's favor, Cromwell said, was that the boy was diagnosed with autism, a condition for which the cause is still not clear. The defense was able to attribute the boy's lingering developmental difficulties to autism rather than brain damage at birth. He said the "pounding mantra" for the defense counsel was: "How can you blame a hospital for autism?"
The case is Shirley v. Southern Regional Health System, No. 2010CV04384B.