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A suburban Chicago hospital and a physician have agreed to pay $19 million to a teen-ager 19 years after allegedly negligent medical care provided while his mother was in labor left him retarded and handicapped. The settlement, reached while the jury deliberated, includes $9 million for shortened life. The plaintiff, Damen Townsend, 19, is the first person in Illinois, and one of few in the United States, to be compensated for shortened life expectancy, said his attorney, Kevin Burke of Burke, Mahoney & Wise of Chicago. Townsend v. Little Company of Mary Hospital and Health Care, No. 00 L 3555, (Cook Co., Ill., Cir. Ct.). DIRE CONDITION Patricia Townsend was 12 days past due when she entered Little Company of Mary Hospital in Evergreen Park, Ill., on July 20, 1983. Beginning at 3:30 p.m., the fetal monitor attached to her recorded a drop in the baby’s heart rate that continued until 8 p.m., when Dr. Joseph Zacharia phoned the nurse on duty to ask about Townsend’s condition. According to testimony, Zacharia allegedly directed the nurse to disconnect the monitor after she assured him Townsend was doing well. Zacharia detected the fetus’s dire condition the following morning when he examined Townsend. He ordered an emergency Caesarean section, but prolonged lack of oxygen caused severe cerebral palsy, Burke said. Illinois has an eight-year statute of limitations on medical malpractice claims by children, but the boy was not barred because his retardation left him incompetent to decide to sue, Burke said. Patricia Townsend said she never blamed her son’s condition on the hospital or staff, but became concerned about who would care for him in the future. At the urging of a friend, she retained Charles Francis of Raleigh, N.C.’s Austin & Francis. Francis obtained Damen’s medical records and served as co-counsel at trial with Burke. The case, which was filed two years ago when Damen Townsend was 17, was based on medical records that Illinois law requires hospitals to maintain on children until they reach age 18. “This case was dependent on the fetal monitor strips. We had minute-to-minute recordings of the baby’s heart rate,” Burke said. “We based the case entirely on records, not on memories.” Defense counsel Marilee Clausing of Anderson, Bennett & Partners of Chicago said the defense was handicapped by incomplete records and the death of the nurse supervising Townsend’s care. While the jury deliberated, the parties reached a high/low settlement under which, if found liable, the hospital agreed to pay $18 million and Zacharia would pay $1 million. The jury verdict called for the hospital to pay $20.25 million, including $9 million for shortened life expectancy. The jury found Zacharia not liable. The award for diminished life expectancy is the first since the Illinois Supreme Court opened the doors to such compensation last January with its opinion in Dillon v. Evanston Hospital, No. 91517-Agenda. Burke said the supreme court opinion held that when a defendant who contends that an injury reduces life expectancy is found negligent, the plaintiff is entitled to recover damages. “In cases of children with severe cerebral palsy, the defense consistently will argue the plaintiff is only entitled to damages for the duration of the decreased life expectancy,” Burke said. Clausing said juries are instructed to compensate for the “nature, extent and duration” of negligent injury, which implicitly includes shortened life expectancy. “Recovery for this is new and, in my view, unwarranted,” she said.

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