$1,200,000 Recovery for Miscalculation of Due Date Causing Early Induced Labor Resulting in PVL
Daryl L. Zaslow, Esq. of Eichen Crutchlow Zaslow, LLP (Edison, Red Bank and Toms River) obtained a $1,200,000 settlement on behalf of an 11-year-old boy who was diagnosed with periventricular leukomalacia (“PVL”) at 5 years of age. A portion of the settlement is being used to purchase an annuity which will make the total value of the settlement $1,834,401.70. The settlement was reached during a settlement conference before the Honorable James Den Uyl, J.S.C., who approved the settlement at a friendly hearing conducted before His Honor on March 11, 2016.
On January 25, 2005, the Plaintiff’s mother was 32 years old when she presented to her obstetrical group for her first prenatal visit. At such time, she reported that she was uncertain whether her last menstrual period (“LMP”) was November 11, 2004 or November 16, 2004. Thereafter, the pregnant patient underwent three prenatal ultrasound examinations all of which were interpreted by her obstetrician the Defendant. Mr. Zaslow retained experts who opined the three ultrasounds supported a final estimated due date of August 25, 2005. The experts further opined that the Defendant deviated from the accepted standards of obstetrical care by erroneously determining the estimated due date to be on August 16, 2005 based on the uncertain LMP of November 11, 2005. According to Mr. Zaslow and his experts, because there was a 9-day difference between the estimated due date by LMP and the estimated due date by ultrasound, the ultrasound-derived estimated due date of August 25, 2005 should have been considered the correct due date.
The Defendant obstetrician induced labor on August 1, 2005. The medical records he prepared at such time indicated that the mother was 38 weeks pregnant and that the obstetrician induced labor was because the mother had severe complaints of Gastroesophageal reflux disease (“GERD”). Mr. Zaslow maintained that in reality, his client was only 36+4/7 weeks pregnant on August 1, 2005 based on her first trimester ultrasound, clinical history and the remaining two ultrasound examinations. By miscalculating the estimated date of delivery and inducing the delivery on August 1, 2005, the plaintiff’s experts opined that the defendant caused an iatrogenic preterm birth that increased the risk of the baby having short- and long-term morbidity including but not limited to respiratory problems after birth and long-term neuro-developmental problems.
Although the baby appeared healthy at birth, with excellent Apgars of 9/9/9, shortly after birth he developed respiratory distress. The child was slow to meet his developmental and neurological milestones during the first several years of life and several of his treating physicians and the child study team at school system believed he was autistic. When Mr. Zaslow’s client was 5, however, he underwent an MRI which was interpreted to show Periventricular leukomalacia or PVL. PVL is a type of brain damage that involves the periventricular white matter of the brain. Damage to the white matter results in the death and decay of injured cells, leaving empty areas in the brain called lateral ventricles, which fill with fluid (a condition called leukomalacia). Following the MRI, one of his treating physicians attributed his developmental delays in the area speech to be from the PVL.
Although PVL is usually associated with premature babies born prior to 34 weeks gestation, Mr. Zaslow and the experts he retained maintained that his client’s PVL and developmental delays in the area of speech were caused by his iatrogenic premature birth.
The Defense argued that the Defendant correctly determined the due date and that the birth was not premature. The Defense had several experts who opined there was no PVL and any problems the child had were caused by autism and had nothing to do with when he was delivered.
The Defendant Obstetrician settled for one million dollars, the amount of his insurance policy. Plaintiffs alleged the obstetrical office staff should have made the fact the mother was not certain what her LMP was more apparent in the medical records and/or otherwise ensured this fact was brought to the attention of obstetrician. As such, they contributed $200,000 to the settlement.