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A medical malpractice suit over the failure to treat an infection that caused brain damage in a newborn has resulted in a $29 million verdict after a trial before a federal judge.

The case involved doctors at a federally-funded clinic and therefore was tried under the Federal Tort Claims Act, which allows the government to be sued for torts committed by its agents but requires a bench trial after administrative remedies have been exhausted.

Winning attorney David Pritchard is still surprised the case didn’t settle.

“It was a straightforward med-mal case. It was a very, very strong case, one of the strongest I’ve had,” said Pritchard, an equity partner with the eight-lawyer firm Salvi Schostok & Pritchard in Waukegan, Ill.

He said lack of coordination in the federal government prevented settlement.

“No one in [the U.S. Attorney's Office in] Chicago is allowed to settle. In Washington they’re allowed to settle, but they don’t know anything about the case,” Pritchard explained.

The hospital settled pre-trial for $6.5 million, but there were no settlement offers from the government. The judge adjusted the verdict by setting-off the settlement with the hospital, which means the plaintiffs can collect just under $23 million from the government.

Eric Pruitt, the assistant U.S. Attorney in the Chicago office who defended the case, said he was unable to comment on the verdict.

Group B strep

The suit was brought by the parents of Christian Arroyo, who contracted a Group B Beta Hemolytic Streptococcus (GBS) infection during his delivery and suffered permanent brain damage.

About 15 percent of women are carriers of Group B strep, said Pritchard. While the consequences of the infection passing to a baby are devastating, treatment with antibiotics is simple and virtually risk-free, Pritchard stated during the seven-day trial.

He argued that the standard of care of “when in doubt, treat it,” is well-settled in guidelines put out by the Centers for Disease Control, the American Academy of Obstetricians and Gynecologists, and the American Academy of Pediatricians.

Specifically, he showed that doctors missed two chances to stop the infection: when the mother exhibited two out of the four risk factors and when the newborn showed 11 out of the 12 neonatal signs of infection.

“It’s crystal clear that the baby had every sign [but] they didn’t treat him for over 36 hours,” said Pritchard. “By then the infection had gone to the baby’s brain and it was too late.”

The child, now 7 years old, suffers from cerebral palsy spastic quadriplegia and cannot stand, walk, talk or eat solid foods.

According to Pritchard, the defense disputed that risk factors in the mother were present.

One of those risk factors is premature rupture of the membranes. But that argument appeared to backfire when Pritchard pointed to nurses’ notes containing five or six references to the mother’s ruptured membranes shortly after her admission to the hospital.

Pritchard said the defense’s neonatologist expert argued that nurses’ charts indicating several symptoms in the baby, including erratic temperature, skin color changes, grunting and feeding disruptions, could not necessarily be trusted.

“This was like a trial lawyer’s dream cross-examination,” he said.

Pritchard responded by grilling the expert on why a nurse would decide to chart a bunch of symptoms if they were normal.

“It was just a crazy defense,” he said.

‘A jury would’ve gotten angry’

Trying the case before a judge rather than a jury posed some disadvantages.

Pritchard admitted that if he tried the case before a jury he would have asked for $50 million rather than the $35 million he asked of the judge.

“Judges go by the evidence, not by emotions, but a jury would’ve gotten angry,” he said, adding that he thinks jurors would have awarded $40 million.

In one potentially evocative trial moment, the defense sought to lower the future economic losses by challenging the parents, who testified at trial, with the argument that they didn’t go to college, so who’s to say their child would have gone to college?

“If you did that in front of a jury, they would smack you,” asserted Pritchard.

Unlike a jury, the judge directly challenged witnesses, including grilling the defense’s obstetrics expert on whether the mother’s membranes had ruptured or not, Pritchard said.

Collecting damages from the government will be a challenge.

Pritchard, no stranger to cases under the Federal Tort Claims Act, said he fears that the U.S. Attorney’s Office will appeal at the last minute to string along the case, despite his willingness to settle.

And, he noted cynically, “the post-judgment government interest is only 1.5 percent.”

Two years ago, Pritchard handled a FTCA case involving a woman from the Democratic Republic of Congo who contracted AIDS as a rape victim, then was admitted to the U.S. for treatment, only to be given anti-retroviral medication that killed her. Pritchard offered to settle for $600,000, but got no response from the U.S. government; at trial he won a $4.5 million verdict.

Far from being intimidated by federal trial work, Pritchard, who practiced on the defense side for 22 of his 32 years as a lawyer, is a self-proclaimed “trial junkie.”

“I love the action. Having all the hard work pay off. Having to think on your feet. I only handle cases over $2 million so there’s a lot of money at stake and my [clients] are usually devastated. You feel like a champion,” he said.

Plaintiff’s attorney: David J. Pritchard of Salvi Schostok & Pritchard in Waukegan, Ill.

Defense attorneys: Eileen Marutzky and Eric Pruitt of the U.S. Attorney’s Office in Chicago.

The case: Arroyo v. U.S.A.; April 2, 2010; U.S. District Court for the Northern District of Illinois; Judge Amy St. Eve.

Questions or comments can be directed to the writer at: sylvia.hsieh @lawyersusaonline.com

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