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$24 Million Birth Injury Verdict Will Stand

By Byron Warnken, on January 13, 2022

An appeals court in Washington state has elected to uphold a multi-million-dollar verdict stemming from a 2014 birth injury lawsuit. As detailed in the opinion filed this week by the three-judge panel affirming the ruling, Anna Scott and Zachary Burke filed a lawsuit against Jefferson County Public Hospital after the 2014 birth of their daughter Lana. The lawsuit alleged that medical staff at the hospital failed to realize the electronic fetal heart monitor was tracking Scott’s heart rate instead of Lana’s during labor, and due to this error, they were unaware when the umbilical cord wrapped around her neck in utero. Lana was subsequently born with severe, permanent brain damage due to oxygen deprivation. General Electric (GE), which manufactured the fetal monitor used during Lana’s labor and delivery, was also included in the lawsuit on the grounds that the monitor was defective.

Scott and Burke, who are represented by Robert N. Gellatly and John E. Gagliardi of Luvera Law Firm, were awarded $23.9 million in damages in 2020 following a Kitsap County Superior Court jury trial. While the plaintiffs reached a “high-low” agreement with GE before trial, which allowed the company to pay them between $1 million and $5 million based on how much blame was assigned by the jury, GE was eventually dismissed from the lawsuit entirely. Therefore, Jefferson County Public Hospital was determined to be liable for the entire damage amount.

The hospital then appealed the verdict on several grounds. It first argued that a venue change from Jefferson County, where the birth occurred, to neighboring Kitsap County for the trial had been inappropriate. But according to the appellate panel’s ruling, state law only dictates that a claim against a hospital be initially filed in the county where it resides – not that it remains there for the duration of litigation. The panel also determined that a venue change was necessary to prevent a potentially impartial trial, as numerous prospective jurors in Jefferson County were found to have links to the plaintiffs or the hospital and rejected.

Also included in the hospital’s appeal filing was a challenge to the exclusion of causation expert testimony at trial. Jefferson County Public Hospital’s experts opined that Scott’s record of marijuana use and both parents’ genetic history of mental disorders caused Lana’s brain impairment, not negligence on the part of hospital staff. But the appellate panel upheld the trial court’s original ruling that the narrative put forth by the experts was “speculative and irrelevant” and therefore not eligible for jury consideration.

Jefferson County Public Hospital further maintained in its appeal that the trial judge, who at one point allegedly admitted there was a special needs child in her own family, should have recused herself to maintain impartial proceedings. However, the appellate judges struck down this argument on the grounds the official trial record makes no mention of the supposed admission, and that the hospital failed to object when it apparently first learned of the information.

While attorneys for Scott and Burke predict that the hospital will continue to pursue the appeal at the state Supreme Court level, they also noted that their clients are “gratified” that the verdict  currently remains upheld. The verdict award against the hospital includes $2 million in future medical care for Lana, $1.05 million to account for her future lost earnings, $10 million for her future expenses, and $6.25 in noneconomic damages. It also included $4.6 million in damages to her parents. In this case, the catastrophic nature of Lana’s birth injury combined with the fact that she will require lifelong medical care likely contributed to the high dollar decision in her favor.

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