Reprinted with permission from Chicago Daily Law Bulletin
Originally posted 6/22/2017
Written by Lauraann Wood

$10.9M for brain injury in delivery

The mother of a boy who suffered severe cognitive disabilities from a lack of oxygen during birth settled her lawsuit Tuesday for $10.9 million.

Plaintiff Jill Uswajesdakul sued West Suburban Medical Center in Oak Park and her midwife in 2013, alleging she failed to receive proper fetal monitoring while going through a water birth in February 2012.

Before Uswajesdakul transferred to a tub of water for labor and delivery, she underwent 30 minutes of monitoring in bed that returned positive readings for her fetus.

Since mothers can’t have an electronic monitor continuously attached to them in the water, a Doppler heartbeat monitor is typically checked as the labor progresses, said Francis P. Morrissey, a partner at Burke Wise Morrissey & Kaveny LLC. Morrissey represented Uswajesdakul.

“It starts off every 15 minutes to check on baby. In the pushing stage, it goes to every five minutes,” he said. “The baby is being stressed out at that point, at the second stage of labor, so that’s an even more important reason to monitor the baby … as he’s coming down the birth canal.”

Uswajesdakul’s first stage of labor lasted about 3½ hours, and she pushed for roughly another three hours before delivering her son Alex early that afternoon. She alleged Alex’s heartbeat should have been monitored about 37 times through that process but received between seven and 12 checks.

It’s normal for a baby’s heartbeat to slow from stress during the birthing process, Morrissey said.

“What’s not normal is when you have a slow return to baseline, where it takes a longer time to get back up to normal,” he said.

“If you’re going to do intermittent auscultation as opposed to continuous monitoring, you have do it frequently so you can spot trends and you can spot problems. When you have just isolated readings every hour or every half-hour, you have the chance that you’re going to miss problems like hypoxia.”

Alex was blue and not breathing when he was born, which Morrissey called “tell-tale signs” of a brain injury resulting from prolonged periods of no oxygen. The injury was later confirmed through MRI and CT scanning, he said.

Alex suffers from cerebral palsy and other complications as a result of the monitoring deficiency, Uswajesdakul alleged. She and her husband, Dave, have since had to make home accommodations, travel abroad for communication therapy and purchase equipment their insurance didn’t cover to accommodate their son’s condition, Morrissey said.

The defendants alleged Alex had a strong heartbeat every time it was checked, which led them to believe he was in good condition throughout the birthing process, Morrissey said.

“The problem is when you’re not checking every five to 10 minutes, what happens is you have less data points, so you might be checking in at the end of the contraction when baby’s heart rate goes back,” Morrissey said.

Carmel M. Cosgrave, a partner at SmithAmundsen LLC who represented the hospital, declined to comment.

Bobbie J. Moon, a shareholder with Sandberg, Phoenix & von Gontard P.C. in St. Louis who represented the midwife and her professional corporation, also declined to comment.

The parties mediated the case before Richard H. Donohue of Donohue Brown Mathewson & Smyth LLC in May and were working toward a July 23 trial date when they reached their settling agreement. Circuit Judge John P. Callahan Jr. entered the order dismissing their case.

“I think Jill and Dave are very content and are happy to put the lawsuit behind them. It gives them some closure, and it also allows them to think about the future,” Morrissey said.

“Really, the possibilities are quite significant in terms of additional therapies and additional equipment they might need to make a positive impact in [Alex’s] life, and I think that’s really satisfying for them to be able to do that for Alex.”

Burke Wise associate David J. Rashid also represented Uswajesdakul.

The case is Jill Uswajesdakul v. West Suburban Medical Center, et al., 13 L 14398.