On December 23, 2013, a Lehigh County, Pennsylvania medical malpractice jury awarded $55 million to the family of a now 4-year-old child who did not have sufficient oxygen during the birthing process, resulting in the child being severely developmentally delayed, having cerebral palsy, and having problems walking and talking. The medical malpractice defendants were the hospital where the birth took place and one of the doctors who participated in the baby’s delivery. The medical malpractice trial lasted two weeks.
The medical malpractice plaintiffs alleged that the baby did not have sufficient oxygen during labor, which was compounded when the baby got stuck in the birth canal during vaginal delivery. The plaintiffs alleged that the baby would have been born without suffering the catastrophic injuries if the defendants had performed a timely cesarean section delivery. The child’s father (a doctor) and his mother (a sixth-grade teacher) alleged that their son was born with barely a pulse due to the defendants’ medical negligence.
The parties had entered into a high-low agreement before trial, which set a floor (low) and a ceiling (high) with regard to how much the hospital would be liable to pay to the plaintiffs, depending upon the amount of damages the jury awarded. Typically, a high-low agreement specifies that the plaintiffs will receive the amount of the jury’s verdict if the jury’s award falls between the high and low amounts agreed upon; if the jury awards less than the amount of the low, or if the jury finds in favor of the defendants, then the plaintiffs would nonetheless receive the amount of the low that was agreed upon; and, if the jury awards more than the agreed-upon high, then the plaintiffs would receive the amount of the high that was agreed upon.
A high-low agreement provides the parties to the agreement with some level of certainty in an otherwise uncertain situation — the defendants are assured that their liability for payment is capped at the high while the plaintiffs are assured of at least a minimum amount of recovery (the low). The jury is not told of the parties’ agreement and the trial judge is often not advised of the parties’ high-low agreement. In that manner, the jury trial plays out unaffected by the high-low agreement and the trial proceeds as if there was no high-low agreement.
While the lawyers for the Pennsylvania medical malpractice plaintiffs would not disclose the amount of the high-low agreement in their case, it is probably safe to assume that the agreed-upon high is lower than the $55 million awarded to their clients.
Birth injury medical malpractice claims are some of the saddest medical malpractice cases — the injuries are often catastrophic and permanent, leading to unfulfilled hopes, desires, and expectations of the grieving parents for their injured children. The cost of required life-long medical care for the injured child is often substantial, thereby exposing the negligent health care providers to substantial liability for their negligent acts or omissions.
If a member of your family suffered birth injuries that may be due to medical negligence, you should promptly seek the legal advice of a medical malpractice attorney in your state who may investigate your medical malpractice claim for you and represent you in a medical negligence claim, if appropriate.
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