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Failure To Diagnose Mother's Medical Condition Causes Brain Damage In A Child

It’s easy to understand that if a doctor makes a mistake, it is their patient who suffers. But few remember that if the patient is a woman who is carrying a child or plans in the future to become pregnant, the life of the child may also be changed forever.

Visit our article on other medical malpractice claims like Misdiagnosed Breast Cancer: Was It Medical Malpractice?

How A Failure To Diagnose Caused Brain Damage

The plaintiff, in this case, is a woman who expressed to her doctor that she wished to start a family. Prior to becoming pregnant, she underwent general health testing including a pap smear to make sure she was healthy enough to carry a child.

The pap smear was reviewed by a cytopathologist who noted that there were cells consistent with the herpes simplex virus.pregnant woman who may have a difficult delivery

Although this virus has the potential to cause sores in the mouth or genital blisters, most patients are asymptomatic. However, if a mother gives birth vaginally, there is a chance that the virus can be transmitted to the child and given that the child’s immune system is not yet as strong as an adults, the virus can cause disability or death.

In this case, despite the confirmation of the cells, the health department nurse reported the test as a normal and the obstetrician did not review the results. She was declared healthy and became pregnant.

When the time came to give birth, she did so vaginally, believing it to be safe. Her female child contracted the virus from her mother and in less than two weeks, developed herpatic meningoencephalitis. This condition caused serious brain damage and she has difficulty walking, developmental delays, and has issues with her vision and speech.

Her Mother’s Lawsuit

Once is was determined that her child would live but that she would have brain damage, the mother filed a lawsuit against health department, alleging that their employees failed to diagnose her with the herpes simplex virus despite testing positive and that if they had, she would have been advised to have a c-section instead of a normal delivery. If this method of delivery had taken place, her child never would have been exposed to the virus and therefore would not have sustained brain damage.

The Outcome

Although a trial was scheduled, the two parties agreed to a settlement of $3.2 million.

Are Out Of Court Settlements Common?

Yes. The fact is that most cases settle out of court. There are benefits which include:

However, this isn’t always the case and sometimes, medical malpractice cases do go to trial. But an experienced lawyer will always be able to provide their client with a full explanation of their legal rights.

Lawyers Can Negotiate Higher Settlements

Although a defendant may make an offer to settle, the plaintiff is under no obligation to accept and certainly, with the assistance of an attorney, can usually negotiate a higher amount.

These funds, once agreed upon, can be used to cover the cost of:baby who was misdiagnosed

  1. Medical expenses.
  2. Lost earnings.
  3. Emotional trauma.
  4. Physical pain and suffering.

In cases where the malpractice resulted in the death of a patient, funeral and burial expenses may also be covered.

How Much Are Cases Typically Worth?

There is no “typical” amount awarded to plaintiffs in medical malpractice cases, simply because there are no two cases that are exactly alike. However, when reviewing the awards from other medical malpractice cases, it can be seen that the awards given can be invaluable to the plaintiffs. For example:

  1. In a case where a nurse’s failure to pay attention to the oxygen intake of a child led to brain damage, the court awarded $130 million.
  2. $14 million was awarded to a family when a doctor failed to diagnose a life-threatening condition and his patient ended up with a serious brain injury.
  3. $12 million in a complaint where a man died because a nurse didn’t properly monitor him and he went into cardiac arrest.

Once a lawyer has reviewed the particulars of a case, they will be able to provide the client with an estimate regarding how much their complaint may be worth.


Thanks to our friends at Carlson Legal, Bellevue, WA personal injury attorneys, for their contributions to this post.

Continue reading more examples of medical malpractice settlements: Parents Whose Daughter Died During Dental Surgery Settle For $2 Million

Laurence P. Banville
Date Published: February 2, 2017
Laurence P. Banville is the managing partner of Banville Law. As an experienced personal injury attorney, Mr. Banville helps clients recover compensation from those responsible for his clients' injuries. Our firm is located in New York City, serving clients from the five boroughs: Manhattan, Brooklyn, Queens, The Bronx, and Staten Island.
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