Articles - Medical Malpractice
Wesley settles suit over childbirth ::
(11 16, 2005)
Thursday, Apr. 8, 2004
>BY RON SYLVESTER
The Wichita Eagle
The parents of a boy with severe disabilities had accused a Wesley nurse of failing to heed warning signs when he was born.
Wesley Medical Center reached a settlement with the family of a severely disabled child this week, days after a Sedgwick County District judge said a jury could consider punitive damages against the Wichita hospital if the case went to trial.
The confidential settlement came less than a week after Judge James Fleetwood approved a request to seek punitive damages by the family of Carl Davis III. The trial was scheduled to start Tuesday.
The parents, Carl R. Davis Jr. and Lavette Davis, claimed a Wesley nurse with 17 years of experience acted recklessly while monitoring the birth of their son in 1999. They also claimed that the Wichita hospital lost or destroyed a key piece of the medical record.
Carl III, now 4, has cerebral palsy and severe mental retardation and cannot talk, feed himself or dress himself.
The family contended the nurse did not press a resident doctor to take action, despite signs the birth wasn't progressing safely. The resident, also named in the suit, still faces trial next week.
Kansas law requires a judge to find there's enough evidence to suggest reckless indifference, leading to an accidental injury. Punitive damages could reach $5 million.
The Davises' lawyer, Brad Prochaska, said he has only succeeded on three punitive damage motions against Wichita hospitals in the past decade. All have been granted in the past four years. Two have come against Wesley. The other went against Via Christi Regional Medical Center.
Wesley officials declined comment, but the hospital's lawyer, John Gibson, argued in court that there was no proof of negligence by the nurse.
More than 5,000 babies are born each year at Wesley -- far more than any other Kansas hospital.
Missing in this case, however, is a fetal heart monitor strip, which Wesley officials could not produce under subpoena. Hospital documents last mention the strip after it was studied by the hospital's peer review committee. Peer review is a closed process for investigating claims of medical errors.
According to records submitted to the judge:
When Lavette Davis entered Wesley in labor the morning of Oct. 28, 1999, the admitting nurse recorded an abnormal fetal heart rate of 200-205 beats per minute. Normal range is 120-160. A heart rate over 185 is considered severe, according to obstetrics textbooks. The birth room nurse saw the rapid heart rate continue, then asked the resident to perform an emergency C-section. But the resident decided to wait.
Prochaska and co-counsel Dan Giroux produced medical textbooks saying that nurses should report such situations to their supervisors and continue climbing a hospital's chain of command until someone takes action. Wesley has a written policy empowering nurses to go over a doctor's head to protect patients.
When Carl Davis III was born by Caesarean section, he was blue. His Apgar scores -- a 10-point scale measuring a newborn's health at one, five and 10 minutes after birth -- were 1, 3 and 5.
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