Joseph Power, Jr.: $35M settlement with U. of I. for brain injury during birth

Chicago Daily Law Bulletin, May 31, 2018, By Jordyn Reiland,Law Bulletin staff writer

Parents of a child who sustained catastrophic brain injuries during birth at the University of Illinois Hospital settled their medical-malpractice suit against the attending obstetrician and nurses for $35 million.

Though not directly party to the suit in Cook County Circuit Court, the settlement will be paid through University of Illinois funds and the school's excess insurance policy.

The $35 million amount ties a 2004 settlement for the highest ever reported for an Illinois birth injury, according to John L. Kirkton of the Jury Verdict Reporter, a division of Law Bulletin Media.

The highest reported Illinois verdict in a birth injury is $53 million from 2016.

Asha Atler-Super' s parents, Gia Super and Todd Atler, alleged in their lawsuit that their daughter would have normal brain function had she been delivered shortly after a fetal heart monitor showed her heart rate was decelerating and she was in distress - instead of more than two hours later.

Super arrived at University of Illinois Hospital on Dec. 18, 2011, to give birth to her daughter.

Hospital staff gave the mother Pitocin - a brand of oxytocin used to induce labor - at 7:30 p.m. and set up fetal heart rate monitoring. From then until 10 p.m., Asha's heart rate appeared to be normal, according to court records.

Midwife and nurse Carla Burdock, one of the defendants in the case, testified that from 10 p.m. until Asha was born 2 hours later, there were "late decelerations" in the fetus' heart rate.

The parents' attorney, Joseph A. Power Jr. of Power Rogers & Smith, LLP, argued Asha's fetal monitoring records were "non-reassuring" and "abnormal," and she should have been delivered sooner.

Had she been delivered between 10:30 p.m. and 11 p.m., she would have been "neurologically normal," according to the settlement agreement.

Obstetrician Heidi Leftwich, Burdock and nurse Binni S. Hagstrom, who were all treating Super, should have delivered Asha at 10:20 p.m. or shortly thereafter, Power said.

Asha was not delivered until 12:28 a.m., and there was no pediatric physician in the room at the time as required by hospital protocol.

No one notified a pediatric resuscitation team until three minutes after Asha was born. Asha was intubated 12 minutes after birth.

According to the settlement order, the delays resulted in a severe brain injury which resulted in delayed milestones, limited speech and cognitive injury.

Now age 6, Asha has spastic quadriplegia, cerebral palsy and seizures. She will need care for the rest of her life, and the settlement will provide the family with the ability to do that, Power said.

"They are happy to put this terrible occurrence behind them, move forward in their lives and get Asha the care she needs," he said.

Power said the defense attorneys argued the heart rate data was not as severe as plaintiffs' experts claimed and that Asha had preexisting issues before Super even got to the hospital.

In 2014, Super and Atler filed the medical-malpractice suit in Cook County Circuit Court against Leftwich, Burdock and Hagstrom, all employees of University of Illinois Hospital, which was also sued.

Almost immediately after the case was filed, the U. of I. filed a motion to dismiss, claiming the circuit court lacked jurisdiction to hear claims against the school under the Illinois Court of Claims Act.

Under the act, claims against the state and certain other groups for damages can only be brought through the Illinois Court of Claims. The boards of trustees for Illinois' four year public universities are included on that list.

Circuit Judge John H. Ehrlich dismissed both the board of trustees and the hospital from the case with prejudice. Power said the defendants were not pursued further in the court of claims.

Although dismissed as a defendant, the board of trustees was required to approve and pay any settlement because the board insures its employees and is responsible for their actions or inactions, Kathryn L. Conway of Power Rogers & Smith said.

Though the settlement was reached in March, Ehrlich entered a final order on the case on May 30.

The U of I. trustees approved the settlement at their May 17 board meeting in Springfield, according to its agenda. The board will contribute $15 million of the settlement, through its self-insurance fund. The remainder will be picked up by Zurich Insurance, an excess insurance carrier for the university, according to the agenda item.

The hospital and the board of trustees were represented by Robert H. Smith and Mary L. Golden of Lowis & Gellen LLP. They could not be reached for comment.

Super and Atler were also represented by Joseph W. Balesteri of Power Rogers & Smith.

Burdock is represented by Michael T. Trucco and Matthew A. Karsakow of Stamos and Trucco LLP. He could not immediately be reached for comment.

Leftwich is represented by Marilee Clausing and Charles C. Bletsas of Hall Prangle &Schoonveld LLC. They could not immediately be reached for comment.

Hagstrom is represented by Brian T. Henry and Michael A. Barry of Pretzel and Stouffer. They did not return requests for comment.

The case is Gia Super, et al., v. Carla Burdock, et al., 14 L 2727.

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