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A Camden County Judge approved a $9.5 million settlement for RD’s client for medical malpractice in the NICU. This was for an eight-year-old girl who sustained significant brain injuries just weeks after her premature birth at a hospital in South Jersey. It was the 5th largest settlement in New Jersey for 2020.

What Actually Happened?

The alleged malpractice occurred during the treatment of the 14-days old infant in the NICU. At that point, the premature but stable infant began to develop a rash on her left arm. NICU initially diagnosed the rash as a baby rash. However, two days later, herpes simplex virus was the main suspect. Additionally, an anti-viral medication started pending the results of PCR testing from samples obtained at the treating hospital but sent to an outside hospital lab for testing. The herpes simplex virus is famous for being especially devastating to infants if immediate anti-viral treatment is well under way.

Plaintiff alleged that the devastating injuries resulted from a tragic miscommunication of a critical laboratory test. The test was incorrectly entered into the treating hospital’s electronic medical record as negative (when it was actually positive). Furthermore, it then relied upon by the neonatology team to discontinue the anti-viral drug. This drug would have likely cured an early stage herpes simplex virus in the infant before it caused brain damage. Compounding matters was the failure of the NICU team to verify the actual laboratory test result from testing laboratory. And, their decision to discontinue the anti-viral drug without knowing the results of two additional PCR laboratory test samples that the testing hospital completed and timely reported, but for reasons unknown, never recorded into the electronic medical record of the treating hospital.

These tragic errors resulted in the delayed and incomplete treatment of the herpes simplex virus. It allowed the virus to penetrate the infant’s brain over the next 14 days. This resulted in herpes encephalopathy, cerebral palsy, and a grave prognosis for her future life. The infant was only 16 days old when the alleged medical malpractice in the NICU occurred.

Lou DeVoto Handled the Case for Rossetti & DeVoto, PC.

Plaintiff sued the treating hospital and its laboratory assistant for negligence in entering the wrong result. And, sued members of the NICU clinical team for discontinuing the anti-viral drug before obtaining all of the test results. In addition, the plaintiff alleged that the doctors should have diagnosed the herpes simplex virus two days earlier than it was. And if they had done that, the chances of successful treatment would have greatly increased. This is because the virus would have even been less likely to have spread to the infant’s brain.

Plaintiff’s experts relied heavily upon two negative ultrasound tests that showed no brain damage having occurred prior to the start of the anti-viral drug. “Our experts determined that had the herpes virus been diagnosed and treated two days earlier, when the first signs of herpetic rash appeared on the infants arm, the virus would not have spread to the infant’s brain and this tragic outcome would have been avoided.”

All defendants denied liability and causation. They stated that the injuries sustained by the infant were related to prematurity and an in utero infection. And, even if caused by the herpes simplex, she would likely have had an extremely poor neurological result citing poor statistical outcomes in studies from peer-reviewed journals even with timely and complete anti-viral treatment.

RD was able to counter the defense. This was by producing more recent and significant peer-reviewed studies. They showed much better statistical outcomes in infants who received a higher and longer dose of the anti-viral drug therapy, especially when administered in a timely manner. This confirmed the medical malpractice in the NICU happened.

Aftermath of the Medical Malpractice in the NICU Case

The child is now 9 years old, wheelchair-bound and in need of lifelong care. Moreover, her 75-year-old grandmother cares for her. She became her legal guardian in 2015 when both parents lost custody due to addiction. She has made significant progress in her rehabilitation and while non-verbal, does understand her surroundings and is able to make her needs known in other ways, including by computer. A Special Needs Trust was established for the infant that will provide for her life-long needs. Said DeVoto: “We are extremely satisfied knowing that our client will now have the much needed medical and financial resources to make her life more enjoyable and productive and to hopefully maximize her quality of life well into the future.”