Delayed C-Section Resulting In Lifelong Injury: A Breakdown Of PA Damages

April 25th, 2024

Newborn with parents

By Dean I Weitzman, Esq.


Victoria Upsey arrived at Pottstown Medical Center 36 weeks into her pregnancy. She was showing signs of placental abruption – a medical term for the placenta detaching prematurely from the lining of the uterus. An ultrasound was ordered to determine the health of the yet-unborn baby Upsey was carrying, but the out-of-date equipment was unable to locate a heartbeat.

Upsey was informed that her baby had died in utero. In disbelief, she argued with her medical care team, telling them that she could still feel her baby kicking inside of her. Over an hour later, after an ultrasound technician was called in from home, Upsey was told that there was in fact a heartbeat and an emergency C-section was performed.

The C-section was too late. The baby had been deprived of oxygen for too long while still in the womb and now, at 3 years old, she suffers from spastic quadriplegic cerebral palsy.

A Delayed C-Section And A Hospital’s Negligence

The C-section was delayed a total of 81 minutes because the obstetrician believed Upsey’s baby had already died. A Philadelphia jury did not pin responsibility on the baby’s birth injuries on the doctor, however. The jury held the hospital 100 percent at fault. The ultrasound equipment that it provided was out-of-date – despite a requirement that it be serviced annually, the machine had not been inspected in 10 years. Also, there was no ultrasound technician available to double-check the obstetrician’s findings right away because the hospital did not keep an ultrasound tech on staff on Sundays.

The jury awarded Upsey and her daughter $78.5 million in damages for the hospital’s negligence.

Calculating The Incalculable: Damages In An Injury Case

The total damage award in this case, near $80 million, is intended to cover the mother and her child’s pain and suffering, any medical expenses already incurred and any future medical expenses that are the product of her birth injury and any lost earnings.

A damage award is intended to put the injured person and his or her family in as close to the position he or she would have been had the bad act (in this case, the hospital’s negligence) not resulted in injury.

Past Medical Expenses

Pennsylvania law allows an injured person to recover the cost of medical care that became necessary because of the bad acts of the other party. In determining an amount to award for past medical expenses, a jury must consider whether the cost of medical services were reasonable and were required because of the other party’s actions.

In this case, both the mother and the young girl required emergency care because of the delayed C-section. It is quite likely that the newborn spent a considerable amount of time in the NICU and required specialized care because the delayed C-section resulted in oxygen deprivation and birth injury. Typically, itemized bills from the treating hospital or health care provider will be useful in showing the extent of past medical expenses related to a personal injury or birth injury claim. There are additional considerations related to the recovery of past medical expenses when an insurance company or Medicare is involved.

Future Medical Expenses

Generally, an expert witness must be called to testify that a patient will incur medical expenses in the future after a medical malpractice incident. The expert may also have to estimate what those future expenses will amount to. While it is impossible to say with 100 percent certainty what costs will arise in the future, there must be some evidence or testimony that will allow a jury to put a number on an award of future medical expenses.

Incidental Expenses

Damages that result from an injury that don’t relate specifically to medical care may still be awarded as incidental damages. Pennsylvania law tries to shift the burden of injury-related expenses to the person that caused the injury rather than forcing the injured person to carry the expense of someone else’s negligence or bad acts. When an injury takes away one’s ability to walk, requiring the use of a wheelchair to get around, renovations to the home may be necessary to allow that person to continue to live on his or her own. The cost of those renovations may be awarded as incidental damages to the injured person.

Future Earnings Or Loss Of Earnings Or Earning Capacity

An award for lost earnings is common for when an injury results in a short break from work. The injured person is entitled to compensation for the time he or she was not able to work because of the negligence or bad acts of the at-fault person. An award for the loss of earning capacity, however, is appropriate when, as in this birth injury case, an individual is permanently injured.

Compensation for future earning capacity may be awarded when an injury will stop the individual from ever entering the workforce, from returning to work or from being promoted beyond the level that he or she is already at because of the limitations of the disability caused by the injury.

Physical And Mental Pain And Suffering

Pain and suffering are considered non-economic losses or general damages. They do not readily relate to a dollar figure necessarily, but they are real losses suffered by an injured person because of another party’s bad acts or negligence. Pain and suffering includes mental anguish, disfigurement and the loss of enjoyment of life or life’s pleasures.

Pennsylvania law leaves determining a dollar amount to affix to damages for pain and suffering up to the jury. Any award should be based on what the jury believes is fair compensation for pain and suffering and not out of sympathy for the injured person. Recognizing that each person feels pain differently, there is typically no right or wrong amount that juries must consider when making an award for pain and suffering.

Punitive Damages

Punitive damages are limited in Pennsylvania. They are dollars that are intended to serve as punishment to the wrongdoer or negligent individual rather than to serve as compensation for expenses that the injured person has or will incur. Punitive damages are also intended to act as a deterrent to others and serve as a warning of the consequences of committing a similar bad or negligent act. In medical negligence cases, punitive damages are limited to 200 percent of the compensatory damages awarded in the same case.

Punitive damages that are awarded by a jury are split, by law, among the injured person and MCARE. Seventy-five percent of punitive damages go to the injured person and 25 percent go to Pennsylvania’s Medical Care Availability and Reduction of Error Fund (MCARE).

Putting a dollar figure on a catastrophic event, particularly a birth injury that quickly turned what should have been a joyful day into a lifelong struggle with cerebral palsy is not easy and will never come close to putting a family back in the same position it would have been but for the negligence of another. But, if a hospital’s negligence has injured you or your family, speaking with a birth injury attorney about securing the compensation you need to pay for medical bills, for rehabilitative therapy, for new wheelchairs and equipment as your child grows, can help take some of the financial stress out of a difficult situation.

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