Posted February 2, 2017 2:33 PM
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Jury awards $2 million for nerve injury during birth

birth 2-2-17,ph02
Kathryn L. Conway
Pamela Pantages
Pamela Pantages
By Lauraann Wood
Law Bulletin staff writer

A Cook County jury last week awarded $2 million to a girl who suffered cervical nerve injuries during birth.

Oladasoyin Lawoyin’s parents Lajide and Afolake sued physician Ayoade Akere and his medical group JIL Medical Consulting Ltd. in 2013, alleging Akere failed to recognize the baby’s shoulders had become stuck during the delivery process and injured her nerves when he used excessive traction to pull her through the birth canal.

Lajide Lawoyin was admitted to St. Anthony Hospital for an elective labor induction in December 2006. Lawoyin had gained a significant amount of weight during her pregnancy, which was consistent with the risk that her baby could encounter shoulder dystocia during the delivery process, said Kathryn L. Conway, an associate at Power. Rogers & Smith LLP who represented the plaintiffs.

Akere — the family’s doctor who did not have privileges to use a vacuum — called the hospital’s in-house physician to employ the technique as a delivery aid.

But using a vacuum poses the risk of the baby’s shoulders getting stuck as well, Conway said.

“When you suck the baby forward, it’s more likely that the baby will get stuck because it doesn’t make the cardinal rotational movement that it would otherwise make traveling down the birth canal,” she said.

Although the in-house physician applied the vacuum, Conway said everyone at trial agreed Akere delivered Oladasoyin’s shoulders.

But the baby suffered injuries to the nerves that run from the middle of her cervical spine down her right arm, Conway said, and she was born with what her parents described as a “floppy, lifeless,” arm after Akere pulled too hard to accomplish delivery.

Akere did not notify Oladasoyin’s parents of the injury directly after birth, Conway said. Instead, she said, he told them about their daughter’s condition upon discharge.

“He claimed that he did not learn of the injury until days later,” she said.

Oladasoyin’s condition has improved in the 10 years since the incident, Conway said, but the injury is permanent.

“It manifests itself in range-of-motion issues with the right arm and shoulder,” she said. “She can lift her arm upward but not 180 [degrees] straight above her head. She can put her hand on her head, but she can’t reach down [the back of] her head or back.”

The plaintiffs’ lawsuit also originally named the physician who applied the vacuum, but that doctor settled for $300,000 through personal negotiations ahead of trial, Conway said.

In denying the plaintiffs’ allegations, Conway said, Akere contended Lawoyin’s internal cervical contractions caused Oladasoyin’s injury before any physician had the opportunity to touch her.

He also contended there was no evidence of shoulder dystocia in the delivery process, since his medical records indicated no shoulder dystocia occurred, and that no individual present in the room during delivery testified to such an occurrence.

“That’s what made the case so tricky. In a lot of these brachial plexus injury cases, you have the benefit of knowing there was shoulder dystocia,” Conway said.

But to defeat Akere’s contentions, she said, the Lawoyins took an approach that was “basically one of circumstantial evidence.”

The plaintiffs highlighted Lajide’s several risk factors for shoulder dystocia as well as Akere’s inexperience in baby delivery, and they presented an expert who testified there was “no way” the baby’s injury could have happened as the doctor alleged, she said.

Clausen Miller P.C. shareholder Robert L. Reifenberg and senior associate Kathleen M. Klein represented the defendants. Klein deferred comment to Reifenberg, who could not be reached for comment.

Conway said the parties did not engage in mediation ahead of the weeklong trial before Circuit Judge Thomas J. Lipscomb.

On Jan. 20, a jury awarded Oladasoyin $500,000 for disfigurement from the injury, $250,000 for past and future disability, $500,000 for past and future pain and suffering, $400,000 for past and future medical expenses and $350,000 for future lost earnings.

After hearing the verdict, Conway said, the family felt validated in believing something happened during delivery that shouldn’t have — especially after the baby’s arm didn’t improve as quickly after discharge as Akere told them it would.

“For him not to notice a floppy, lifeless arm [during his initial newborn assessment] … is pretty shocking — it’s hard to believe. I suspect that the jurors did not believe he was not aware of the injury,” Conway said. “I think they feel validated that they had the suspicion that they weren’t getting the full story and were able to bring forward a full story of what we believe happened.”

The Lawoyins were also represented by Pamela Pantages of the Becker Law Firm in Cleveland.

The case is Oladasoyin Lawoyin v. Ayoade Akere, et al., 12 L 1645.

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