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December 21, 2011

Case Report

Malpractice settlements for abused child reach $7.35 million

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Partners David Barry and Tony Agudelo have obtained a settlement with the last of the defendants in a malpractice case on behalf of the estate of a severely abused child who eventually sustained a traumatic brain-stem injury that put her in a coma for several months, and left her permanently and deeply disabled.

The settlements to date total $7.35 million and are being used to create a special-needs trust for the child’s benefit.

Having earlier reached settlement agreements with a number of medical providers–a pediatrician, a nurse-practitioner, a mental health center, a social worker, and a psychiatrist–who saw and treated the child (and, it was alleged, negligently failed to report clear signs of abuse, instead accepting other explanations for the child’s injuries), the SRBC lawyers recently reached a settlement with the last remaining group of defendants, a provider of outpatient behavioral services and its two employees.

Case Information

The plaintiff is the Conservator of a minor child, now 17 years old, who was living with her maternal aunt who had adopted her and her adoptive mother’s husband
after the parental rights of the child’s biological parents had been terminated. The defendants, who treated the child over the course of several years, were (1) a mental health center and a licensed social worker employed by the center (2) a psychiatrist who worked at the center and (3) an institutional provider of outpatient behavioral services and its social worker employee and her supervisor.

The minor child was first seen at the defendant mental health center by the defendant licensed social worker in October, 2002. Approximately two years later she began treating with the defendant psychiatrist. The child received outpatient behavioral services through another social worker for a period of about 14 months beginning in the summer of 2004. The plaintiff alleged that the defendants were negligent in failing to diagnose physical abuse of the child by her aunt and/or her husband, despite their awareness of the child’s many injuries, including (1) severe burns, (2) fractured teeth, (3) head and facial injuries and multiple cuts and bruises. The plaintiff contended that the defendants were negligent in accepting the explanation given by the child’s aunt, and by the child herself, that these injuries were either self-inflicted or accidental.

Plaintiff’s experts were prepared to testify that the defendants should have filed reports with the Department of Social Services (now the Department of Children and Families) stating that the child had been physically abused and recommending that she be removed from the home and placed in a residential facility so that she would be safe from further harm. Indeed, in August, 2005 DSS wanted to place the child in a residential program but the defendant social workers actively opposed this recommendation.

On September 11, 2005, less than two weeks later, the child was taken to the hospital with a traumatic brain stem injury inflicted by her aunt and/or her husband. The injury rendered the child comatose for more than four months. After finally regaining consciousness, the child was transferred on January 26, 2006 to a rehabilitation hospital where she remained for three years undergoing extensive rehabilitation. She was finally discharged to the care of a foster family who subsequently adopted her. The child remains confined to a wheelchair with severe intellectual impairment, a significantly reduced ability to communicate and is incontinent of bowel and bladder.

The defendants denied all the plaintiff’s allegations and were prepared to support, through expert testimony, their contention that they were not responsible for the injuries sustained by the child.
The defendant mental health center and its licensed social worker were insured for professional liability during successive policy periods by different insurers, each of which had a primary policy with a $1 million limit and an excess policy with a $1 million limit.

Following a mediation held in the fall of 2010 and negotiations that continued thereafter, one of the insurers paid $1,500,000.00 in April, 2011 to settle the claims against the mental health center and its employee. The other insurer took the position that the plaintiff’s claims were excluded under its policy and sought a declaratory judgment to that effect. With the mediator’s assistance, the plaintiff and that insurer agreed to a “high-low” settlement, the amount of which will depend upon the final outcome of the declaratory judgment action now pending in federal court.

The defendant psychiatrist had a professional liability policy with a $1 million limit. In March, 2011 his insurer paid $950,000.00 to settle the claims against him.

Finally, the claims against the defendant provider of outpatient behavioral services and its two employees settled for $3 million following a mediation that began in June, 2011. Although the claims did not settle at the mediation, the mediator remained actively involved after the mediation and assisted the parties in reaching a final resolution of the claims in November, 2011.

The first settlement in this case was in June, 2010 in the amount of $1,900,000.00 against the defendant pediatrician and her nurse practitioner. That settlement was  reported on September 6, 2010 in 39 MLW 85. With the most recent settlement of $3 million against the provider of outpatient behavioral services, and its employees, the plaintiff has received a total of $7,350,000.00, the net proceeds of which will be deposited in a Special Needs Trust established for the minor child’s benefit, and the malpractice action is now terminated. The plaintiff will either receive an additional $1,350,000.00 (the “high”) or $200,000.00 (the “low”) depending upon the final outcome of the declaratory judgment action pending in federal court.