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IOWA CITY — An Iowa City couple this week received a nearly $98 million civil verdict after suing Mercy Hospital in Iowa City after their newborn suffered permanent brain damage when health care providers “improperly used forceps and a vacuum, crushing the baby’s head” during delivery.
The infant’s parents, Andrew and Kathleen Kromphardt, brought the medical malpractice lawsuit against Mercy Hospital, Dr. Jill Goodman and OB-GYN Associates for negligence throughout her pregnancy, labor and birth in 2018.
The Johnson County jury’s verdict found the hospital and clinic were equally negligent and equally responsible for damages — future medical and custodial care, loss of future earning capacity, past and future pain and suffering, past loss and future loss of function of the mind and body — awarded to the plaintiffs. The jury awarded $97.4 million to the Kromphardts.
Geoffrey Fieger, a nationally known personal injury lawyer in Southfield, Mich., Kromphardts’ lawyer, said in a statement this represents the “largest verdict” ever made in the state for a birth trauma case. Fieger, Matthew Patterson and Jack Beam in Chicago, Ill., and Fred James, a Des Moines lawyer, tried the 14-day trial, starting March 1 in Johnson County District Court.
Fieger has defended some nationally high profile clients, such as Dr. Jack Kevokian — convicted in 1999 for murder, who believed doctors should be allowed to assist patients with the right to die.
"The acts of malpractice committed by OB-GYN Associates of Iowa City and Mercy Hospital were egregious,” Fieger said in the statement. “As a result of their malpractice by improperly delivering a baby with forceps and a vacuum, and crushing his head, producing permanent brain damage. They not only destroyed the life of the little baby, Scotty, but his entire family who must care for him for the rest of his life."
The jury deliberated about 90 minutes last Friday following closing arguments. They returned a verdict about 3 p.m. Monday.
“Mercy Iowa City is disappointed in the verdict,” hospital officials said in a statement to The Gazette. “While we respect the legal process, we disagree with the jury's conclusion and will consider all available options. Our primary focus remains on providing high quality care to our patients and families.”
Cause of injuries
James, the Des Moines lawyer, in a phone interview Tuesday said there were three main issues that resulted from treatment and caused the infant’s permanent injuries.
Kathleen Kromphardt, 39 at the time, was admitted about 1 p.m. Aug. 11, 2018, with painful contractions. First, her baby was having difficulty tolerating labor. The baby was doing well until about 2 p.m. and started having fetal distress — fetus not receiving enough oxygen. Appropriate interventions were taken, which helped until 3 p.m. and then the fetal distress worsened.
James said a cesarean section should have been performed but wasn’t. The yet-unborn child suffered hypoxic brain injury — meaning the infant wasn’t receiving enough oxygen supplied to the brain. The second cause of injury was the use of forceps, which slipped off the baby’s head twice and resulted in a skull fracture above the left ear — causing brain damage.
The third issue was when health care providers used a vacuum, which was attached to the infant’s head to pulled out the baby, James said. There also was hemorrhaging in the brain.
“If the baby had been born by C-section between 3 and 3:45 p.m. the baby wouldn’t have any injuries,” James said.
After birth, the infant was transferred to the University of Iowa Hospitals and Clinics in Iowa City and diagnosed with ischemic brain injury, seizures, facial nerve palsy and skull fracture with subdural hemorrhage — caused by head injury, according to the lawsuit. The baby stayed in the newborn intensive care unit for 46 days and was discharged Sept. 26, 2018.
Now, the 3-year-old has cerebral palsy, a learning disability, can only stand and take steps with assistance, requires 24-hour care for the rest of his life and likely not be able to work, James said.
What happens now
A verdict in a medical malpractice suit doesn’t mean the Kromphardts will receive the amount awarded by the jury — at least not any time soon, according to a legal expert. It may be a long road ahead for the family because now they will enter a new stage of litigation — post-trial motions.
Tim Semelroth, a Cedar Rapids lawyer who handles personal injury and medical malpractice cases, said post-trial motions can now be made by the defense. The award likely exceeds their insurance limits, he said, so the defense could ask for a “remittitur” from 6th Judicial District Judge Kevin McKeever, who was the trial judge. Such a motion means he would review the case and could reduce the verdict or grant a new trial.
If the judge finds the evidence doesn’t support the verdict, he may lower the award, Semelroth said. Or the judge could rule the jury made an error applying the law. But if the award is reduced, a plaintiff may not accept it and ask for a new trial.
The defense can also file an appeal, Semelroth said. In the meantime, the two sides could negotiate a settlement. Typically, if a settlement is reached, it wouldn’t be made public. A stipulation of the settlement would likely call for confidentiality.
Semelroth said the judge could take weeks or months to make a ruling. However, his ruling will be public.
An appeal also would be on the record, but could take months or years to conclude before the plaintiffs receive any money.
“It’s a long road before we know what is going to happen,” Semelroth said. “Ultimately, we don’t know what this family will receive or when they will receive it.”
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Michaela Ramm of The Gazette contributed to this report.