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High-Low Deal Delivers Cash, No Fault Call

From the Chicago Law Bulletin by Laura Ann Wood, Staff Writer   
 Despite a Cook County jury’s zero-dollar verdict, the defendants will still pay plaintiff Sabrina Zaya and her son, Anthony, $1.5 million.
This came after the defendants entered into a high-low agreement before the jurors returned their decision.
 The jury, after about two days of deliberation, found the defendants, a doctor and hospital who helped deliver a baby that later showed developmental disorders, were not at fault.The verdict was issued on Nov. 6 in a case that alleged Rush North Shore Medical Center — now called Skokie Hospital — and one of its doctors failed to timely administer antibiotics to Zaya’s son to prevent an infection that led to a brain disease in June 2008.
Zaya, who was pregnant with twins, tested positive for group beta streptococcus vaginal infection — a colonization of bacteria found in 20 to 30 of all pregnant women. The infection led Zaya to develop chorioamnionitis, an infection of a mother’s amniotic fluid as well as the membranes that surround her fetus.
Mothers who remain GBS-positive around the time of delivery receive a course of antibiotics at least four hours before birth so their babies do not contract the infection, said sole practitioner Zane D. Smith, who represented Zaya.
 “It’s a really bad bug for a child,” he said. “It can cause brain damage, it can cause respiratory problems, it’s a bad bug.”
After two phone calls to her obstetrician-gynecologist Suzanne Ashby complaining of leakage, fever and chills, Zaya visited and was admitted to Rush North Shore to prematurely deliver her twins by cesarian section in June 2008.Zaya had received a dose of antibiotics to treat her GBS before delivery, Smith said, but she gave birth before the medication could take the four hours to reach and have the full affect on both infants.
 “Usually, that’s not a problem,” Smith said. “All you do, then, is give the antibiotics directly to the child when the child is born.”
Rush North Shore ordered the antibiotics for first-born Anthony, who didn’t immediately show any direct signs of infection, Smith said. However, he said, the medication was never administered — partly because Anthony had been quickly transferred to a different hospital where he later received the antibiotics.
About a month later, a CT scan of Anthony’s brain showed he’d been born with periventricular leukomalacia — a disease that destroys a baby brain’s white matter in the areas surrounding its ventricles. Babies don’t have to be premature to develop PVL; they can also get it from being infected while in the womb.
While the disease can manifest itself in several different ways, Smith said, Anthony’s disease surfaced as cerebral palsy. Anthony is cortically blind — a condition in which his brain cannot interpret visual signals — may have hearing deficits, is spastic quadriplegic and cannot communicate with clear articulate words.
“And, of course, you know, there’s his twin sister who’s progressing beautifully,” he said.
 Zaya filed a lawsuit in Cook County Circuit Court in 2010 against later-dismissed Evanston Hospital, Ashby, Rush North Shore and several other doctors and residents who had gotten dismissed during the trial.She alleged the medical professionals failed to administer adequate care to her and her unborn children when they allowed too much time between when she began complaining of problems and when she received pre-delivery GBS antibiotics.
“In our case, the jury had the question of, “Well, did he get it from prematurity, or did he get it from being infected?” Smith said.
And while Zaya focused on the infection, Rush North and Ashby focused on prematurity.
 David S. Waxman, a partner at Arnstein & Lehr LLP who represented Rush North Shore and doctors who had were dismissed at trial, said the defense’s position centered on a mother’s bodily inflammatory response that resulted from her infection. That response process, Waxman said, creates blood chemicals that pass over into the fetus and affect a baby’s brain.“And because the baby is premature, it’s brain is not fully developed and it’s not able to fight off those toxic blood components from the mom that may not be a big deal if the baby was actually at term,” Waxman said.The dismissed defendants were also represented by George P. Apostolides, a partner at Arnstein & Lehr.
 Waxman said the parties did not engage in settlement discussions until about a week before trial, when Zaya demanded $15 million. He said the defendants never entertained the thought of meeting that amount and kept their offer at about $500,000 “through most of trial” until Zaya and the hospitals entered into the $1.5 million to $9 million high-low agreement.
  Circuit Judge Edward S. Harmening presided over the four-week trial, which included a day-in-the-life video depicting how Anthony manages functions such as going to school and enjoying family time.“It showed him to be the lovely boy that he is with the very significant disabilities that he has,” Waxman said.
William J. Rogers, a partner at Swanson, Martin & Bell LLP who represented Ashby and other doctors dismissed during trial, said Harmening was “excellent” during trial, as he kept the lawyers on task and the case moving forward. He said Harmening also worked well with the jurors in helping them pay attention along with three alternates.
 “Judge Harmening is just an excellent judge,” Rogers said. Waxman said the verdict has left his clients “ecstatic.”“The folks at North Shore have all of my respect because it’s very easy to cower at the prospect of a neurologically impaired child and litigation involving that condition,” he said. “But they made the decision that this was the right case to fight, and I’m so pleased that we were able to validate their decision to go forward.”
 Michael C. Goode, a sole practitioner who also represented Zaya, said the case came down to a tough choice between two well-plead and meritorious sides.
“I don’t think we got out-lawyered, I don’t think we got out-doctored, I just think that what happened is the jury measured it, and they took an extremely conservative approach to their decision.”Goode said the high-low agreement was a smart choice because a consensus between parties, court staff and the defense’s risk management team predicted a verdict for the plaintiff could have ranged between $15 million to $30 million.
 The agreement protected both the defense from being exposed to that size a verdict, Goode said, and Anthony’s family from receiving no money with which to plan for his future care.“We all, both sides, did the right thing — not just for our clients but for the system. As corny as that sounds, this worked,” Goode said. “The old saying is, ‘A good resolution of any case is when everybody walks away equally unhappy.’”Rogers said overcoming natural empathy and sympathy can be hard for anyone who hears a lifetime birth injury case such as Zaya’s.
 “I think there’s a natural empathy and sympathy of anyone hearing that story to want to help those people, award them money or whatever,” he said. “So I think on the defense side, one of the things you have to hope the jury can get over is “is the jury willing to listen to all the evidence and make a tough decision.”
The jury’s verdict makes it good to know people are willing to listen to all the evidence and make that kind of decision, Rogers said.
“I think that’s hard for any human being to do,” he said.Ashby was also represented by Kristine C. Reveille, an associate at Swanson, Martin & Bell.
  The case is Anthony Zaya et. al v. Evanston Hospital et. al, 10 L 6533.