Zubida Byrom likes to watch cartoons on her iPad and frequently smiles and says “hi.”
The Prince George’s girl, now 4-and-a-half years old, likely won’t say much more, according to the family’s attorney. She likely won’t ever walk. She relies on a feeding tube.
Her family hopes the round-the-clock care by a nursing staff will be paid for with the $229.6 million a jury awarded her Monday after finding Johns Hopkins Bayview Medical Center liable for brain damage she suffered during birth. Her lawyers believe it’s the largest medical malpractice verdict in the United States.
Such an award from a jury is rare and is certain to be reduced, perhaps substantially, according to legal experts. And as enormous as the outcome may be for the family, the ultimate award likely won’t improve the next family’s prospects in the legal system — and it likely won’t change the way care is delivered.
“It feels shocking because the jury just ruled,” said Joanne Doroshow, executive director of the Center for Justice & Democracy at New York Law School. “In followup, people always find that such a verdict is almost never paid out by the hospital. ….And you don’t stop injuries and death with lawsuits.”
Medical errors are the nation’s third-largest cause of death, and many more people are seriously harmed, according to research done at the Johns Hopkins University School of Medicine. Doroshow says better and safer methods of providing care have been developed, for doctors and hospitals who choose to follow them.
The suits are individuals’ means to fund sometimes enormous costs from preventable harm. The American Medical Association reports that more than a third of physicians have had a medical liability lawsuit filed against them during their careers.
Yet, patients lose more often than they win, the AMA finds. About 68% of claims are dropped or dismissed. About 7% are decided by trial verdict; of those, about 88% are lost by patients.
Erica Byrom, Zubida’s mother, was 16 went she went to Southern Maryland Hospital Center and was admitted to the labor and delivery department in October 2014. She was 25 weeks pregnant.
There, she was diagnosed with dangerously high blood pressure from preeclampsia, a condition of pregnancy that can cause complications for mothers and babies, such as seizures and premature birth.
She was flown to Bayview in Baltimore, where doctors told her that her baby could die or suffer brain damage, according to the lawsuit.
With that grim information, Byrom did not feel the urgency to more quickly deliver her baby via cesarean section, according to the suit. Labor was induced, and the baby was born vaginally two days later. Zubida was not quite one-and-a-half pounds.
At two minutes old, Zubida had no heart rate and wasn’t breathing. Doctors put her on a breathing tube and began chest compressions.
Byrom’s lawyers said that initial prognosis was mistaken and doctors could have avoided brain damage if they had administered the C-section. That failure resulted in brain injuries to the baby that have lifelong effects, according to the lawsuit.
Hopkins officials deny the claims and said the patient received appropriate care and was informed of all the risks from her condition. The hospital plans to appeal.
Mary Koch, Keith Forman and Sarah Smith, Byrom’s lawyers, said they gave careful consideration before deciding to pursue a case. Settlement negotiations with the hospital were unsuccessful, Koch said, and ultimately they filed a lawsuit.
“There was a very deliberate process where the case was vetted, and expert physicians in this specialty were consulted,” Koch said. “The jury heard the evidence over two weeks and came to the conclusion that standards of care were violated. And this beautiful little girl, she needs a high level of care and deserves to have a high level of care so she can have her very best life.”
Koch said the case may “shine a light” on medical errors, but ultimately her responsibility was only to Zubida and her family.
“The civil justice system is available to try and make people whole, and the only way to do that is with money,” she said.
A state cap will reduce the award to about $200 million, and the appeal could eliminate the award or result in a verdict for a lesser amount. The amount the family receives would also be reduced by lawyers’ fees.
Maryland and about 20 other states have a cap of some kind on awards, though Doroshow said many awards end up limited by what is available from insurance or what is later negotiated privately by doctors or hospitals.
Providers have sought caps, in some cases convincing their state legislatures that large awards increased insurance costs that were passed on to patients, though studies show that insurance is more affected by economic cycles and not the occasional large jury verdict, Doroshow said.
Other research has found that lawsuits also do not lead to doctors leaving the profession in large numbers. One study found 90% of doctors with five or more medical malpractice claims against them continued to practice medicine.
Two states, Virginia and Florida, have enacted birth injury funds that aim to vet and disperse funds more equitably to families.
A group called the Maryland Maternity Access Coalition, made up of providers, businesses and citizens, unsuccessfully sought such a fund after two other high-profile jury awards, one at MedStar Harbor Hospital and another at Johns Hopkins Hospital, both in 2012.
In the Harbor Hospital case, a Baltimore jury awarded $21 million to a Glen Bernie couple whose son was born prematurely. The boy’s parents said their son lost oxygen while in the womb and doctors should have performed a C-section rather than allow a prolonged vaginal birth. The boy was diagnosed with cerebral palsy. The case was upheld on appeal.
A month earlier, a city jury awarded $55 million to a Baltimore couple whose son was born at Hopkins Hospital. That family also alleged their son lost oxygen in the womb and doctors should have performed a C-section sooner. This child, too, has cerebral palsy. At the time, the $55 million was among the largest medical malpractice verdicts in state history. The case continues on appeal.
“The Maryland Maternity Access Coalition is very concerned about massive jury awards that will ultimately threaten access to obstetrical services, especially for poor, minority women,” said Beth Laverick, volunteer president of the group said in a statement Wednesday. “The Maryland General Assembly must reform medical liability in order to protect access to care and provide equitable compensation to families, as recommended by two recent independent state task forces.”
The coalition said there is a looming crisis, and it supports legislation to create a Maryland Children’s Special Needs Trust for Neurological Injuries, paid for by hospitals, to provide lifetime health care for children.
Amy Goodwin, a spokeswoman for the Maryland Hospital Association, said the hospitals “support efforts that provide rapid, comprehensive relief to families in the rare instances where there is an injury during childbirth.”
The hospitals also want greater predictability in medical liability. Goodwin said, “The high liability associated with birth injuries, as evidenced by this jury verdict, is a concern for Maryland’s hospitals as they balance steep payouts with the continued provision of delivery and other essential services.”
She said a survey last year found that the overall number of claims has been mostly stable from 2008 to 2018, but the overall annual hospital payout was nearly 140% higher — $73.5 million rose to $176 million. Most years, that means the payouts are about double the national average, she said.
Still, Goodwin said, the number of claims is about half the national average.
In 2017, there were 71,589 live births to Maryland residents. Of those, seven babies likely were born with a defect — that is about 1 out of every 10,000 live births -- according to a study done by Pinnacle Actuarial Resources Inc. The hospital association said this is due to a number of factors and not necessarily negligence.
Obstetrics payouts, which averaged $1.13 million in Maryland in 2018, are typically higher than other injuries because they require a lifetime of care. Surgical cases, by comparison, averaged $737,143, and nonobstetric medical malpractice cases generally averaged $477,711.
The hospital association said there should be more objective and scientific criteria used to determine costs, rather than expert testimony and estimates of care needs. Federal courts and 31 states rely on the Daubert standard, for example, which determines whose expert evidence is deemed reputable. Maryland does not.
Still, Goodwin said, no injuries is the goal.
“Though the overall number of birth injuries are very low compared to the total number of babies born in Maryland each year, any birth injury is one too many and Maryland’s hospitals strive for the best quality care for every family,” she said.