Trial Magazine

Byrom v. Johns Hopkins Bayview Med. Ctr. Inc., No. 24-C-18-002909 (Md. Cir. Ct. Baltimore Cnty. July 1, 2019)

According to the Centers for Disease Control and Prevention, the maternal death rate more than doubled between 1987 and 2015 in the United States.¹ In fact, the United States has the worst maternal death rate in the developed world.² Legislative efforts to improve maternal care have been slow,³ but trial lawyers are ­holding hospitals and their staff accountable when tragedies occur. A recent ­Maryland case involving a young mother and her injured newborn resulted in a record verdict, sending a powerful message that better obstetrical care is essential.

Erica Byrom, 16, was diagnosed with severe preeclampsia at 25 weeks pregnant. Doctors also diagnosed potential intrauterine growth restriction and a deficiency of amniotic fluid, putting the baby at risk of low birth weight.

Erica was admitted to MedStar ­Southern Maryland Hospital in Clinton, Md., but the hospital lacked a Level III NICU, so she was transferred to Johns Hopkins Bayview Medical Center in ­Baltimore on Oct. 20, 2014. That evening, a doctor performed an ultrasound and determined Erica was 25 weeks and three days pregnant, she had a strong fetal biophysical profile, and fetal heart tracing was “reassuring” for the gestational age. Erica signed a consent form for a “possible cesarean section” and awaited an “official” sonogram.

The next day, physicians erroneously dated Erica’s pregnancy at 23 weeks and six days, plus or minus 14 days. They estimated fetal weight at 1 pound, 5 ounces. However, inexplicably, both the hospital’s maternal-fetal medicine and NICU physicians began counseling Erica about options for a nonviable fetus, telling her that the baby weighed only 14 ounces and had no chance of having a normal brain.

Erica was told that doctors would not resuscitate her baby and that no neonatologist would be present at delivery. In addition, she was told that she could ­terminate the pregnancy, although termination at this stage would have ­violated Maryland law and Johns ­Hopkins’s network-wide policy. As a result of this counseling, Erica declined a C-section and the hospital discontinued continuous electronic fetal monitoring.

A day later, the Johns Hopkins head of labor and delivery discovered the error—Erica’s child was viable, at more than 25 weeks gestation and 1 pound, 5 ounces. Instead of telling Erica of the error and of her baby’s viability, physicians re-counseled her about her options for induction or C-section as treatment for her preeclampsia.

After Erica chose induction, she was in labor for 22 hours without fetal monitoring. Her child, Zubida, was consequentially born with a brain injury, with no pulse detected in the umbilical cord at delivery, signs of severe metabolic acidosis, and multi-organ injury—all indicators of oxygen deprivation at birth. Zubida has been diagnosed with cerebral palsy and requires 16 hours of skilled nursing care daily.

At trial, Baltimore attorneys Keith Forman, Mary Koch, and Sarah Smith argued that Zubida’s injuries stemmed from the hospital misinforming Erica about her daughter’s prognosis during delivery and improper care during labor and delivery. They argued that the standard of care was violated in several ways: Induction was not an appropriate option for Erica due to her severe ­preeclampsia, and when Erica agreed to the induction, she was given an excessive dose of Cytotec, which also violated hospital policy. Had the hospital provided Erica with correct information about Zubida’s prognosis, Erica would have elected to have an emergency C-section, avoiding Zubida’s brain damage and cerebral palsy.

Now nearly five years old, Zubida is totally dependent on others for her care and can never be left alone. Unable to walk or talk, she receives all meals through a feeding tube. Expert witnesses for the plaintiffs explained to the jury that Zubida’s injuries are permanent and that she will need at least the same level of care for the rest of her life.

The jury awarded $229 million, which the attorneys said is the largest birth injury verdict in the nation. The verdict included $25 million in ­noneconomic damages and $200 million­ in future damages. Posttrial, the court reduced the verdict to approximately $205.4 million to conform to Maryland’s cap on noneconomic damages in medical negligence claims.

“Defendants in these cases look at verdicts and start talking about runaway juries,” Koch said. “But the jurors in this case carefully considered the evidence on both sides, and it was clear that they wanted to ensure Zubida was cared for in the best way possible throughout her lifetime.”

“The obstetrical community has been defending itself from lawsuits about patient safety failures for decades, and this verdict is the culmination of those failures,” Forman said. He added that recent news reports indicate “the maternal death rate in the United States is akin to that of a third world country” and “what’s been lost in those reports is the related injuries to children like Zubida.”

“It’s time to flip the script and change the narrative—we need to educate physicians and hospitals on how they must act to prevent these tragedies,” added Smith. “We put forth a lot of evidence about the cost of Zubida’s future care and the impact of interest rates to ensure the jurors understood that Zubida needed this money to have the ability to live a high-quality life.”

Maureen Leddy is an associate editor for Trial.

1. Ctrs. for Disease Control and Prevention, Pregnancy Mortality Surveillance System (June 4, 2019), https://tinyurl.com/y338uj24.
2. Nina Martin & Renee Montagne, U.S. Has the Worst Rate of Maternal Deaths in the Developed World, NPR (May 12, 2017), https://tinyurl.com/yccnpp6s.
3. Lauren M. Whaley, Will New Maternal Health Legislation Reduce Deaths—Or Just Delay Action?, USC Annenberg Ctr. for Health Journalism (Jan. 30, 2019), https://tinyurl.com/yym65odu.