The estate of an 18-month-old child who died while under the care of a home health nurse has settled its medical malpractice suit for $1.1 million, its attorneys report.
The boy, born prematurely and home after six months in the neonatal intensive care unit, died from hypoxic ischemic encephalopathy — brain damage suffered when he could not breathe through his clogged tracheostomy tube, said one of the plaintiff’s attorneys, Michael Rousseaux of Elam & Rousseaux in Charlotte.
Rousseaux said that when the child began struggling to breathe, the nurse attempted to suction the trach. When that didn’t work, Rousseaux said, the nurse panicked, failed to properly perform CPR, and failed to change the trach, though a new one was nearby.
“Changing the trach is a simple process that takes less than a minute and clears the airway if suctioning it doesn’t work,” Rousseaux said. “Knowing how to do this and when to do this is critical to caring for a ventilator dependent patient with a tracheostomy.”
Many details of the case, including the names of the parties and defense counsel, were withheld pursuant to a confidentiality agreement.
Rousseaux said that the child had been weaned from oxygen and was successfully being weaned from a ventilator, and that the family contracted with a home health agency to help provide the required constant care.
But while under the care of a home nurse, just hours after the parents left town for their first trip since their child’s birth, he woke up coughing and unable to breathe properly.
The nurse called 911 but hung up because she did not know the home address, Rousseaux said, and did not answer a call-back from emergency medical workers because she was attempting to make other calls.
“Six minutes later, the nurse called 911, and repeated, ‘I need 911’ 40 times in less than two minutes, without providing any useful information,” Rousseaux said. “By the time the first responders arrived, the child was non-responsive.”
The parents learned of the incident when their plane landed at their destination, but they were unable to get a return flight until the following day.
“Upon returning home, they were able to get to the hospital and spend the last few hours of their son’s life with him,” Rousseaux said.
Rousseaux said that after viewing video clips from a crib-side camera documenting the incident, in-house counsel for the home health agency agreed to discuss a pre-suit resolution, including mediation. But talks stalled when the defendants failed to offer more than the statutory cap for non-economic damages in medical malpractice cases, said Rousseaux, who argued that the caps should not apply where the nurse’s conduct constituted reckless disregard.
The plaintiffs filed suit, but a second mediation soon led to the settlement.
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SETTLEMENT REPORT — MEDICAL MALPRACTICE
Amount: $1.1 million
Injuries alleged: Wrongful death
Case name: Withheld
Court: Union County Superior Court
Mediators: Wayne Huckle (pre-suit) and Andy Cromer (second mediation)
Date of settlement: May 2021
Special damages: $28,000 in medical expenses
Attorney(s) for plaintiff: Michael Rousseaux and Bill Elam of Elam & Rousseaux in Charlotte
Attorney(s) for defendant: Withheld