$40M to Delco girl with spinal injury in medical malpractice case

A 6-year-old Delaware County girl whose spinal cord was injured during birth has been awarded $40.3 million in one of the largest jury awards in that county in recent years.

Grayson Charlton of Springfield and a twin sister were delivered at Delaware County Memorial Hospital in Drexel Hill by Dr. Steven M. Troy, who along with the hospital and Crozer-Keystone Health System were hit with the judgment Tuesday.

The parents, Kira and Alex Charlton, filed the suit on their daughter's behalf in Delaware County Court in February 2013. The child's father is a Republican state representative, first elected from the 165th District in November 2016.

Before birth, Grayson had been in the footling breech position, in which her feet would have been delivered first. At trial, Grayson's attorneys, Timothy R. Lawn and Stephen E. Raynes, argued that Troy did not properly protect the baby's head and neck during such a high-risk procedure, Lawn said Thursday.

As a result of the delivery, the baby became paralyzed from the "mid-chest" down and is unable to stand on her own, Lawn said. Grayson, who is in the first grade, receives therapy several days a week, he said.

Between 2000 and 2016, only one other medical malpractice case in Delaware County reached a judgment exceeding $10 million, according to state judicial records. In that time, the defense won more than 86 percent of medical malpractice cases ending in verdicts.

"Delaware County juries historically have been very conservative, and they have been very strongly in favor of the doctor's positions," said Larry R. Cohan, a Center City attorney who specializes in medical malpractice cases. For damages to reach that high level, he said, the jury had to be convinced of the doctor's negligence.

Aaron J. Freiwald, a Center City attorney who has handled medical malpractice cases, called the amount of damages "unusual," but said it likely was warranted due to Grayson's medical condition.

"That child is going to have a lifetime of need, and that becomes very expensive when you project it out over that child's lifetime," he said. "I bet that there's going to be a lot of learning going on at Delaware County Memorial Hospital."

In court documents, Grayson's attorneys said Troy "did not have sufficient training, experience, or qualifications to undertake such a complicated delivery." They also said he conducted the delivery "aggressively."

At trial, Lawn said, Paul A. Caruso, a Harvard Medical School instructor and director of pediatric neuroradiology at Massachusetts General Hospital for Children, testified that Grayson's brain scans showed trauma during delivery.

That was the same conclusion reached by doctors at Children's Hospital of Philadelphia, where the baby was transferred days after birth. CHOP physicians administered an MRI and concluded that Grayson's injuries were due to "significant birth trauma," according to court documents.

Crozer-Keystone Health System issued a statement Thursday defending the Delaware County hospital's care of Grayson.

"We are deeply sympathetic to any patients and families who undergo such an experience," the statement said. "We strongly believe that the care provided in this case was compassionate, timely and clinically appropriate.  The case predates the current management and ownership of the hospital and health network."

Of the $40 million judgment, $30 million was set aside for Grayson's future medical expenses and $10 million was awarded for pain and suffering, Lawn said.

One legal expert said Thursday it was unlikely Grayson would receive an amount even close to the award.

"There is very little chance a verdict of this size will be paid out," Eric Feldman, a professor of health policy and medical ethics at the University of Pennsylvania Law School, said. "Assuming it is not appealed and overturned, the plaintiffs will end up with significantly less than the $40 [million], perhaps as little as 5 percent to 10 percent of that amount. It depends in part, of course, on the defendant's insurance coverage, as well as on the appetite of both parties to negotiate, [and] the plaintiff's need for cash sooner rather than later."

Because damages in medical malpractice suits are not capped in Pennsylvania, there is no limit to how much juries can award plaintiffs for non-economic reasons. A Republican-sponsored bill passed by the U.S. House during the debate over repealing Obamacare would have limited non-economic damages in medical malpractice cases to no more than $250,000.