Nebraska — Lisa Gourley was 36 weeks pregnant with twin boys when she noticed a lack in movement in her belly which she felt was weird but since she had an appointment the following day with her doctor, she waited. After the obstetrician listened to the heartbeats he told her that everything “looked good” and reassured her. The following day she noticed less movement and the following day after that, even less movement. She called her doctor’s office and was seen by his partner who performed an ultrasound and a fetal stress test. He noted that the heartbeat was indeed slow and there was not a lot of fluid around one baby and showed twin to twin transfusion syndrome, where one fetus gets it all and the other gets nothing. The standard of care in this situation is to have immediate cesarean surgery performed. She waited two hours for a doctor to arrive at the hospital. During that time one baby (Colin) was not getting enough oxygen. That delay was critical. Had the doctor delivered Colin right away, there would have been no brain damage. The entire disability was preventable. Colin was born with severe brain damage to all areas of his brain and the other twin was perfectly normal.
In 1987 and 1989 the same doctor who delivered the Gourley twins had two botched pelvic operations, both of which were settled secretly out of court. It was so critical that these babies be born right away. The nurses testified that the doctor called over to the hospital and Operating Room was prepared and ready but doctors weren’t there. Colin had lack of oxygen from placenta through cord and lack of blood flow and oxygen depletion for 5-8 minutes.
Why was the ultrasound not done on Monday when Lisa Gourley first complained that there was lack of movement in her belly? Why were the twins not delivered for two hours after determining this to be urgent? How could one doctor recognize that there was only once placenta feeding both babies and one not diagnose this? If the ultrasound would have been performed on that Monday when Lisa first complained of lack of movement, perhaps the outcome would be very different.
Colin Gourley will require approximately $6 million in order to have enough money for the rest of his life which will include money to care for him when his parents are gone. There was a three-week trial in which the Nebraska jury awarded $5.6 million in damage. The jury did not know that award would not be delivered because there is a cap in Nebraska. The trial judge reduced the verdict due to the cap. The effect of a cap on economic awards effectively takes away the power of the jury (the ability to be judged by peers). The Bill of Rights says jury determines question of fact and appropriate damage due to the fault of another. The cap is argued to be unconstitutional as the use of a jury is a constitutional right . It violates the right to a jury trial. The doctors and insurance companies appealed. Nebraska Supreme Court ruled the cap to be constitutional. The hard cap is $250,000 for non-economical damages (pain/suffering, non-enjoyment of life and harm).
Colin needed surgery after his first year of life for optical nerve injuries, he still does not see well. Since age 2 he has been requiring therapy. He had to learn to hold his head up, to sit up. He is severely mentally delayed. The jury heard the evidence and awarded his family $5.6 million which would cover the cost of people to care for him for the rest of his life but since there is a cap in Nebraska, this will never happen. He will end up with only a portion of the $250,000 award as the lawyers, court costs and unpaid medical bills were paid out of that. The result being that the family had no choice but to apply for Medicaid benefits which is funded by taxpayers. You and I will pay for Colin’s care for his lifetime instead of the responsible party.
How can the civil judicial system which purpose is to protect the innocent be so blinded by the obvious moral issue evident by this decision? Why aren’t the wrong doers paying for the damage they caused? The catalyst for implementing the caps was that it was supposed to reduce medical malpractice premiums and other health care costs. However, with all the information that has been gathered in those states that have caps, no such benefits have been acknowledged. Colin will never be able to earn a living, he will never have a family, he will never attend college. He needs care for the rest of his life; his future is unknown. What we do know is that because of the cap, he will now be cared for with money that comes from the taxpayer’s instead of the person responsible for the damage.
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