 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Commonwealth v. Bakke9/27/2005
The Workers' Compensation Commission awarded benefits and expenses under the Virginia Birth-Related Neurological Compensation Act, Code §§ 38.2-5009 through 38.2-5021, to Michele Bakke and Jonathan Bakke, parents and next friends of Jenna Marie Bakke. The Commonwealth of Virginia, Virginia Birth-Related Neurological Injury Compensation Program, and the Virginia Birth-Related Neurological Injury Compensation Program Board (collectively designated "the Program") contend the commission erred (1) in applying the Act's rebuttable presumption that the infant's injury is a birth-related neurological injury, (2) in finding that some of the physicians were the most qualified to evaluate the timing of the infant's injury, (3) in concluding that evidence was insufficient to rebut the presumption, and (4) in finding that the Program failed to prove a specific non-birth-related cause of the injury. We affirm the commission's award.
I.
During her pregnancy, Michele Bakke received a diagnosis of HELLP syndrome (hemolysis, elevated liver enzyme levels and low platelet count) and preeclampsia. Because of the life-threatening dangers to Bakke and her child associated with these conditions and because of Bakke's low platelet count, physicians delivered her child by cesarian section without labor. At her birth on September 2, 1999, the infant's gestational age was estimated to be twenty-nine weeks. She weighed .885 kilograms and was 33 centimeters long. The medical records indicate the infant had "NO RESPIRATION" at delivery and was intubated immediately. A handwritten note included within the delivery records shows that she "did make some resp effort." At that time, the infant's Apgar score was five. Five minutes after birth, her Apgar score was seven. When the infant was admitted to the neonatal intensive care unit, a note indicated her condition as "responsive in severe respiratory distress." The infant's chest x-ray report indicated "WHITE OUT LUNGS," and the infant was put on a ventilator, where she remained for a month. The discharge summary noted diagnoses for twelve diseases or conditions.
The medical records from the period of the infant's birth to her discharge from the hospital on December 7, 1999 are extensive. Likewise, the commission's record contains extensive testimony, reports, and other documents from physicians regarding the infant's condition at birth and later. In two succinct sentences, the commission addressed the nub of the issue in this case:
The medical professionals who have evaluated [the infant's] medical history disagree regarding when and how actually sustained the injury causing her cerebral palsy. While Dr. [James T.] Christmas and the members of the [medical panel] who reviewed [the infant's] case have opined that did not sustain an injury during the course of her labor, delivery, resuscitation or immediately after her birth, Dr. [J. Peter] VanDorsten, Dr. [Daniel] Lefton, Dr. [M. Elizabeth] Latimer and Dr. [Marcus C.] Hermansen have all opined that was injured around the time of her birth.
In a lengthy opinion, the commission reviewed in detail the medical evidence and found that the more persuasive opinions were rendered by those physicians who opined that the damage to the infant's brain was caused at birth. The Program contends that the commission's reasoning is flawed and that the award should be reversed.
II.
The Virginia Birth-Related Neurological Injury Compensation Act provides compensation to families whose infants suffer "birth-related neurological injuries" caused by a participating physician or a participating hospital. Code §§ 38.2-5000 to 38.2-5021. A "birth-related neurological in
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Virginia Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|