Family awarded $5M after son born impaired

Boston Herald, September 18, 2006

By Jessica Fargen
Boston Herald Health & Medical Reporter

BEDFORD, N.H. — Michelle and Kendall Turner know their son will never tell them he loves them, so they focus instead on the way his blue eyes light up when he sees his mom or how he laughs when his dad rubs his head.

“It’s very emotional,” said Michelle Turner, who sued her doctor and nurse at Melrose-Wakefield Hospital in Melrose after their son Dustin’s delivery left him utterly helpless and brain-damaged.“You look at your family and . . . you just picture yourself with two healthy, normal kids. ”

In what’s believed to be among the largest pretrial medical malpractice settlements in the state, the Turners found out last week they will receive $5 million to pay for Dustin’s long-term care.

The Turners hope that going public will save even one family from going through what they did.

“If you feel something is not going right, speak up. Don’t put all your faith in another human being. They make mistakes too,” Michelle Turner said.

The Turners say only now, looking back at that fateful delivery July 11, 2001, do they realize they shouldn’t have taken anything for granted. They believe they should have questioned Dr. Mitchell Zager and labor nurse Mary Doran during Dustin’s stress-filled two-hour delivery. According to the family’s attorney, Andrew C. Meyer of Lubin & Meyer in Boston, the nurse and doctor erred badly during that crucial period.

“I knew it first because I saw him come out. He was blue and just, like, lifeless in the doctor’s hands. He didn’t take his first breath for 32 minutes,” Kendall Turner said. “You think it’s a perfect world and everything’s going to be fine.”

Doran’s attorney, Martin Foster, declined to comment for this article. Zager’s attorney, Alan Rindler, said the case was settled with mediation and the cause of Dustin’s neurological damage was never precisely determined.

“There’s never a happy ending to a situation where an infant is impaired,” he said.

Dustin, who turned 5 this summer, has severe cerebral palsy his parents contend was caused by his stressful, oxygen-deprived delivery. He requires around-the-clock care. He can’t walk, talk, eat or sit up on his own. He can’t swallow, so saliva builds up in his throat, making breathing noisy and difficult and drooling common. A hired nurse sits with him each night while he sleeps.

Experts were ready to testify, if the case had gone to trial in January as planned, that had Dustin been delivered by emergency C-section once he started to show distress, he would likely be a healthy boy today, Michelle Turner says.

“Had the very simplest of steps been taken in recognition of the problems going on, Dustin would have been born 100 percent healthy,” Meyer said.

The Turners, who have a 7-year-old daughter, Nicole, delivered by Zager, said the money ensures that Dustin is taken care of and the family doesn&srquo;t fall into financial crisis.

“That money is not ours. It’s Dustin’s,” Michelle Turner said. “As much as it sounds like, this money would last until he’s 20. ”

It’s unclear how long Dustin will live, his parents said. Michelle Turner said that uncertainty kept her from getting close to her son at first.

“For the first six months, I realized I was distancing myself from him because I thought he’d be gone sooner rather than later,” she said. “Since then, I have given him every ounce of love I would give any child of mine.”

Lubin & Meyer attorneys represented the plaintiff in this NH birth injury lawsuit.

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