Herpes Encephalitis Brain Injury: $1 Million Medical Malpractice Settlement

2020 Medical Malpractice Case Report
By Attorney Robert M. Higgins

Birth Injury Lawsuit

Lawsuit claims obstetrician and nurses were negligent in failing to check and identify an active herpes lesion at the time of mother's admission for delivery

In 2013, the plaintiff was pregnant and received her prenatal care with the defendant obstetrician. Early in her pregnancy, the plaintiff notified the defendant obstetrician that she had a history of herpes and took the medication Valtrex to control her herpes outbreaks. It was well known that an expectant mother with an active herpes lesion should never deliver her baby vaginally. There was considerable risk to the baby of contracting the herpes virus and developing brain damage as a result.

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On 11/29/13, the plaintiff arrived at the hospital for induction of labor. Throughout the course of the day, the plaintiff was seen and examined by 3 defendant nurses. There was no evidence that any of these nurses ever examined the plaintiff vaginally to check for active herpes lesions. Later in the day of admission, the plaintiff was also seen by the defendant obstetrician. She made any entry noting the plaintiff’s history of herpes and indicated that she did a vaginal exam but she did not identify any herpes lesions.

In morning of 11/30, the minor plaintiff was delivered vaginally by the defendant obstetrician and was discharged home without issues.

At day of life 17, the minor plaintiff began having seizure-like activity. He was brought to the emergency department where he underwent a complete work-up to determine the cause of his problems. As a result of his mother’s history of herpes, there was immediate concern that the minor plaintiff may have herpes simplex virus. Testing was performed and confirmed that he had herpes encephalitis brain injury.

At the time of settlement, the minor plaintiff was 6 years old. He needed help with many of his daily activities and had increased tone in his legs.

The plaintiff was prepared to present expert medical testimony that the defendants were negligent in failing to check and identify an active herpes lesion at the time of admission for delivery. Further, had the lesion been identified, the child would have been born via cesarean section which would have prevented the transmission.

The defendants’ position was that the plaintiff was examined and there was no active lesion at the time of delivery. The defendant nurses were expected to testify that only doctors were allowed to examine patients in labor. It was the position of the defense experts that during a herpes outbreak while pregnant, there was some type of shedding of the virus which infected the child.

The case settled prior to trial for $1,000,000.

The plaintiffs were represented by medical malpractice attorneys Robert M. Higgins and Andrew C. Meyer Jr.

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