Dov Apfel.



Birth Injury Information
Dov Apfel.
Press Release
 

REPRINTED FROM THE STAR-GAZETTE AUGUST 16, 1999


Star-Gazette.Com.

Corning News Monday, August 16, 1999

$2 million settlement small consolation for Steuben family

By MARGARET COSTELLO

Dov Apfel.
HOWARD -- Stephanie Whitehead will soon have a new computer, a new home and a new way to get around.

But neither Stephanie, 8, nor her family is happy about needing any of those things. The home, the computer and a special van will be bought with part of a $2 million settlement reached in June with Ira Davenport Memorial Hospital and the obstretician who delivered Stephanie.

The money will ensure that Stephanie has what she needs to live as normal a life as possible after being found to have athetoid Cerebral Palsy, CP, a condition that severely and permanently limits Stephanie's use of her arms and legs. She is unable to speak.

"This is her money," said her father, Daryl. "We know from now on, she will be all right. She'll have the funds there to help her. That's a lot of stress off us."

But it's not money the Steuben County family wanted. What they really wanted was a healthy child.

Like most infants, Stephanie spent most of her first year eating, sleeping and growing into her big brown eyes, golden brown hair and broad smile.

Stephanie and Jessica Whitehead.But she was slow to crawl and speak and do things for herself, said her mother, Sue Ann. When her parents expressed concern, doctors told them Stephanie was normal.

Eventually the Whiteheads took Stephanie to a specialist in Elmira who diagnosed athetoid Cerebral Palsy, CP, most likely the result of insufficient oxygen to her brain during delivery.

The Whiteheads decided that day seven years ago to sue Ira Davenport Hospital and the doctor who delivered Stephanie. They were referred to an Elmira lawyer, James Reed, who works with Ziff, Weiermiller, Hayden & Mustico.

Lawyers for the hospital and doctor declined to comment. A hospital spokeswoman said the hospital would not comment on the case on the grounds that patient information is confidential. No one from the hospital admitted fault in the case.

The case dragged on for six years and over that time, the Whiteheads' bitterness toward the hospital was replaced by concern for Stephanie's future.

The Whiteheads have been endlessly devoted to caring for their handicapped daughter and finding ways to pay for the medical care and other things she needs.

But they'll never forget Oct. 10, 1990, when Sue Ann Whitehead, then 19, was taken to Ira Davenport Hospital, eight days overdue with her first child. The Whiteheads contend that doctors and nurses overlooked signs of fetal distress, such as fecal matter clogging Stephanie's lungs before birth. Expert witnesses concurred.

Stephanie will receive $1.629 million in a structured settlement over a period of years, with the rest going to attorney's fees. The Whiteheads are awaiting approval of the settlement by Steuben County Surrogate Judge Maryann Furfure.

The money awarded to Stephanie must last her a lifetime. It takes into account lost wages, expenses for assisted-living accommodations and special equipment, as well as her physical and emotional suffering, Reed said.

The settlement calls for, among other things, periodic replacement of certain equipment she needs to live as normal a life as possible. For example, the Whiteheads can buy a new handicapped-accessible van that costs about $39,000 every five years and a new wheelchair that runs about $11,000 every 10 years.

For the Whiteheads, the settlement money will bring relief. Stephanie's parents currently have to carry her down the stairs of their two-story house every morning and take her back up to bed every night.

They have to lift the 150-pound wheelchair over the bumpy seam of the door jamb that leads from the kitchen to the outdoor wooden ramp her father built.

To go shopping -- one of Stephanie's favorite activities -- her mom and dad must help her maneuver her wheelchair through the snow or gravel to the driveway, where they lift her into the family car and disassemble the two 52-pound batteries and wheelchair body.

"This money will take off the edges, so we'll be able to do more as a family," Sue Ann Whitehead said.

"There are a lot of things she can't do," Daryl said. "This will make her life better."

The family hopes to purchase a 13-acre plot in Howard and install a 2,200-square-foot, single-level modular home with extra-wide doorways and a handicapped-accessible bathroom. It would also have an attached garage so Stephanie won't have to struggle with her wheelchair during winter.

Despite the special challenges she faces, her parents said, Stephanie tries to be more like other children as she gets older. They have made adaptive bikes for Stephanie to try to ride with a special seat and pedals that can be fitted to her feet. Her father has also made a Plexiglas cover with 101 holes to fit over computer keyboard so Stephanie can hit the keys with more ease.

While her dad described the keyboard cover, Stephanie interrupted by striking a key on her Dynavox, a machine that helps Stephanie communicate. The key she struck was programmed to say "32."

Her father threw her a quick smile. He had just celebrated his 32nd birthday, and Stephanie burst into a smile after reminding him of his age -- a sensitive subject for the father of Stephanie and 4-year-old Jessica.

For her parents, one of the hardest parts of Stephanie's disability is knowing that their daughter's sharp mind is trapped in her body. They say they believe computers will allow her to express herself.

"Computers are going to be like her world," Sue Ann said. "She's already a whiz on them. She types different things -- not complete sentences yet, but she can communicate."

Stephanie does a lot of learning and reading on computers. Her test scores in reading were on par with others in second grade, her mom said. Math was a little trickier, but she continues to try. She attends summer school to work on academics and physical and occupational therapy.

"She's remarkable," said her one-on-one aide, Pam Moretti, who works for the Steuben-Allegany Board of Cooperative Educational Services. "She has to work twice as hard as everybody else. But she'll try and try and won't give up until she does it -- whatever it is."

Moretti, who has been working with Stephanie for four years, said the 8-year-old can lift her spirits even when she's in the worst of moods.

The settlement money will enable the Whiteheads to buy equipment such as the motorized wheelchair, Moretti said. "Just having the wheelchair makes a difference," Moretti said. "She can move around with the other kids and keep up with them in that capacity."

They could also purchase a laptop computer that Stephanie could carry to and from school, so she could also keep up with the students academically, Moretti said.

Her parents said they expect that Stephanie will get more familiar with computers and computer-assisted learning as she gets older. They hope she will someday be able to attend college and live independently.

"She won't give up," Daryl said. "She'll get her point across. We want her to be able to do anything she wants to do."



Dov Apfel is a principal in the law firm of Joseph, Greenwald & Laake, P.A. 6404 Ivy Lane, Suite 400, Greenbelt, Maryland 20770. He can be reached by phone at 301-220-2200, or by e-mail. Mr. Apfel is contacted by lawyers and families throughout the United States to assist them with potential medical malpractice claims involving children who have died, or who sustained irreversible brain damage. He is the former Co-Chair of the Birth Trauma Litigation Group of the Association of Trial Lawyers of America and a member of the Board of the Medical Negligence Section of the Maryland Trial Lawyers Association.


Please Note:
This web site is not intended as legal advice on cerebral palsy, and is not a substitute for obtaining guidance from your own legal counsel about cerebral palsy litigation. It provides general educational information about the standards of care and causation issues that can arise in obstetrical malpractice and cerebral palsy litigation. Readers of the articles contained within this web site should not act upon the cerebral palsy information without first consulting with a lawyer who is experienced in evaluating and litigating cerebral palsy and obstetrical malpractice cases. Mr. Apfel is admitted to practice law in Maryland and the District of Columbia. When Mr. Apfel is asked to participate in cerebral palsy litigation filed in other states, he will associate with, and act as co-counsel with, an attorney licensed in that state who is familiar with the local laws and procedures.
 
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