July 19, 2006
The federal government for the first time yesterday admitted it was liable for serious injuries suffered last year by a newborn baby when he was mistakenly given carbon dioxide instead of oxygen at Tripler Army Medical Center.
The admission means next month's trial, scheduled for Aug. 15, will focus solely on how much in damages should be awarded to the family of Izzy Peterson. The boy suffered severe brain damage after he was given carbon dioxide for more than 40 minutes immediately following his birth Jan. 14, 2005.
U.S. District Judge David Ezra yesterday issued an order in which both sides acknowledged that the government was solely liable for Izzy's injuries.
Izzy's parents, Shalay and Dwight Peterson, had filed a medical malpractice lawsuit a year ago seeking an unspecified amount in damages to care for their son the rest of his life. For as long as he lives, Izzy is expected to need around-the-clock nursing care, relying on medical devices to eat and breathe.
The family claimed the hospital was negligent in providing care to Izzy, who they said was healthy until the wrong gas was administered. A decision was made to give the infant oxygen to give his breathing a boost, but Izzy didn't need it because he was doing fine, according to the family's attorney, Rick Fried.
The government in court documents previously denied Izzy's care was negligent. A spokesman for the U.S. attorney's office, which represents the U.S. government in malpractice litigation, declined comment yesterday.
Fried said he was surprised the government took this long to admit liability, waiting until just a few weeks before trial.
"The government has never tried to defend what has happened to Izzy," Fried said.
Now that liability no longer is an issue, the trial will be shortened to possibly two or three days, Fried said, and the pretrial testimony of some Tripler medical personnel, including that of Dr. Danielle Bird, the physician who treated Izzy, no longer will be necessary. He said the family was pleased that liability no longer is in dispute.
Fried, who has handled many malpractice cases involving Tripler, said this was the first time the government has admitted liability in any of those cases.
Plaintiff attorneys have said the Peterson lawsuit has the potential to result in one of the most costly malpractice judgments at Tripler. The largest came in 1997 when a family of a baby who suffered brain damage because of negligent care was awarded $11.3 million at trial. With interest, the government eventually paid about $12.5 million.
Before the Peterson lawsuit was filed, the two sides tried settling the case, but Fried has said the government's offers were unsatisfactory given the circumstances of the case.
After Izzy was given the first whiffs of carbon dioxide, his health began to deteriorate, and it took Tripler personnel roughly 40 minutes before they realized the tubing was connected to the wrong gas tank, the family has said. At one point, Izzy's heart stopped, and he had to be revived.
The mix-up prompted the U.S. Department of Defense to issue a militarywide alert to its hospitals advising them to take immediate steps to prevent similar incidents.
Izzy's father, Dwight Peterson, is in the Army and was stationed in Hawai'i. He was transferred last year to Texas, where the family now lives.