Lawyers USA’s list of the Top 10 Jury Verdicts in 2011 includes two cases involving traumatic brain injury, with one of them regarding Botox.
The unusual Botox case resulted in a $212 million award against Allergan, which makes Botox, by a federal jury in Virginia last April. The sad part is that Virginia has a state cap on punitive damages, which could knock down the jury’s $200 million in punitive damages to just $350,000, according to Lawyers USA.
The Botox case involved Douglas Ray Jr., 67, who had developed hand tremors ever since his return from Vietnam. Ray’s doctor told him to get Botox treatments for his hand. After his third visit and injection, Ray first got a rash, then appeared to be confused and eventually sustained brain damage, according to Lawyers USA. Now he can’t walk, talk or feed or dress himself.
Ray’s lawsuit charged that Allergan failed to warn him about the risks of Botox. In Ray’s case, apparently the active ingredient in Botox – botulinum toxin type A, made from botulism – moved from his arm muscle to his bloodstream and traveled to his brain.
Botox doesn’t have Food and Drug Administration approval to be used to treat hand tremors, according to Lawyers USA. In fact, last year Allergan forked over $600 million in fines for marketing Botox for off-label uses.
The second case on Lawyers USA’s Top 10 List involving brain damage was a $144 million verdict for the birth of a baby who developed cerebral palsy. The lawsuit involved the botched birth of Kimberly VanSlembrouck’s daughter at William Beaumont Hospital in Michigan. It charged that her baby should have undergone a Caesarian, not a vaginal, birth.
According to Lawyers USA, VanSlembrouck had gained a lot of weight during her pregnancy, and her doctor should not have risked her doing a vaginal birth. Markell, the newborn girl, suffered serious injuries coming through the birth canal, including three brain hemorrhages, Lawyers USA reported. She was purple with bruises.
The hospital did testing on Markell after she was born, and found that she had abnormal brain development, which it later blamed on a genetic condition called pontocerebellar hypoplasia.
After being in intensive care for three weeks, doctors determined that Markell had cerebral palsy secondary to birth trauma, according to Lawyers USA.
The girl is a 15-year-old now, and can’t walk or talk. She needs 24/7 care and assistance doing everything from eating to dressing.
After a three-week trial, the Michigan jury granted the $144 million award. It looks like it didn’t buy the hospital’s gambit that Markell’s medical problems were genetic.
Attorney Gordon Johnson
Past Chair Traumatic Brain Injury Litigation Group, American Association of Justice
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