Behind the Northside Baby Case Settlement, March 13, 1991
By Ann Woolner, Fulton County Daily Report

Until a mediator stepped in, settlement seemed remote in a case involving a newborn's severely botched circumcision at Northside Hospital, plaintiffs' lawyers say.

Lawyers had been unable to reach a settlement during two years of on-and-off negotiations, so they decided to take their best evidence to a mediator in Florida, where one of the plaintiffs' counsel practices. About 20 people-lawyers and their clients-spent Valentine's Day presenting the case to the mediator Joan H Bickerstaff of Melbourne, Fla.

"We were far, far apart prior to mediation," says one of the plaintiffs' lawyers, John L Kennedy of Atlanta's Thomas, Kennedy, Sampson, Edwards & Patterson.

Within a month, the parties had struck a settlement in the 5-year-old case. The total package has a present day value of roughly $3.7 million, but will be stretched out throughout the boy's life. Based on a 65-year life span, the package would eventually pay $22.8 million to the child and his parents.

The settlement calls for a $1.1 million immediate payment to the child, plus an annuity that makes monthly payments that would reach $20.6 million by the time the boy turns 65. Under the terms of the settlement, $13.7 million is guaranteed to the boy or his estate over the next 30 years. Beyond that, he would receive $11,000 a month for as long as he lives, according to the settlement papers.

Also, his parents receive $1 million now, plus a structured settlement with a present day value of about $200,000.

Thomas G. Sampson says the plaintiffs' lawyers took the case on a contingency basis, but he would not disclose details of the arrangement.

In addition to the payments from this suit, the child and his family were given $1.2 million to settle their complaint against the physician, according to another of their lawyers, Willie E. Gary of Stuart, Fla.

The new settlement ends litigation that started in Fulton Superior court soon after hospital personnel used allegedly improper equipment to circumcise two newborns on Aug.22, 1985.

The electrocautery machine normally used to circumcise infants was out of thermocautery tips, so hospital personnel substituted an electrosurgical machine, which the plaintiffs allege is not appropriate for neonatal circumcisions. They claimed the use of the equipment without following proper procedure violated hospital policy, and that personnel were not properly trained in its use.

Both babies were severely burned. The other one, who sued and settled under the name "Baby Doe," was so damaged that a sex change operation was performed, according to one of the child's lawyers, Henry D. Green Jr. of Atlanta's Sullivan, Hall, Booth & Smith.

The parents of that infant, whose identity has not been revealed, settled in 1985 or 1986 for an undisclosed sum, says Green.

In the just-settled case, the child's penis was "substantially, substantially burned," but not as badly as the other infant, according to Sampson. Still, "He lost a significant portion of his penis as a result."

The youngster has undergone reconstructive surgery, and more procedures will be attempted as he gets older, Sampson says. However, "There's no guarantee in terms of how effective any of this surgery will be," he says.

The plaintiffs' Atlanta lawyers split the work with Gary of Gary, Williams & Parenti of Stuart, Fla., near West Palm Beach. The family hired Gary, a medical malpractice and personal injury lawyer, after reading about him in Ebony magazine, he says. Gary handied the damages issues while Thomas, Kennedy focused on liability, according to Sampson.

On the defense side were Sidney F. Wheeler and Joseph Watkins of Long, Weinberg, Ansley and Wheeler, who represented the hospital; and Frederick W. Ajax Jr. and John A. Howard of Fortson and White, who represented the manufacturer of the equipment, Valley Lab Inc. Under the terms of the settlement, the manufacturer pays nothing.

Watkins declined to discuss the case. Ajax confirmed that he had been involved in mediation and that his client was not contributing to any settlement.

Kennedy says the case took this long to resolve in part because the plaintiffs' team took it over after the plaintiffs' previous lawyer had reached a settlement with the physician.

"Prior to the time we got involved, the doctor settled," says Kennedy. This left an "empty chair" for the hospital to blame, says Kennedy. "The hospital felt like there was liability, but it was not on them. So we had to go the whole nine yards with discovery."

In addition, a pending motion for summary judgment by the manufacturer slowed the pace, according to Sampson.

But the breakthrough came when "all parties agreed to bring the matter to a settlement through the mediation process," says Sampson.

He says before mediation, "It was a consensus to settle the case, but we were still apart" on figures.

They agreed to do it in Florida, where mediation is more common. Besides, says Gary, "I wanted them all to come to me. You kind of feel like you have a better handle on things on your own turf," he says.

At the mediation session, the lawyers described the evidence to support their contentions, including some videotaped testimony.

The mediator then spoke privately with each of the parties' lawyers, trying to move them closer together. She never came up with a figure, according to Kennedy and Sampson, but merely acted as a catalyst to budge the parties off their set positions.

"The mediation process really provided the atmosphere for the settlement of the case," says Sampson.