$1.35 million awarded in birth defect settlement

CHARLOTTESVILLE — When the papers were signed yesterday ending a years-long court fight to help his son, David Morris couldn't hold back the tears any longer.

"All the time it's taken and the relief of it being over," he said after court.

Morris and his wife, Elizabeth, received a $1.35 million settlement yesterday in a case stemming from the September 2001 birth of their son.

Asphyxiated at birth, Hunter has cerebral palsy and brain damage. He will never live independently.

In court papers, the Morrises, of Waynesboro, alleged that doctors at the University of Virginia Medical Center failed to respond to their son's deteriorating condition in the hours before birth. The defendants denied the allegations.

The foundation employing the doctors argued that it and the doctors were immune from suit by any patients because of the charity care they provide to indigent patients.

Two months ago, the state Supreme Court tossed aside that charitable immunity defense.

The Morrises were not indigent and paid part of their medical costs.

Some 40 percent of the $1.35 million will go to the Morrises' lawyers. What is left will come nowhere near the estimated $9 million it will cost to care for Hunter the rest of his life.

At the time of Hunter's birth, the maximum award in a malpractice suit in Virginia for an injured person was $1.6 million.

State laws limiting the amount that parties can derive from medical malpractice suits will top off this summer at $2 million.

"We hope we can build a house that will be better suited to Hunter, with wider doors and room to move around in with his wheelchair," said Morris. "And we need a van that can transport him."

"This is the best that can be made of a bad situation," one of the Morrises' lawyers, Matthew B. Murray, told the court yesterday. "The cap [on malpractice awards] imposes a burden on the most severely injured," he said, noting that costs of care far exceed possible awards in Virginia.

In some states where the cap is not a factor, injured babies such as Hunter have received awards in the tens of millions of dollars.

The issue of charitable immunity alone set a precedent in Virginia regarding the nature of foundations linked to state hospitals that employ some 1,000 physicians across the state.

Combining three cases, the state Supreme Court ruled that the U.Va. Foundation "follows the model of a profitable commercial business, not a charitable institution." It found that charitable losses represented only 0.66 percent of the $225, 898,000 million in revenue generated in 2005 by foundation doctors.

As many as a dozen malpractice cases across the state are awaiting resolution in the wake of the Supreme Court's decision.

For now, Hunter will be better off because of the settlement. But he could live into middle age, his lawyers said.

Bill McKelway is a staff writer for the Richmond Times-Dispatch.