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Stricken child's case may set legal precedent

Unable to walk or talk, 8-year-old Aidan Leung may be headed to a precedent-setting case before the California Supreme Court that centers on a lawsuit in which his family won an estimated $96-million judgment against Verdugo Hills Hospital for negligence shortly after he was born.

[Correction appended. See below for details.]

An appellate court wiped out that verdict on March 23, reducing the hospital's liability to about $100,000. But in an unusual step, the justices asked the Supreme Court to reverse their ruling and "repudiate" a decades-old legal maxim, called the release rule.

The California Supreme Court agrees to take up only a handful of the thousands of cases it is asked to consider each year.

"Ordinarily it's a long shot," said Stuart Esner, one of Aidan's attorneys. "But given what the [appellate] court said about it, I think we have a pretty good shot."

The case stems from Aidan's birth at Verdugo Hills Hospital on March 24, 2003, a Wednesday. Nancy Leung, who worked in marketing at Nestle's North American headquarters on Brand Boulevard, gave birth to Aidan roughly three weeks early.

Mother and baby were declared healthy and sent home after a day. They then made an appointment to see Leung's pediatrician, Dr. Steven Wayne Nishibayashi, the following week.

But Aidan eschewed breast feeding and appeared sickly. Leung called the doctor when Aidan was three days old, and asked a nurse whether she should bring him in. In disputed court testimony, Leung said she was told to wait for the scheduled appointment.

By Sunday morning, Aidan would not wake for feedings. An on-call physician covering for Nishibayashi told the Leungs, who lived in Glendale, to immediately bring Aidan to Huntington Memorial Hospital.

By that time, Aidan had lost two pounds through dehydration and suffered irreversible brain damage because of an extreme condition, called kernicterus, which is related to jaundice. The illness struck the part of his brain controlling motor function. Today Aidan has dystonia. He has normal intelligence but cannot speak, has little motor control and experiences uncontrollable muscle spasms.

The Leungs sued Nishibayashi and Verdugo Hills Hospital, and in 2007 won a jury verdict granting them $78,000 for past medical costs and nearly $83 million for future bills. Because the future-care portion would be paid through an annuity and other factors, Esner said the value of the verdict is roughly $96 million.

But the family had already accepted a $1-million settlement offer from Nishibayashi, the maximum on his medical malpractice insurance policy. The judge reluctantly approved the deal, leaving Verdugo Hills Hospital with the burden of fulfilling the jury's judgment.

That's where the release rule comes into play. The rule holds that when one party responsible for an injury reaches a settlement to dramatically reduce his or her liability, other responsible parties cannot be made to pay the rest of the tab.

On appeal, Verdugo Hills Hospital argued it should be released from liability for medical damages. Last month, a three-judge appellate panel in Los Angeles agreed. However, in writing for the court, Justice Thomas Willhite Jr. said the release rule "can create unintended and inequitable results" and urged that it be abandoned.

Aidan's attorneys are appealing the case to the California Supreme Court. They expect to find out this summer whether the court agrees to take the case, lets the ruling stand or sends it back to the court of appeal with more questions.

Robert Olson, an attorney for the hospital, said Verdugo Hills continues to believe it is blameless in Aidan's misfortune.

"The hospital's job is to ensure that the patient calls the doctor to discuss a potential problem. The hospital did that in this case," he said.

As the legal wheels have slowly turned, Aidan has turned 8. He has a brother, Connor, who is 5. With the encouragement of special education teachers, he is attending public school in the Pacific Palisades, where his family now lives. He receives food and muscle relaxants through an intravenous tube.

Nancy Leung said that through her son's smile and other expressions, as well as a computer-based sensor system called a DynaVox, she and her husband can communicate with Aidan about school, his feelings, and whether he would like to listen to music on her iPod.

She said Aidan's grandparents help a lot in his upbringing. Caring for Aidan's healthy younger brother can be as much of a handful, Leung added.

As for the lawsuit, "I thought it would have been over by now," she said. "It was hard going through it initially, but now it is just going on in the background.

"I try to be a positive person and not look back at what could have happened. If I did that, I would just cry every day."

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For the record: An April 17 story titled "Case may set legal precedent" incorrectly reported court records showed Nancy Leung, the mother of a boy who suffered a disability after birth, called the hospital three days after her son was born. Court records state Ms. Leung called her pediatrician, not the hospital.   Also, the story mistakenly stated the jury awarded $78 million in past medical costs to the Leung family. The correct amount of the award of past costs was $78,000.  The total estimated value of the award in the case, as reported, is $96 million.  If the award is upheld, it would be paid using an annuity with a present-day value estimated at $15 million, according to the hospital's attorneys.

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