Estate of Davis, a minor v. Toig, MD and Northwestern Memorial Hospital
The plaintiff parents sued for the wrongful death of their newborn son who had died from herpes viral encephalopathy which was contracted at birth. At birth, the defendant obstetrician and hospital nurses each failed to advise Stephen's pediatrician in the newborn nursery that his mother had a history of herpes infection, so that he could be examined and tested for signs and symptoms of herpes infection. In a newborn, the herpes virus can attack the central nervous system and destroy it, because the infant has no immunity to the virus during the first month of life. The drug Acyclovir, if given as a precaution, can halt the attack of the virus on the baby's nervous system. Stephen was stricken with the virus and lived in a vegetative state for twenty months before he died.
Although the defense claimed lack of evidence of an active herpes lesion in the mother during labor and delivery, the plaintiff's attorney Kurt Lloyd was able to show a 25% rate of asymptomatic viral shedding in mothers who had any history of the disease.
Estate of Davis v. Toig, M.D. and Northwestern Memorial Hospital