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SUPREME COURT UPHOLDS $2.5 MILLION AWARD

Oct 23, 1987

United Press International

Supreme Court upholds $2.5 million award

By BRUCE RITCHIE

MONTGOMERY, Ala. -- The Alabama Supreme Court Friday upheld a $2.5 million jury award in a medical malpractice lawsuit including lost future earnings for a girl who suffered brain damage after her premature birth.

In a 67-page ruling issued Friday, the court denied various appeals by the defendant, Dr. Herman Ensor, who challenged the trial court's decision to allow the jury to consider lost future earnings by Misty Wilson when setting the award.

''There was direct evidence of her disabilities and evidence that related those disabilities to her impaired earning capacity,'' Justice Samuel Beatty wrote in the 6-0 ruling. ''We cannot in this case conclude that the trial court erred in submitting that subject to the jury.''

Wilson was born at 1:25 a.m. on Dec. 30, 1979 at the University of Alabama in Birmingham hospital.

Her mother, Cathy Wilson, had gone to Cullman County Hospital about three hours earlier complaining that labor for her child's birth was imminent. She was taken by ambulance to Birmingham on Ensor's orders.

Misty Wilson suffered a massive brain hemmorage about two days after her birth. She now suffers from mental retardation and cerebral palsy affecting the left side of her body.

Medical testimony presented in the trial indicates the child's hemorrage was not diagnosed until about three days or more after the condition developed, the ruling states.

During the trial, attorneys for Misty Wilson presented evidence to show that lost earnings, daily living care, therapy and equipment would cost more than $2.4 million for the life of the child.

The figure includes income estimates by Dave Saurman, an economist at Auburn University. The income was based on Wilson's earnings as a hospital nurse, the same profession as her mother, said the child's attorney, Mike Worel.

Attorneys for Ensor argued that the estimates were based on speculation unsupported by facts because the child has no work history.

Worel said the jury award was not based on speculation, but he also said he is not aware of legal precedent that establishes future income for a person with no work history.

Worel said the money is needed to provide care for the child and help her make progress in mental development. ''Of any case I've ever been involved in it is clear this money was needed to bring Misty to the highest plateau she will reach,'' he said.

The attorney said Misty's parents are ''ecstatic'' about the ruling which he said ''prove the system works.''

''It's time for the system to work and it did in this situation,'' Worel said.

Ensor's attorney, Karen Bowdre, could not be reached for comment.

In another ruling issued Friday, the Supreme Court ruled Alabama Elk River Development Agency must pay overtime wages to an employee and does not fall under federal exemptions provided by the Fair Labor Standards Act.

The agency is involved in residential development under the Tennessee Valley Authority in Limestone County.

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