March 2, 2004 - Suit settled in death of N.Va. baby

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A couple whose child died after injuries at birth has settled a five-year court case prolonged by a doctor's contention that his practice was protected from suit.

Scott and Tara Mills filed a wrongful-death suit against Northern Virginia obstetrician Todd Berner and his practice in June 1999, about a year after their infant son Nelson died after 10 days of life. Nelson had been negligently battered and died from brain damage brought on by a forceps delivery.

A Fairfax County judge entered an order ending the case, which was settled out of court with the doctor's practice for $850,000. Tara Mills recovered for emotional distress as well as her son's wrongful death. This new settlement marks the second and third payments that the Mills family has recovered in Nelson's delivery. A separate suit filed by Nelson's mother for physical injuries she suffered under Berner's care settled earlier for almost $300,000.

The settlement ends a long stalemate over Berner's contention that his practice was protected from suit by a provision of the state's birth-injury act. The act blocks medical-malpractice suits against a doctor even in egregious cases of misconduct in return for lifetime medical care for the injured infant. The act was signed into law after Nelson was born; however it had a retroactive clause that Berner used to fall under the act. The state Supreme Court ruled last April that the retroactive clause was improper and that the suit could proceed, setting up the possibility for Berner to be liable.