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Stricken child's case may set legal precedent

'If I looked back, I would just cry every day,' mom says.

April 15, 2011|By Bill Kisliuk,
  • Nancy Leung, 40 of Pacific Palisades, with her son Aidan Leung, 8, at their attorney's office in Century City on Tuesday, April 12, 2011. (Raul Roa/Staff Photographer)
Nancy Leung, 40 of Pacific Palisades, with her son Aidan…

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.

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