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A woman undergoes labor in a water-birth suite at Legacy Good Samaritan Medical Center in Portland in February 2014. That's the same month the hospital announced it had started up a water births program. (Emily Jan/The Oregonian/File photo)

(Emily Jan/The Oregonian/File photo)

The parents of a newborn boy who was deprived of oxygen for 15 minutes after a botched water birth attempt have settled their lawsuit against Legacy Emanuel Medical Center for $13 million.

The settlement is the largest in at least a decade for a hospital birth malpractice case, according to court papers filed by Rich Rogers, the Portland attorney who represented the family.

Now 4, Luca Marino can't walk or talk, but he's able to scoot around in a cart with wheels.

The boy has been diagnosed with birth-induced cerebral palsy, according to the family's lawsuit, which sought $36 million in Multnomah County Circuit Court.

It's difficult to tell how much the boy understands, Rogers said.

"He makes cooing sounds," the lawyer said. "He smiles brightly. He loves attention. If you walk into the room and you say 'Hey, Luca!' He smiles."

Rogers declined to talk about the terms of the settlement, citing a confidentiality agreement, but court records say the lawsuit was dismissed in March because of the settlement. The Oregonian/OregonLive reviewed conservatorship files revealing the amount.

The North Portland hospital declined comment. The boy's parents, Amy Benton and Matthew Marino, don't wish to talk to media, Rogers said.

Benton had gone to the hospital in December 2011, planning to give birth underwater, according to the lawsuit.

"They told (her) she was an ideal candidate for water birth," Rogers said in an interview. "And they actually told her that it's just as safe and even more safe."

But Benton wasn't a good candidate because her pregnancy wasn't considered low risk and Luca's fetal heart rate was abnormal after Benton was admitted to Legacy Emanuel, Rogers said.

Because Benton was in a tub of water, midwives didn't continuously monitor the baby's fetal heart rate, he said. If they had, they would have realized sooner that there was a problem with his heart rate and the birth needed to happen immediately, he said.

Benton eventually was taken out of the tub and Luca was delivered vaginally, but the damage was done: Luca's brain had long been deprived of oxygen and blood, Rogers said. The lawsuit faults Legacy for failing to perform an immediate C-section.

"The baby they pulled out appeared for all intents and purposes, dead," Rogers said.

The lawsuit points to serious concerns about water births from the American Academy of Pediatrics as early as 2004. A 2014 joint statement from the academy and the American College of Obstetricians and Gynecologists says water births can be risky.

Because of "case reports of rare but serious adverse effects in the newborn," water birth should be considered an experimental procedure performed only in clinical trials after the expectant mother is fully informed of the risks, the statement said.

In response, the American College of Nurse Midwives and the American Association of Birth Centers issued statements saying water births aren't dangerous and can offer a safe, evidence-based alternative to traditional birth.

The lawsuit claims that Luca's parents were told that midwives would consult obstetricians during the water birth, but that didn't happen.

Water births are offered at all of Legacy's five Portland-area hospitals with birthing centers, according to Legacy's website. Oregon Health & Science University and private birthing centers also offer water births.

Rogers was paid $4.33 million in attorneys fees for his work, according to court papers. After that and experts, court costs and medical bills were paid, Luca received about $6.8 million of the original $13 million settlement.

Another $1.5 million has gone into buying annuities for the boy. He will start receiving periodic payments at age 18. Over his lifetime, the payments are expected to amount to another $13 million.

-- Aimee Green

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