Dr. Fagel obtained a settlement of $9 million on behalf of a child who now suffers severe brain injuries after experiencing hypoxic injuries from ventilator complications shortly after his birth. After being born prematurely, the infant plaintiff was admitted to the Neonatal Intensive care Unit and placed on a ventilator. He was weaned from the ventilator in a few days and was neurologically sound, but then developed an infection and had to be re-intubated and placed on a ventilator once again. A few weeks later, a nurse noticed a drop in the plaintiff's blood oxygen level and called a neonatologist to examine him. The defendant doctor diagnosed pneumothorax, which can be a complication of ventilator use on an infant, and immediately placed a chest tube into the left chest. The plaintiff's oxygen saturation remained low and heart rate continued to decrease, so medications were given and another tube was placed in the right chest. After neither of these measures resulted in improvement, another doctor inserted a nasogastric tube, which also failed to improve the patient's condition. Finally, after three attempts and after the plaintiff had been in arrest for 37 minutes, an ET tube was successfully placed and the patient's condition improved. However, the plaintiff remained comatose and was unable to be weaned from the ventilator. Later studies revealed severe hypoxic-ischemic damage to the brain. Due to prolonged oxygen deprivation to his brain, the plaintiff has severe brain injuries requiring constant ventilator use and LVN nursing care.

The defendants contended that they properly responded to the plaintiff's condition and provided treatment within the standard of care. They also argued that the plaintiff likely had neurologic problems before the incident due to his premature birth. However, Dr. Fagel proved that the plaintiff's injuries were not pre-existent and were a result of the doctors' negligent care. The defendants failed to recognize and treat the plaintiff's condition, which was an ET tube that slipped above the epiglottis, in a timely manner. By the time the defendants diagnosed and treated the problem, the plaintiff suffered irreversible brain injury. Had the defendants properly responded to the plaintiff's condition, all injuries could have been avoided.