In its decision dated June 29, 2020, the United States Court of Appeals for the Seventh Circuit (“Federal Appellate Court”) affirmed a federal district court’s medical malpractice birth injury award in the total amount of $8.3 million, including $2.6 million in lost earnings and $5.5 million in noneconomic damages ($64,967.77 for past medical expenses, $80,000 for future medical expenses, $2,653,000 in lost earnings, $1,500,000 for the permanent disfigurement of the child’s right arm, $2,000,000 for the deprivation of a normal life, and $2,000,000 for pain, suffering, and emotional distress). The now five-year-old child suffered severe and permanent impairment of the function of his right arm as a result of medical malpractice during delivery.
On appeal, the United States did not contest liability or damages awarded for past and future medical expenses but only the district court’s calculation of the child’s future lost earnings as being improperly speculative, given the uncertainties inherent in projecting a five‐year‐old’s career opportunities. The United States also challenged the award of noneconomic damages as arbitrary and excessive in comparison to similar cases.
The Federal Appellate Court held: “The question may have been difficult to answer, but we find no reversible error. The district court took a reasonable approach to estimate the lost earnings award based on data provided in expert testimony … The district court could have provided a more detailed explanation of its comparative process, but we can follow the court’s reasoning and find no reversible error in this portion of the judgment. We affirm the judgment of the district court.”
The Underlying Facts
The child was the plaintiffs’ fourth son. The three prior deliveries were uncomplicated, but the second son was macrosomic (above the average weight range), weighing eleven pounds, twelve ounces at birth. During the plaintiff’s labor with her second son, the plaintiff had to give birth in an unusual position, with several doctors and nurses performing elaborate maneuvers to deliver the baby safely.
Macrosomia is particularly dangerous because it greatly increases the risk of shoulder dystocia, in which the baby’s head has been delivered but the shoulders are stuck in the birth canal. Shoulder dystocia is considered a medical emergency during delivery. It can lead to severe nerve damage and even cut off the oxygen supply to the baby’s brain. The risk of shoulder dystocia increases as the macrosomic baby’s weight increases. which makes it critical for an obstetrician to screen for the condition and to manage it skillfully.
The doctor who delivered the plaintiffs’ fourth son had not been involved in the prenatal care or delivery of their first three children, but the doctor was aware of the fourth child’s high birth weight and of the plaintiff’s desire for a Cesarean section. The doctor did not request or review any of the plaintiff’s medical records from other providers or facilities (macrosomia tends to recur and women who have had prior difficult labors due to macrosomia are more likely to have complications in subsequent deliveries).
The Federal Appellate Court stated that the doctor “knew that [the plaintiff] was at high risk for macrosomia and a complicated delivery, and the evidence convinced the court that he bungled the management of her pregnancy and delivery.” As a result of the vacuum extraction, the baby’s head was delivered but his shoulders became stuck. The doctor and the nursing staff performed a variety of maneuvers to attempt to deliver the baby but none of them worked. The doctor may have used too much traction in his attempts to deliver the baby’s shoulders, contributing to the boy’s injury. Ultimately, another obstetrician was able to deliver the baby after nine minutes of dystocia.
The baby’s neurologist confirmed shortly after birth that he had suffered a brachial plexus injury. In such injuries, the nerves to the shoulder, arm, and hand are mechanically injured at the point where they exit the spinal cord. In this baby’s case, the nerves of his right arm had been completely torn away from his spinal cord and had also been stretched and scarred. Several surgeries have restored a degree of function, but the child’s physicians expect those improvements to plateau in the near future.
Experts testified at trial that the child’s injuries are permanent and will require further surgeries and ongoing occupational and physical therapy for the rest of his life. He will be unable to use his right arm and hand to engage normally in most of the activities of daily living, including scratching his head, twisting doorknobs, and typing, and all activities requiring the coordination of both hands will be difficult for him. His right arm will always be visibly smaller, shorter, and weaker than his left, and these discrepancies will only grow as he grows. The child is already aware of his disability, and there is evidence that he experiences significant emotional distress in addition to his physical limitations.
Federal Appellate Court Opinion
The Federal Appellate Court held: “The district court’s finding that [the child’s] injury would persist throughout his life, a question of fact, was well supported by extensive expert medical testimony. And the district court relied on reasonable figures to estimate the impact of that permanent injury on his earnings. The government has not offered, and we cannot think of, a more reliable and precise way to estimate the future earnings of a five‐year‐old. And on this record, with substantial expert testimony addressing the problem, the alternative would itself have been an abuse of discretion—finding that [the child’s] injury is permanent and would reduce his earning capacity, but then refusing to award any damages whatsoever because the district court could not predict the future with greater certainty.”
With regard to the district court’s award of noneconomic damages, the Federal Appellate Court stated: “To our astonishment, the government argued before the district court that [the child] was not disfigured, would not need further medical care, and suffered no pain or emotional distress from his injury. The government even argued that [the child] would not experience the loss of a normal life because his injury occurred at birth so that he would know no alternative. On our review of the record, the government’s argument is unrealistic and entirely unsupported, further increasing our confidence that the district court did not err. The record shows that even at his young age, [the child] already understands to some degree what his life might have been like if he had not been injured.”
The Federal Appellate Court noted: “The district court also considered a number of other reported cases with brachial plexus injuries, with verdicts ranging from $1.28 million to $61 million. (The district court reasonably declined to view the latter case as truly comparable because that plaintiff also suffered permanent cognitive impairment as a result of the dystocia.) Many of the cases with lower total awards did not provide enough information about the nature of the injury and its effects for the district court here to draw much guidance from the other courts’ conclusions. We do not view a $5.5 million noneconomic damages award as obviously out of line with the numerous comparators the district court considered. Nor has the government put forth other cases that are more relevant comparators.”
The Federal Appellate Court held: “In this case, it is clear that [the child] will suffer lifelong effects from this serious and entirely avoidable injury. The award here may have been toward the upper bounds of a reasonable award, but our job on appeal is not to decide the amount we would award if we had presided over the trial. The district court reached a reasonable decision given the unavoidable difficulty of deciding at one moment in time an amount to provide fair compensation over a lifetime for a now‐five‐year‐old boy’s permanent and life‐altering birth injury. The government’s arguments that he should receive no compensation beyond medical expenses were disappointing and not persuasive.”
Source Zhao v. United States of America, No. 19‐3071.
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