September 13, 2019

On July 11, 2019, the United States Court of Appeals for the Fourth Circuit (“Federal Appellate Court”) reversed a birth injury medical malpractice verdict in excess of $7 million rendered by a federal district court judge, holding that “After reviewing the whole record, we are firmly convinced the district court’s finding that Dr. Hardy breached the standard of care was a mistake. The district court’s finding as to breach was not supported by substantial evidence in the record and was thus clearly erroneous. Specifically, the district court’s finding on breach was not supported by Butts’s own expert testimony. Therefore, despite the sympathy we feel for A.F., the district court’s order finding Dr. Hardy liable for medical malpractice must be reversed.”

The Underlying Facts

A.F. was born with severe respiratory problems who developed permanent brain damage. Kayla Butts (“Butts”), A.F.’s mother, filed a medical malpractice action (tort claim) under the Federal Tort Claims Act alleging that A.F.’s brain damage was caused by the medical malpractice of Dr. Sarah Hardy. Butts contends that Dr. Hardy should have transferred A.F. from the hospital where A.F. was born to a hospital with a neonatal intensive care unit (“NICU”) that could have provided the care A.F. needed in the hours after her birth. After a bench trial, the district court agreed and awarded Butts over seven million dollars in damages. The United States appealed.

The Federal Appellate Court focused on the testimony of the plaintiff’s medical expert (Dr. Partridge), a physician who is board-certified in pediatrics and neonatal perinatal medicine, who opined that “Dr. Hardy was required to transfer A.F. to a higher level of care to receive enhanced respiratory intervention.” The Federal Appellate Court stated: “But that is what Dr. Hardy did. Dr. Hardy transferred A.F. to a board-certified neonatologist, Dr. Purohit, who assured Dr. Hardy that he had the equipment and ability to care for A.F. at Berkeley. Dr. Purohit had the ability to provide more aggressive respiratory intervention, including intubation. Intubation is the exact procedure that Dr. Miller said was required. And Dr. Partridge opined that once Dr. Hardy transferred care to Dr. Purohit, Dr. Purohit was not required to transfer A.F. to a NICU until 11:15 p.m. that evening. If Dr. Purohit was not required to transfer A.F. to a NICU until 11:15 p.m., it cannot have been malpractice for Dr. Hardy to transfer A.F. to Dr. Purohit to receive an elevated level of care at 1:45 p.m. earlier that afternoon.”

The Federal Appellate Court stated: “a physician is not required to provide a patient with “the highest degree of care possible” … Additionally, where there is more than one acceptable method of treatment, the physician need not choose the best method … Here, Dr. Partridge testified that Dr. Hardy could satisfy the standard of care by either transferring A.F. to a higher level of care within Berkeley Medical Center or to a NICU. The facts show, and Dr. Partridge acknowledges, that Dr. Hardy chose to transfer A.F. to a higher level of care within Berkeley by transferring care to Dr. Purohit. Based on Dr. Partridge’s own testimony this was an acceptable method of treatment for Dr. Hardy to pursue, whether or not it was the best method of treatment. Therefore, Dr. Partridge’s testimony fails to establish that Dr. Hardy breached the standard of care.”

The Federal Appellate Court held that “the district court erred in finding Dr. Hardy liable for malpractice.”

Butts v. United States Of America, No. 18-1693.

If you or your baby suffered a birth injury (or worse) during labor and/or delivery at a federal medical facility or involving a federal employee, you should promptly find a federal birth injury lawyer who may investigate your birth injury claim for you and represent you and your child in a federal birth injury medical malpractice case, if appropriate.

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