On April 17, 2017, a United States District Judge with the United States District Court for the Southern District of Florida awarded the plaintiffs a total of $33,813,495.91 against the United States for the severe and permanent birth injuries suffered by their child during his birth on December 2, 2013, finding that “[the delivering doctor] breached the standard of care by not offering a C-section to the plaintiff and such breach caused the injuries to [her newborn son].”
The plaintiffs (the parents of the child) had filed their medical malpractice case under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 2671, et seq., and under Florida law, alleging that doctors at a federally supported health center committed medical malpractice during the delivery of their son, Earl Jr. The plaintiffs’ Amended Complaint alleged that on December 2, 2013, Plaintiff Marla Dixon (“plaintiff”) went into labor and was admitted to North Shore Medical Center (“North Shore”). Dr. Ata Atogho, an employee of the Jesse Trice Community Health Center (“Jessie Trice”), was the delivering doctor. The plaintiff’s pregnancy had not been diagnosed as high risk; however, during labor the baby’s heart rate decelerated.
The United States alleged that Dr. Atogho advised the plaintiff to undergo a caesarean section (“C-section”) but she refused. The plaintiffs, on the other hand, alleged that the plaintiff requested a C-section several times, and that Dr. Atogho refused, telling her to “keep pushing.” The plaintiff ultimately delivered her newborn son, Earl Jr., vaginally after Dr. Atogho used a “Kiwi” vacuum three times during the delivery. The vaginal delivery caused Earl Jr. to have irreversible brain damage.
The Judge’s Findings
The federal judge thoroughly set forth in his 52-page written verdict the extensive testimony and evidence provided during the nonjury trial (under the FTCA, a judge, not a jury, hears and determines the case). The judge specifically found that on December 2, 2013, at approximately 1:00 a.m., the plaintiff went into labor. She presented at North Shore at approximately 2:00 a.m. Upon admission to North Shore, the plaintiff signed a consent form which acknowledged her general consent to treatment as well as her right to refuse any medical treatment. The consent form indicated that she was agreeing to a vaginal delivery as well as any other surgical procedures required in the course of delivery.
The plaintiff’s labor was uneventful until approximately 13:20 when fetal heart rate tracings showed deceleration of the baby’s heart rate. Pitocin, which had been started at 9:46, was turned off at 13:30 because of a non-reassuring heart rate. At about 13:33, the plaintiff was fully dilated (marking the end of Stage One, and the beginning of Stage Two Labor) with the baby descended to +1 station. Dr. Atogho was notified on his cell phone of the deceleration and the conditions indicating that the baby was ready to be delivered.
Dr. Atogho arrived at the plaintiff’s bedside for the first time at 13:49. Fetal monitoring indicated the baby had a non-reassuring heart rate indicative of hypoxia (oxygen deprivation). Dr. Atogho believed that the fetal monitoring indicated that Earl Jr. had a category 3 heart rate. Pitocin was restarted once Dr. Atogho arrived. Dr. Atogho continued infusing Pitocin into the plaintiff from 13:50 until 15:21, when Earl Jr. was delivered. The federal judge found that Pitocin was contraindicated because of the baby’s non-reassuring heart rate, and further impaired the flow of blood and oxygen to the baby. The judge further found that Dr. Atogho failed to use appropriate fetal resuscitation measures to correct the non-reassuring fetal heart rate.
From 13:49 through 15:21 Dr. Atogho believed that Earl Jr. was in imminent danger of hypoxic injury, brain damage, or death. Nonetheless, he continuously left the plaintiff’s room to treat another patient, and he delivered that other baby at 15:08, just minutes before Earl Jr. was born. During that same time, Dr. Atogho also made an eight-minute phone call to his financial advisor. Between 13:49 and 15:21, Dr. Atogho used a Kiwi vacuum device on three occasions. At 15:21, the plaintiff delivered Earl Jr. vaginally. When Earl Jr. was delivered, he was blue and not breathing. Shortly after birth, the Neonatal Intensive Care Unit (“NICU”) team was called and assumed care for the baby. Earl Jr. was transferred the following day to Nicklaus Children’s Hospital, where he was later diagnosed with hypoxic ischemic encephalopathy and brain damage from oxygen deprivation.
The federal judge specifically found that the plaintiff requested a C-section several times and Dr. Atogho never offered one, and that Dr. Atogho breached the standard of care by restarting the Pitocin, which was contraindicated and extremely dangerous, and that this was a gross deviation from good and acceptable practice. The judge also found that using multiple attempts with a Kiwi vacuum was a gross deviation from good and acceptable practice.
The judge determined that given Earl Jr.’s markedly abnormal heart rate and Dr. Atogho’s inappropriate use of Pitocin, a C-section should have been performed by 14:00 and it was below the standard of care for Dr. Atogho to have failed to offer a C-section to the plaintiff, concluding that the care Dr. Atogho provided to the plaintiff on December 2, 2013 fell below the standard of good and acceptable practice and directly caused significant neurologic injury to Earl Jr. (the vaginal delivery caused Earl Jr. to suffer from excessive blood/oxygen deprivation leading to hypoxic ischemic encephalopathy).
The federal judge stated that Earl Jr.’s medical diagnoses are: severe birth-related spastic seizure disorder, profound global developmental delay, spasticity, visual impairment, feeding problems with a history of dysphasia, severe gastric esophageal reflux disease, neuromuscular scoliosis, constipation, sleep apnea, and asthma. Earl Jr. has already undergone numerous operative procedures including a permanent tracheotomy and permanent gastrostomy tube placement. Earl Jr. is profoundly developmentally delayed: at almost two and one half years, he had not achieved the milestones one would expect of a four-month old. Earl Jr.’s scoliosis can cause functional impairment to breathing and heart function and often requires corrective surgery; he has profound disability and will require round-the-clock care from a variety of specialists, durable medical equipment suppliers, nutritionists, gastroenterologist, neurologists, orthopedic surgery, x-rays, MRI’s, CT’s and EEG’s, bracing to prevent deformity and many other services.
The judge determined that Earl Jr. has a life expectancy of an additional 27.5 years.
The Judge’s Award
The judge awarded past medical expenses in the amount of $823,349.91; loss of future earnings in the amount of $3,056,476 ($877,885 present money value); future medical expenses in the amount of $17,908,670 ($12,159,709 present money value), for total economic damages in the amount of $21,788,495.91 ($13,860,943.91 present money value).
With regard to non-economic damages, the federal judge awarded Earl Jr. past non-economic damages in the amount of $750,000, $300,000 to the mother, and $100,000 to the father, for total past non-economic damages in the amount of $1,150,000. The judge also awarded future non-economic damages to Earl Jr. in the amount of $6,875,000, $3,000,000 to the mother, and $1,000,000 to the father, for total future non-economic damages in the amount of $10,875,000. Therefore, the total non-economic damages awarded was $12,025,000.
Source Dixon v. United States of America, Civil Action No. 15-23502-Civ-Scola
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