Vaagelaw.com - Mrs. John Doe and Baby Doe v. USA

Disposition: (Settlement/Arbitration/Trial)	Trial
Date:	7/1/2005
Type of Case:	Medical Malpractice
Allegation(s):	Military M.D. refused requests for C-section and referral resulting in brachial plexus injury
Result:	$1,259,970 [settlement after trial/appeal]
Case Name:	Mrs. John Doe and Baby Doe v. USA
Facts:
Prior to her pregnancy with minor plaintiff BABY DOE, plaintiff Mrs. DOE had given birth to a daughter weighing nine pounds, seven ounces. A shoulder dystocia (anterior shoulder becomes impacted behind the pubic symphysis) was encountered. The delivering physician through the use of an appropriate maneuver was able to deliver the child without injury. Following the delivery, the DOES became aware that with future pregnancies, they should advise the treating OB-GYN that a shoulder dystocia had previously been encountered, and they should discuss their options with the physician at that time, including whether a Cesarian section should be considered. The DOES were aware this was particularly true if there was any reason to believe that a subsequent child would be larger at the time of delivery than their 9 pound, 7 ounce daughter. In the spring of 1997, MRS. DOE became pregnant. Mr. DOE was a Captain on active duty in the United States Marine Corps, stationed at MCRD. Because of previous problems with medical care at Balboa, and their concerns about the potential complications associated with her pregnancy, Captain and Mrs. DOE made an application to receive care for Mrs. DOE's pregnancy outside of the military system (NAS). That request was made to Dr. Manuel Rivera, the head of Obstetrics and Gynecology at Balboa Hospital at the time. He denied the request. Dr. Rivera advised the DOES that he had beds available and would handle the pregnancy himself as he was the "high-risk" OB-GYN at Balboa. Captain and Mrs. DOE have testified that on numerous occasions throughout the course of her pregnancy they advised Dr. Rivera about the prior shoulder dystocia and their concerns for the pending pregnancy. They made multiple requests for an elective Cesarian section because of the prior shoulder dystocia and their concerns about the size of the baby. Further, there was evidence that this child could be larger than the previous child. Dr. Rivera did not deny any of these discussions; his testimony was simply that he cannot "recall" these discussions. He refused plaintiffs' multiple requests for an elective Cesarian section, and refused to allow them to go to another physician. There was no dispute that when Mrs. DOE went into the hospital to deliver BABY DOE on January 5, 1998, there were multiple factors that placed her at an increased risk to encounter a shoulder dystocia at the time of birth. At the time of birth on January 5, 1998, when Dr. Rivera attempted to deliver BABY DOE vaginally, a shoulder dystocia situation was encountered. Plaintiffs alleged that Dr. Rivera applied excessive downward traction to Sam's head and neck to remove him from the birth canal. At no time during the process was there any evidence of fetal distress or any evidence of a developing fetal hypoxia. Shortly after delivery, BABY DOE demonstrated evidence of substantial traction being applied at birth. He had bruising on his head, left earlobe, left lateral portion of his back near his armpit and shoulder, and his left arm was completely limp. BABY DOE weighed nearly eleven pounds at birth. In the first few months following BABY DOE's birth, after an intensive search by the DOES to find the best care for BABY DOE's brachial plexus injury, they came upon two surgeons at Texas Children's Hospital with impeccable reputations. The government not only allowed them to have BABY DOE treated there, but also agreed to pay for it, finding it to be "in the Command's best interest." It was also brought to light during the course of discovery that Mrs. DOE was required to fill out a prenatal questionnaire, nine pages in length, when she first became pregnant and under the care of Dr. Rivera. On pages 5 and 6 of this questionnaire, information was requested concerning prior pregnancies, which Mrs. DOE would have filled out providing Rivera with information having to do with the prior pregnancy and the prior shoulder dystocia. Out of approximately 500+ pages of original medical records concerning MRS. DOE and BABU DOE, this page (front and back) was the only page that is "missing." Only government personnel had access to the original chart. No explanation for the missing pages was ever offered by the government.
Injury/Injuries:
Examination at Texas Children's revealed that the brachial plexus injury to BABY DOE involved all five levels of the brachial plexus including an avulsion at C7 (the nerve was literally torn away from the spine) and ruptures to C5 and C6. BABY DOE has undergone corrective surgeries at Texas Children's by Drs. Nath and Laurent. He will need additional surgeries and additional medical care throughout the course of the rest of his life. BABY DOE will be permanently disfigured (the left arm will be smaller than the right, and he will have a winged scapula), and his left arm will be limited in use to that of a "helper arm." Future surgeries will probably include a shoulder fixation, which would basically leave him with no movement in the shoulder whatsoever, or a shoulder replacement. Without some intervention with the shoulder, he will likely continue to have chronic dislocations throughout his life. It is also likely that BABY DOE will develop scoliosis and arthritic pain, and that he will have difficulty with dexterity, supination and pronation of his left hand. He is also more likely to develop arthritic changes associated with this injury. MRS. DOE also suffered an injury stemming from the delivery of this nearly eleven pound baby boy. She has bowel incontinence and a significant sphincter defect. This injury and the cause of it were not disputed by the defendant. She also has considerable emotional anguish over witnessing her son's injuries.
Contentions:
Plaintiffs alleged lack of informed consent, and medical negligence in Rivera's multiple violations of the standard of care and practice. Plaintiffs alleged that had Mrs. DOE been offered an elective Cesarian section, as the defendant admitted the standard of practice would have required, she would have accepted, and to a very high degree of medical probability, the injuries to both BABY DOE and MRS. DOE would not have occurred. Dr. Rivera had another opportunity to avoid causing these injuries as well. Plaintiffs alleged that had Dr. Rivera complied with the standard of care, recognized the potential large size of this child and undertaken the appropriate steps to deliver BABY DOE, to a degree of medical probability, again, these injuries would not have occurred. Defendant's expert, Dr. Ouzounian, testified that BABY DOE'S injury occurred as he traveled down the birth canal, as a result of the natural forces of labor and before the delivery actually occurred, and that Dr. Rivera complied with the standard of care.
Special Notes:
Following a bench trial, the Court found in favor of the plaintiffs, and instructed counsel to submit Proposed Findings of Fact and Conclusions of Law. Plaintiffs' Findings and Conclusions, prepared in accordance with the Court's decision, proposed a total award to Mrs. DOE of $272,480 (with an 80% insurance offset as to the applicable medical items), and as to BABY DOE (with an 80% insurance offset as to the applicable medical items and with tax effect as to future income loss) of $1,083,781. The case went up on appeal and settled after briefs were filed and oral argument.