Federal Gov Hit With $34 Million Verdict In Brain Damage Birth Injury Case

By Y. Peter Kang Law360, Los Angeles (April 17, 2017, 10:17 PM EDT) — A Florida federal judge on Monday put the federal government on the hook for $33.8 million after ruling that a doctor at a federally funded health clinic failed to order a cesarean section delivery, leading to a newborn’s irreversible brain damage birth injury.

Following a four-day bench trial in March, U.S. District Judge Robert N. Scola Jr. found that Dr. Ata Atogho, an employee of the Jesse Trice Community Health Center, negligently performed a vaginal delivery of Marla Dixon’s and Earl Reese-Thornton Sr.’s son, Earl Jr., despite repeated requests that he perform a C-section. The judge also ruled that the Trice clinic was vicariously liable for the doctor’s negligence.

“After considering the credible testimony and evidence, and the applicable law, the court finds that Dr. Atogho breached the standard of care by not offering a C-section to Dixon and such breach caused the injuries to Earl Jr.,” the judge wrote in a 52-page ruling.

Earl Jr. was awarded approximately $21.8 million in past and future economic damages such as medical expenses, nursing care and rehabilitative treatment, and $7.6 million in past and future noneconomic damages such as pain and suffering. Dixon was awarded $3.3 million for past and future noneconomic damages, while Earl Sr. was awarded $1.1 million in past and future noneconomic damages.

Amid conflicting testimony as to whether Atogho actually offered Dixon the option of having a C-section, Judge Scola said that maternity nurse Yolande McCray credibly testified that Atogho never offered a C-section and responded to Dixon’s multiple requests for a C-section by directing her to “keep pushing.”

“McCray also would have noted the refusal in her notes and her neonate treatment report would have noted the mother’s refusal to have a C-section,” the judge said. “Dr. Atogho hand-wrote in the hospital chart, after the fact, ‘declined c/s,’ indicating that Dixon refused a C-section. When McCray saw this note, she asked Dr. Atogho why he wrote ‘declined c/s’ in Dixon’s chart, when Dixon never declined the C-section. Dr. Atogho responded that it was Dixon’s first baby and she didn’t need a C-section. McCray testified that the note Dr. Atogho added to the chart was ‘a lie.’”

In addition, the judge said his finding was supported by the fact that the doctor never filled out an “against medical advice” form in regard to Dixon’s purported C-section refusal, as required by the hospital where the delivery was performed, that he left Dixon’s bedside to deliver another baby and that he had an eight-minute phone call with his financial adviser while the fetus was in distress.

Judge Scola also noted that the amount of damages was reasonable given awards for similar cases in Florida and elsewhere, and said the state’s cap on noneconomic damages in injury cases did not apply because Florida courts have ruled that such caps are unconstitutional. The Florida Supreme Court heard arguments on the issue in June but have yet to issue a definitive ruling on medical malpractice caps.

An attorney for Dixon, Richard “Bo” Sharp of Mallard & Sharp PA, said the plaintiffs were very satisfied with the verdict.

“While the facts and the injury suffered by the little boy and his family are beyond tragic, we do find a solace in the fact that he will be taken care of for the rest of his life and we pray for advances in medicine that could help his condition,” he said.

A spokeswoman for the U.S. attorney’s office for the Southern District of Florida declined to comment.

The Dixon family is represented by brain damage birth injury attorneys Richard B. Sharp and Vidian Mallard of Mallard & Sharp PA and Lauri Waldman Ross of Ross & Girten.

The federal government is represented by Charles S. White of the U.S. Attorney’s Office in Miami and J. Steven Jarreau of the U.S. Department of Justice’s Civil Division.

The case is Marla Dixon et al. v. U.S. et al., case number 1:15-cv-23502, in the U.S. District Court for the Southern District of Florida.

–Editing by Jill Coffey.

Updated: This story has been updated to include a statement from an attorney for Dixon and the response from the U.S. attorney’s office.