United States District Court, E.D. Pennsylvania
TEMPLE UNIVERSITY HOSPITAL, INC.
THE UNITED STATES OF AMERICA
MEMORANDUM WITH FINDINGS of FACT and CONCLUSIONS of
Federal Torts Claims Act requires we, like a jury, resolve
fact disputes and evaluate witness credibility when a
hospital sues the United States seeking indemnity or
contribution towards a multi-million dollar state court
settlement based on alleged medical negligence by a labor and
delivery doctor deemed to be a federal employee. Following a
bench trial, we evaluate the federal labor and delivery
doctor's alleged negligence for delivering a baby with
several birth injuries. We find, based on a preponderance of
the evidence, both the doctor and hospital nurses equally
share in the negligence creating an increased risk of harm
during hours of inaction, requiring the United States
contribute $4, 000, 000 to the $8, 000, 000 settlement paid
by the hospital to the patients to resolve the state court
analysis begins with a treating obstetrician referring his
37-week pregnant patient to the Temple University Hospital
emergency room for immediate evaluation of decreased fetal
movement. Upon the expectant mother arriving midday, the
hospital's nursing staff and its labor and delivery
doctor noted several non-reassuring factors related to the
decreased fetal movements but the doctor failed to
immediately attend to them. After three hours of
communication breakdowns between the professionals and after
the labor and delivery doctor began and finished a vaginal
delivery and an elective caesarian delivery on other
patients, the labor and delivery doctor turned his attention
to perform a now urgent cesarean upon the mother and shortly
thereafter delivered the baby with decreased fetal movements
born with several birth injuries. The patients sued the
hospital in Philadelphia County state court. After two years
of fact and expert discovery leading up to a jury trial with
the hospital anticipating liability exceeding $50 million,
the hospital settled with the mother and child for $8
hospital strategically decided not to add the treating labor
and delivery doctor as a deemed federal employee in the
Philadelphia County jury trial, but after settling for $8
million, now sues the United States alleging the labor and
delivery doctor is the only responsible party and the United
States must reimburse it for some or all of its settlement
payment, plus attorney's fees and interest, under
contribution and common law indemnity theories.
the credibility of fact and expert witnesses, we now issue
post-trial findings under Federal Rule of Civil Procedure
52(a)(1) in support of our accompanying Order entering
judgment in favor of the hospital and against the United
States for $4, 000, 000. We find the United States'
deemed federal employee equally liable for breaching a
standard of care of a labor and delivery doctor and causing
the birth injuries. We order the United States reimburse 50%
of the reasonable $8 million settlement of a substantial
birth injury case awaiting a jury in the Philadelphia Court
of Common Pleas. We have no basis for directing the payment
of attorney's fees, pre-judgment interest or costs as
part of our finding the United States partially responsible
on a contribution claim.
Findings of Fact
February 23, 2012, minor J.M., by and through his parent
(collectively “Patients”), sued Temple University
Hospital, Inc. (“Hospital”) in the Philadelphia
County Court of Common Pleas for negligence arising from the
obstetrical, labor, and delivery medical care provided to
J.M. and his mother S.M. in connection with J.M.'s birth
at the Hospital on August 3, 2009 (the “Underlying
Patients, represented by experienced catastrophic injury
trial counsel, initially demanded $100 million in
is diagnosed with global development delay, spasticity,
seizure disorder, dysphagia, quadriplegic pattern cerebral
palsy, microcephaly, and visual impairment. J.M.'s
neurological disabilities are permanent.
Hospital estimated J.M.'s expected future medical costs
at $140, 000 annually. Patients' life care expert
estimated J.M.'s expected future medical costs at $275,
000 annually, and assumed J.M.'s life expectancy to age
76.8, the normal life expectancy for a male born in
2014, the Hospital's economic experts estimated the
present value of J.M.'s life care plan, designed by
Patients' life care expert, to be between $8.6 and $18
Considering J.M.'s potential life expectancy, J.M.'s
predicted future medical costs, the potential economic and
non-economic damages such as lost earnings and hedonic
damages and inflation, the Hospital's experienced defense
counsel in the Underlying Action advised it could face a
verdict of $50 million or more.
After the close of discovery, with a trial ready date and
after deliberations with its Board, the Hospital settled the
Underlying Action for $8 million.
Hospital, having elected to not sue the treating physician in
the same suit, then turned to sue the treating labor and
delivery doctor Dr. Clinton Turner, a deemed employee of the
United States. Dr. Clinton Turner served as the
Hospital's attending obstetrician on the day of
J.M.'s birth, rendering medical care and treatment to
S.M. and J.M.
the time of J.M.'s birth, Delaware Valley Community
Health Center (“DVCHC”) employed Dr.
Turner. Neither Dr. Turner nor DVCHC provided
care to S.M. or her infant J.M. before the August 3, 2009
parties agree DVCHC is a federally funded health center
covered under the Federal Tort Claims Act by the Secretary of
Health and Human Services.
parties also agree Dr. Turner is a deemed federal employee
acting within the scope of his employment with the Public
August 2009, the Hospital employed all members of the Labor
and Delivery Team providing medical care to
all times relevant to S.M.'s and J.M.'s treatment,
Dr. Turner was the Hospital's ostensible agent who held
Dr. Turner out as its employee.
July 21, 2014 settlement of the Underlying Action
extinguished any and all liability of Dr. Turner to
Hospital timely submitted a Notice of Claim of the Underlying
Action under the Tort Claims Act to the United States on
August 17, 2015. The United States denied the
Hospital then sued the United States seeking contribution,
contractual indemnity, and common law
indemnity. We dismissed the Hospital's
contractual indemnity claim before trial.
The Underlying Action: S.M. presents at Triage at
August 3, 2009, at 37 weeks gestation, S.M. met with her
obstetrician, Dr. Stanley Santiago, reporting decreased fetal
Santiago referred S.M. to the Hospital for evaluation in the
Labor and Delivery Triage.
Santiago filled out a Consultation Request form addressed to
Triage requesting an “NST” and “AFI”
for “complaints of decreased fetal
movement.” “NST” means non-stress test
and “AFI” means amniotic fluid
Electronic fetal monitoring is the equivalent of a non-stress
amniotic fluid test provides clinicians with information
about the fluid status around the fetus. A normal amount of
amniotic fluid indicates a degree of fetal health; an
abnormal amount of amniotic fluid suggests a possible problem
with the health of the fetus or the mother's water may
amniotic fluid test is performed by ultrasound and, in
addition to gathering information regarding the status of
amniotic fluid, also tells the clinician the status of the
mother's uterus, the baby's movement, the tone of the
baby, and breathing movements of the baby. Fetal
movement, fetal breathing, and fetal tone are all components
of a biophysical profile, an assessment tool for fetal
S.M. registered with Triage at 12:08 p.m.
Triage registrar completed the top part of the Labor and
Delivery Physicians Triage Record (“Triage
Record”) noting “CC: dec. [decreased] fetal
August 2009, the Hospital staffed its Triage with two
registered nurses, a first year medical resident, and a nurse
practitioner, considered a mid-level clinician. Two attending
physicians staffed the Labor and Delivery unit, with patients
assigned to one of two “teams.”
Nurse Practitioner Sarah Daukaus, a Hospital employee or
agent, completed the History of Present Illness
(“HPI”) section of the Triage
Record. Ms. Daukaus noted S.M. “presents
with decreased fetal movement. Denies leakage of fluid or
Registered nurses employed by, or agents of, the Hospital set
up and monitored bedside fetal monitoring.
Hospital began fetal heart rate monitoring at 12:19
12:23 p.m., Nurse Omalabake Fadeyibi noted decreased fetal
movement on the OB Nursing Triage form.
12:30 p.m., Nurse Fadeyibi noted a baseline fetal heart rate
of 135 beats per minute (“BPM”), irregular
contractions, no accelerations or decelerations of the fetal
heart rate, and absent long term variability in the fetal
Nurse Practitioner Daukaus noted on the Triage Record fetal
heart tones (“FHTs”) of
August 2009, the term “non-reassuring” meant the
heart rate pattern raises a concern the fetus may be in
distress; in other words, the heart rate does not
“reassure” the clinician of the fetus'
term “non-reassuring, ” no longer used to
describe fetal heart rates, is considered an imprecise term
used to describe a wide variety of fetal heart tracings. The
term “non-reassuring” does not necessarily mean
an ominous tracing and does not necessarily mean a tracing
needing immediate delivery; it could mean either of these
situations, but it could also mean a tracing requiring
further evaluation. It is generally not considered
“good, ” but does not necessarily indicate
Turner testified although the term "non-reassuring"
is broad, he understood S.M. as "having some problems
with her heart tones, " but he didn't "know
exactly what they are."
Turner admitted "non-reassuring" could include
decelerations and late decelerations, and he expected the
nursing staff to report decelerations but did not receive
fetal heart rate tracing looks at the base line heart rate
and the variability in the heart rate. An absence of long
term variability in the heart rate is generally considered an
unfavorable sign of fetal well-being.
While a fetal heart monitor records the heart rate of the
fetus, it is also recording the mother's uterine
contractions and the effect of the contractions on the fetal
heart rate. A “deceleration” is a fall in the
fetal heart rate. “Late” decelerations are an
unfavorable sign and indicate a drop in fetal oxygen with a
contraction and a resulting drop in fetal heart
“Accelerations” are an increase of the heart rate
with fetal movement. Acceleration with fetal movement is
considered a reassuring finding.
Decreased fetal movement is an indication of impending
problems, as fetuses experiencing hypoxemia - a decrease in
oxygen - will stop moving in response to the
Nurse Practitioner Daukaus testified she considered the fetal
heart “non-reassuring” because she found no
accelerations in the fetal heart rate; found decelerations in
the fetal heart rate; and found minimal variability of the
fetal heart rate. However, she did not make a note of these
specific findings in the medical record.
the assessment and plan (“A/P”) section of the
Triage Record, Nurse Practitioner Daukaus noted the
non-stress test and amniotic fluid index as
“cancelled” despite Dr. Santiago's request
for these tests.
Hospital performed the equivalent of a non-stress test on
S.M. while in Triage, as requested by Dr. Santiago, when it
placed S.M. on the fetal monitor.
Hospital did not perform an amniotic fluid index test in
Triage. Nurse Practitioner Daukaus did not perform the
amniotic fluid test in Triage because of Dr. Turner's
later decision to admit S.M., and she assumed the test would
be performed by in Labor and Delivery.
Nurse Practitioner Daukaus did not note in the medical record
Dr. Turner cancelled the amniotic fluid test.
Turner denies telling Nurse Practitioner Daukaus to cancel
the amniotic fluid test.
Nurse Practitioner Daukaus communicated with Dr. Turner about
S.M.'s decreased fetal movement and placement on the
fetal monitor and her assessment the strip looked
Nurse Practitioner Daukaus noted “reviewed with Dr.
Turner” on the Labor and Delivery Triage
Nurse Practitioner Daukaus completed a four-page Obstetrics
History and Physical Examination (“Obstetrics H &
P”) form at 12:55 p.m.
Nurse Practitioner Daukaus started the Obstetrics H & P
form while S.M. was still in Triage noting: “decreased
fetal” under History Presenting Illness; “NST FHR
non-reassuring” under the Physical Examination
Nurse Practitioner Daukaus completed the Assessment and Plan
of Care section of the Obstetrics H & P
form. The assessment noted “reduced
fetal movement” and a “non-reassuring
strip” and the plan included admission in anticipation
of delivery, electronic fetal monitoring, and administration
of intravenous (“IV”) fluids.
some point between 12:19 and 12:55, Nurse Practitioner
Daukaus checked a box on the Obstetrics H & P form
indicating she notified the attending physician, Dr.
find Nurse Practitioner Daukaus' testimony credible as to
her communications with Dr. Turner.
find Dr. Turner spoke to Nurse Practitioner Daukaus no later
than 12:55 p.m. about S.M.'s complaint of decreased fetal
movement and assessment of non-reassuring fetal monitoring
strips and, based on his conversation with Nurse Practitioner
Daukaus, Dr. Turner decided to admit S.M. into the
Hospital's Labor and Delivery unit.
Nurse Practitioner Daukaus did not have the authority to
Turner does not recall the conversation he had with Nurse
Practitioner Daukaus or whether the conversation occurred by
phone or through a nurse. Dr. Turner assumes a conversation
occurred based on Nurse Practitioner Daukaus' note in the
Turner admitted if he does not hear from either the nursing
staff or residents, he assumes either “everything is
okay” or the evaluations are not yet completed and the
staff has not gotten back to him.
Turner testified in the absence of hearing otherwise, he
“just go[es] right on by doing [his] daily
When asked why he did not call for a cesarean section when
told about S.M.'s fetal heart tracings and decreased
fetal movement, Dr. Turner testified a non-reassuring fetal
heart tracing does not “tell [him] a lot” and,
had he been told of repetitive late decelerations and no
variability, “that's a different
Even if he knew S.M. had experienced recurrent late
decelerations, he would still employ interventions to try to
resolve the situation before performing a cesarean
When Dr. Turner learned of S.M.'s non-reassuring fetal
heart tracing at the time of admission, he did not ask anyone
for the basis of the non-reassuring assessment because he
expected the residents to evaluate S.M. and give him updates
on her status and assumed other staff members would keep him
up to date.
Turner delivered Patient #26-not J.M.-by operative vaginal
birth at 1:04 P.M. Dr. Turner estimated he went to the
delivery room for Patient # 26 at approximately 12:45 or
12:50 p.m. Dr. Turner estimated he stayed with
Patient # 26 for another thirty to thirty-five minutes after
the 1:04 p.m. delivery.
Turner decided to admit S.M.
Hospital, at Dr. Turner's order, admitted S.M. to Labor
and Delivery at 1:22 P.M.
find Dr. Turner's explanations for his lack of personal
attention to S.M. upon her presentation during her
seventy-plus minutes at the Hospital are not entirely
credible. Having evaluated the expert testimony, Dr.
Turner's standard of care must include attention to
patients presenting with exceptional concerns expressed by
the referring obstetrician and the professional staff. We do
not find the standard of care allows a doctor to transfer his
entire responsibility, described by the United States'
expert as “captain of the ship”, entirely to
nurses and residents. We find it much more likely he did not
view S.M.'s non-reassuring decelerations as requiring his
expertise absent someone telling him to evaluate S.M.
Post-admission treatment also lacks communication and
Once Dr. Turner admits a patient to Labor and Delivery, the
Hospital's Labor and Delivery nurses and professionals
place the patient on a fetal monitor and the nursing staff is
responsible for monitoring and regularly assessing the fetal
Hospital's nursing staff is expected to check the fetal
monitoring strips every 30 minutes and every 10 minutes when
a patient is close to delivery. The Hospital expects nurses
to document fetal heart monitoring results every 30 minutes
and to report a problem to a physician or a resident if a
problem is identified. Reporting to a physician may an oral
report, but an oral report must be noted in the
standard of care in documenting fetal monitoring strips
requires an assessment and documentation to accurately
reflect the tracing in the medical record, and such
documentation should be made every 30 minutes. The standard
of care requires documentation every 15 minutes where there
is a non-reassuring strip.
Nurses are expected to document the fetal heart rate, the
character of the fetal heart rate, whether there are
accelerations or decelerations, the variability, and the
patient's response to interventions.
Hospital's policy on managing non-reassuring fetal heart
rate tracing provides a nurse “may initiate specific
treatment” in response to a non-reassuring fetal heart
tracing. The treatment is referred to as nursing
“interventions” and includes repositioning the
patient, oxygen by facemask, and increasing I.V.
Hospital's nursing staff may initiate interventions
without physician orders.
Hospital's policy requires documentation of: the type of
deceleration; interventions administered and the response or
lack of response in the fetal heart tracing; physician
notification and his/her response; and any planned treatment
for the patient.
a nurse finds a non-reassuring strip, and interventions have
not improved the situation, nurses are expected to notify a
physician and continue using the interventions.
Upon admission to Labor and Delivery, Gul Shabon, R.N. became
S.M.'s primary nurse. Nurse Shabon restarted the
fetal monitor at 1:24 p.m.
Nurse Shabon's responsibilities included monitoring fetal
heart tracings, reporting abnormalities, and performing
interventions where monitoring showed
Fetal heart rate monitors are visible on computer monitors
posted throughout the Labor and Delivery Unit, including at
nursing stations and physicians' break
room. In the first thirty minutes after
admission to Labor and Delivery, Nurse Shabon found no
improvement in the fetal heart tracings. Nurse Shabon
does not remember if she told the charge nurse about the
fetal heart strips.
Nurse Shabon documented only one deceleration despite other
decelerations on the strip.
2:10 p.m., Nurse Shabon noted in the medical record Dr. Erin
Myers, a first-year resident, obtained consent forms from
S.M. Dr. Myers did not examine S.M. or review
the fetal heart tracings.
Nurse Shabon does not remember whether she notified a
physician of S.M.'s status, but recalls two residents,
Dr. Myers and Dr. Espaillat, came into S.M.'s room. Nurse
Shabon does not remember what she said to Dr. Meyers or Dr.
Espaillat. Nurse Shabon did not note in the medical record
any abnormal fetal heart tracings.
S.M. waited for Dr. Turner's direction.
of 1:30 p.m., at the conclusion of Patient # 26's case,
Dr. Turner had not examined S.M.
Turner testified he had no reason to examine S.M. based on
the information he received from nursing staff.
of 1:35, Dr. Turner knew of S.M.'s admission, a history
of some period of time of decreased fetal movement, and a
non-reassuring fetal heart tracing.
Turner testified he expected the nursing staff in Labor and
Delivery to take interventions such as administering I.V.
fluids, providing oxygen, and changing the position of the
patient to improve fetal heart rate.
Turner testified he expected the nurses to keep him
reasons never credibly explained, the professionals and Dr.
Turner moved to an elective surgery while S.M. waited for
After leaving the delivery of Patient # 26, and without
visiting or assessing S.M., Dr. Turner chose to begin with
Patient # 27, an elective cesarean section.
1:35 p.m., Dr. Turner went into the operating room on the
Labor and Delivery unit to deliver Patient # 27, signing a
“time out protocol.” As the name suggests, a
“time out protocol” requires the physician to
take a “time out” before the procedure to verify
the patient and proper procedure to be
Turner testified he estimates he “scrubbed in”
for Patient 27's cesarean section around 2:00
p.m. He delivered Patient # 27's baby at
2:34 p.m. A third-year resident, Dr. Zandomeni,
assisted Dr. Turner with the delivery of Patient #
Between the 1:35 p.m. time-out for Patient # 27 and before
“scrubbing in” around 2:00 p.m., and before Dr.
Espaillat performed the biophysical profile on S.M., Dr.
Turner testified he could have gone to S.M.'s room,
located close by the operating room, and could have pulled up
S.M.'s fetal heart monitoring to review.
Turner testified he had no reason to do so because the staff
had not reported anything to him.
find Dr. Turner's “no reason” mantra to lack
credibility given the facts told to Dr. Turner upon
admission. Dr. Turner's attempt to shift all the blame to
the Hospital's nursing staff and other professionals
belies his central role. He is the treating physician and not
just there to react to stimuli from others who point him in a
certain direction. He must take responsibility and prioritize
patients. The Hospital shares in this obligation but the
treating physician must fulfill his standard of care.
Turner believed the “overwhelming majority” of
non-reassuring fetal heart tracings correct themselves with
intervention and, having no information from the residents or
nursing staff, assumed S.M.'s status improved or
evaluations were not yet complete.
There is no documentation in the medical record of physician
notification after 12:55 p.m., and there is no documented
evidence of repositioning S.M. or administering S.M.
With respect to physician notification, there is nothing in
the medical record from 12:55 p.m. to 2:50 p.m. of any
notification to a physician. We have no understanding
why the Hospital's nursing staff did not notify Dr.
Turner of S.M.'s condition.
Luis Espaillat, a second-year resident in obstetrics and
gynecology, arrived on the Hospital's Labor and Delivery
unit in the early afternoon and began reviewing fetal monitor
Espaillat reviewed S.M.'s fetal monitor strips on the
computer monitor located in the residents' lounge. After
reviewing S.M.'s fetal monitor strip, Dr. Espaillat went
to S.M.'s room to examine her because he
“didn't like her tracing” and thought
“it was a little too flat, ” explaining he did
not see “a lot of variability” in the tracing of
the fetal heart rate.
2:50 p.m., the medical record shows Dr. Espaillat performed a
biophysical profile by ultrasound on S.M. As a
second-year resident, Dr. Espaillat had the authority to
perform a biophysical profile without first getting
permission from an attending physician.
biophysical profile examines five different components: fetal
movement; fetal breathing; amniotic fluid index; gross
movements; and the non-stress test which is the fetal heart
tracing strip. Each component is given a score of zero if
abnormal, or a score of 2 if normal. The scores for each
component are added up on a scale of 8 or 10; 10 if the
non-stress test (fetal heart tracing) is a component, 8 if
the non-stress test is not a component.
S.M.'s biophysical profile resulted in a score of 2. Dr.
Espaillat found only the amniotic fluid test normal, for a
score of 2; all other components received a
Dr. Espaillat became concerned about possible acidosis and
the lack of oxygen, both of which are detrimental to the
health of a fetus.
a second-year resident, Dr. Espaillat did not have the
authority to decide whether S.M. should be
some point between 2:50 p.m., when he began the biophysical
profile, and 3:10 p.m., when he entered a note on the medical
record, Dr. Espaillat reported his findings from the
biophysical profile to Dr. Turner who, at that time, was in
the delivery room with Patient # 27.
Dr. Turner admitted the score of 2 on S.M.'s biophysical
profile concerned him and is an abnormal finding, but he
still wanted additional information including talking to S.M.
and examining her to gather more details and to review the
monitor strips himself.
Dr. Turner told Dr. Espaillat to start Pitocin to prepare
S.M. for delivery and he, Dr. Turner, would examine the
patient when he finished with Patient #27. Dr.
Turner first testified he remembered discussing only the
biophysical profile results with Dr. Espaillat, but then
testified he did not tell Dr. Espaillat to start
Pitocin. We find Dr. Turner's lack of
attention renders his credibility lacking. Dr. Espaillat
recalled a direction to start Pitocin to begin the delivery
Although his concern level rose after speaking to Dr.
Espaillat, Dr. Turner did not tell Dr. Espaillat to locate
another attending physician. Dr. Turner testified he did
not need to tell Dr. Espaillat to contact the other attending
physician because “that's a decision he can
make” and, if Dr. Espaillat felt S.M. needed immediate
intervention, he could have gone to the other attending
physician on the unit as “residents routinely go to the
3:10 p.m., Dr. Espaillat entered a note on the medical record
recording the results of the biophysical profile, notice to
Dr. Turner, the plan to start Pitocin for the induction of
labor ordered by Dr. Turner, and the readjustment of the
fetal heart monitor.
There is nothing in the medical record evidencing
communication to Dr. Turner regarding S.M.'s condition
between the time Nurse Practitioner Daukaus spoke with Dr.
Turner by 12:55 p.m. and the time Dr. Espaillat reported his
findings to Dr. Turner sometime after 2:50 p.m. and before
Dr. Turner remained with Patient # 27 to close the incision,
and did not ask Dr. Zandomeni to close because, as a
third-year resident, he felt she needed help to
Dr. Turner estimated Patient # 27's cesarean section
ended at 3:30 p.m. Dr.
testified S.M.'s biophysical profile concerned him, but
he did not consider it a “dire emergency” and he
felt he could wait until he finished with Patient #
Dr. Turner attends to S.M. almost three hours after knowing
of her decelerations and decreased fetal movement.
Dr. Turner estimated he went to see S.M. for the first time
at 3:40 p.m. Dr. Turner reviewed the fetal heart
monitor strips and upon review of the entire tracing,
observed decreased variability and late
These fetal strips were available to Dr. Turner on monitors
on the Labor and Delivery unit all afternoon.
Dr. Turner's examination revealed S.M. was not in active
labor, but he discovered meconium, a sign of distress in the
The medical record shows S.M. in the operating room at 3:56
p.m. to begin administration of anesthesia.
4:00 p.m., Dr. Turner entered a note on the medical record of
S.M.'s admission for decreased fetal movement and
non-reassuring fetal heart rate and for delivery by cesarean
Dr. Turner delivered baby J.M. by “urgent”
cesarean section at 4:31 p.m.
Dr. Turner never explained why this 4:31 p.m. cesarean
section needed to be “urgent, ” at least as
described by the Hospital staff in the admittance register.
Dr. Turner did not request assistance or ask any other
physician or healthcare professional at the Hospital to find
another physician to evaluate, examine, or deliver
Upon birth, J.M. suffered from multiple permanent
Patients' malpractice claim in Philadelphia Court of
The Patients wanted to know whether medical negligence caused
any or all of J.M. permanent disabilities. They retained
Thomas J. Duffy, Esquire, a trial lawyer with experience in
birth injury cases in the Philadelphia Court of Common Pleas.
Patients sued the Hospital for negligence in the Philadelphia
Court of Common Pleas on February 23, 2012.
The Hospital also retained experienced defense counsel. Its
outside defense counsel recommended a settlement in this
case, estimating a possible verdict exposure in the
Philadelphia County Court of Common Pleas as high as $50
Hospital decided not to sue Dr. Turner in the same case
brought by the Patients. The Hospital did not join Dr. Turner
in the Underlying Action, triggering removal to federal
court, for a number of reasons: the difficulty in managing a
bench trial for Dr. Turner as a deemed federal employee
versus a jury trial on the claims against the Hospital; and,
based on its experience involving the United States defending
deemed federal employees, the Hospital's concern it would
be in a “two front” battle, defending against the
Patients' claims and the United States' anticipated
cross-claim including joining other Hospital personnel not
named in the Underlying Action.
the two year history of the Underlying Action, the Hospital
assessed the case and identified difficulties in defending
the case including the care received by S.M. before delivery;
causation, including a concern regarding continued hypoxic
injury to J.M.; the nature of J.M.'s injuries and
resulting costs of care; the value of lost life pleasure to
J.M.; and, concerns regarding the Hospital's experts at
to the development of its causation defense, the
Hospital's experts could not rule out ongoing hypoxia
contributing to J.M.'s injury from the time of S.M.'s
presentation to until delivery. It also faced difficult
questions regarding the adequacy of another expert, Dr.
Phelan, challenged in other medical malpractice
Another of the Hospital's experts in the Underlying
Action opined the results of the biophysical profile showed
J.M. came to the Hospital with evidence of prior neurologic
injury; the results of the biophysical profile required
delivery, but not an urgent cesarean section, characterizing
the status of fetus as a stable situation indicative of a
neurologically injury child; Dr. Turner's actions were
within the standard of care; J.M. did not deteriorate from
the time S.M. arrived at the Hospital to the time of
delivery; and there is no evidence on the fetal monitor strip
delivery earlier than 4:31 p.m. would have had any different
The Hospital had an additional concern about Dr.
Espaillat's 3:10 p.m. progress note missing from the
original medical record. After J.M.'s delivery and before
the medical record left the Labor and Delivery unit, Dr.
Turner made copies of certain portions of the chart,
including Dr. Espaillat's progress note. For reasons
unclear on the record before us, the Hospital never located
the original of Dr. Espaillat's progress note, and only
received a copy of it when Dr. Turner's attorney in the
Underlying Action produced it in discovery. Dr.
Turner does not deny asking a clerk to make a copy of
S.M.'s medical record.
Evaluation of expert testimony on the three main
The United States raised three main substantial defenses
during our non-jury trial: Dr. Turner did not deviate from a
standard of care; Dr. Turner did not cause the damage either
because the birth injuries existed before Dr. Turner's
involvement or the Hospital's nurses caused the damages
and not him; and, the Hospital overpaid to resolve the state
court case given J.M.'s potential life expectancy.
Dr. Turner's standard of care.
experts Drs. Manning, McHarg and Elliott.
The Hospital's first expert Dr. Frank Manning is board
certified in obstetrics and gynecology and maternal fetal
medicine. According to the United States'
expert, Dr. Manning invented the biophysical profile used by
Dr. Manning opined S.M.'s presentation with a history of
decreased fetal movement and findings of decreased fetal
movement and abnormal fetal tracing on admission created an
obstetric emergency requiring intervention by Dr. Turner as
the attending physician.
Dr. Manning opined Dr. Turner had an obligation to see S.M.
and determine her immediate management including the degree
of fetal compromise, whether delivery should occur, and how
the baby should be delivered, and, if Dr. Turner could not
see S.M. at that time, to arrange for another doctor to see
Dr. Manning opined the information on which Dr. Turner had an
obligation to act became available to Dr. Turner shortly
after S.M. arrived at the Hospital when Nurse Practitioner
Daukaus assessed S.M. and spoke to Dr. Turner no later than
Dr. Manning opined Dr. Turner's failure to assess S.M.
and make decisions regarding her management at 12:55 p.m. is
a breach of the standard of care.
Dr. Manning disagreed with the United States' expert, Dr.
Christian Pettker, on the standard of care. Dr. Manning
disagreed Nurse Practitioner Daukaus failed to give Dr.
Turner information. Dr. Manning opined Dr. Turner failed to
act on the information.
The Hospital also relied upon Dr. Malcolm McHarg's
expertise. He is board certified by the American Academy of
Psychiatry and Neurology and qualified as an expert in
Dr. McHarg opined J.M.'s neurologic injuries were caused
by low oxygen and low blood flow before birth, and the delay