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Temple University Hospital, Inc. v. United States

United States District Court, E.D. Pennsylvania

April 14, 2017

TEMPLE UNIVERSITY HOSPITAL, INC.
v.
THE UNITED STATES OF AMERICA

          MEMORANDUM WITH FINDINGS of FACT and CONCLUSIONS of LAW

          KEARNEY, J.

         The 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 negligence case.

         Our 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 million.

         The 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.

         Evaluating 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.

         I. Findings of Fact

          1. On 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 Action”).[1]

         2. Patients, represented by experienced catastrophic injury trial counsel, initially demanded $100 million in settlement.[2]

         3. J.M. is diagnosed with global development delay, spasticity, seizure disorder, dysphagia, quadriplegic pattern cerebral palsy, microcephaly, and visual impairment.[3] J.M.'s neurological disabilities are permanent.[4]

         4. The 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 2009.[5]

         5. By 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 million.[6]

         6. 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.[7]

         7. 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.[8]

         8. The 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.[9]

         9. At the time of J.M.'s birth, Delaware Valley Community Health Center (“DVCHC”) employed Dr. Turner.[10] Neither Dr. Turner nor DVCHC provided care to S.M. or her infant J.M. before the August 3, 2009 birth.[11]

         10. The parties agree DVCHC is a federally funded health center covered under the Federal Tort Claims Act by the Secretary of Health and Human Services.[12]

         11. The parties also agree Dr. Turner is a deemed federal employee acting within the scope of his employment with the Public Health Service.[13]

         12. In August 2009, the Hospital employed all members of the Labor and Delivery Team providing medical care to S.M.[14]

         13. At 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.[15]

         14. The July 21, 2014 settlement of the Underlying Action extinguished any and all liability of Dr. Turner to Patients.[16]

         15. The 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 claim.[17]

         16. Hospital then sued the United States seeking contribution, contractual indemnity, and common law indemnity.[18] We dismissed the Hospital's contractual indemnity claim before trial.

         A. The Underlying Action: S.M. presents at Triage at Noon.

         17. On August 3, 2009, at 37 weeks gestation, S.M. met with her obstetrician, Dr. Stanley Santiago, reporting decreased fetal movement.[19]

         18. Dr. Santiago referred S.M. to the Hospital for evaluation in the Labor and Delivery Triage.[20]

         19. Dr. Santiago filled out a Consultation Request form addressed to Triage requesting an “NST” and “AFI” for “complaints of decreased fetal movement.”[21] “NST” means non-stress test and “AFI” means amniotic fluid index.[22]

         20. Electronic fetal monitoring is the equivalent of a non-stress test.[23]

         21. The 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 have broken.[24]

         22. An 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.[25] Fetal movement, fetal breathing, and fetal tone are all components of a biophysical profile, an assessment tool for fetal health.[26]

         23. S.M. registered with Triage at 12:08 p.m.[27]

         24. The Triage registrar completed the top part of the Labor and Delivery Physicians Triage Record (“Triage Record”) noting “CC: dec. [decreased] fetal movement.”[28]

         25. In 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.[29] Two attending physicians staffed the Labor and Delivery unit, with patients assigned to one of two “teams.”[30]

         26. Nurse Practitioner Sarah Daukaus, a Hospital employee or agent, completed the History of Present Illness (“HPI”) section of the Triage Record.[31] Ms. Daukaus noted S.M. “presents with decreased fetal movement. Denies leakage of fluid or vaginal bleeding.”[32]

         27. Registered nurses employed by, or agents of, the Hospital set up and monitored bedside fetal monitoring.[33]

         28. The Hospital began fetal heart rate monitoring at 12:19 p.m.[34]

         29. At 12:23 p.m., Nurse Omalabake Fadeyibi noted decreased fetal movement on the OB Nursing Triage form.[35]

         30. At 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 heart rate.[36]

         31. Nurse Practitioner Daukaus noted on the Triage Record fetal heart tones (“FHTs”) of “130-nonreassuring.”[37]

         32. In 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' well-being.[38]

         33. The 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 “bad.”[39]

         34. Dr. 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."[40]

         35. Dr. Turner admitted "non-reassuring" could include decelerations and late decelerations, and he expected the nursing staff to report decelerations but did not receive such information.[41]

         36. A 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.[42]

         37. 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 rate.[43]

         38. “Accelerations” are an increase of the heart rate with fetal movement. Acceleration with fetal movement is considered a reassuring finding.[44]

         39. Decreased fetal movement is an indication of impending problems, as fetuses experiencing hypoxemia - a decrease in oxygen - will stop moving in response to the condition.[45]

         40. 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.[46]

         41. On 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.[47]

         42. The 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.

         43. The 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.[48]

         44. Nurse Practitioner Daukaus did not note in the medical record Dr. Turner cancelled the amniotic fluid test.[49]

         45. Dr. Turner denies telling Nurse Practitioner Daukaus to cancel the amniotic fluid test.[50]

         46. 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 “non-reassuring.”[51]

         47. Nurse Practitioner Daukaus noted “reviewed with Dr. Turner” on the Labor and Delivery Triage Record.[52]

         48. Nurse Practitioner Daukaus completed a four-page Obstetrics History and Physical Examination (“Obstetrics H & P”) form at 12:55 p.m.[53]

         49. 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 section.[54]

         50. Nurse Practitioner Daukaus completed the Assessment and Plan of Care section of the Obstetrics H & P form.[55] 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.[56]

         51. At 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. Turner.[57]

         52. We find Nurse Practitioner Daukaus' testimony credible as to her communications with Dr. Turner.

         53. We 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.[58]

         54. Nurse Practitioner Daukaus did not have the authority to admit patients.[59]

         55. Dr. 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 medical record.[60]

         56. Dr. 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.[61]

         57. Dr. Turner testified in the absence of hearing otherwise, he “just go[es] right on by doing [his] daily activities.”[62]

         58. 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 thing.”[63]

         59. 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 section.[64]

         60. 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.[65]

         61. Dr. Turner delivered Patient #26-not J.M.-by operative vaginal birth at 1:04 P.M.[66] Dr. Turner estimated he went to the delivery room for Patient # 26 at approximately 12:45 or 12:50 p.m.[67] Dr. Turner estimated he stayed with Patient # 26 for another thirty to thirty-five minutes after the 1:04 p.m. delivery.[68]

         62. Dr. Turner decided to admit S.M.[69]

         63. The Hospital, at Dr. Turner's order, admitted S.M. to Labor and Delivery at 1:22 P.M.[70]

         64. We 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.

         B. Post-admission treatment also lacks communication and attention.

         65. 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 monitor.[71]

         66. The 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 record.[72]

         67. 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.[73]

         68. 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.[74]

         69. The 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. fluids.[75]

         70. The Hospital's nursing staff may initiate interventions without physician orders.[76]

         71. The 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.[77]

         72. If 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.[78]

         73. Upon admission to Labor and Delivery, Gul Shabon, R.N. became S.M.'s primary nurse.[79] Nurse Shabon restarted the fetal monitor at 1:24 p.m.[80]

         74. Nurse Shabon's responsibilities included monitoring fetal heart tracings, reporting abnormalities, and performing interventions where monitoring showed abnormalities.[81]

         75. Fetal heart rate monitors are visible on computer monitors posted throughout the Labor and Delivery Unit, including at nursing stations and physicians' break room.[82] In the first thirty minutes after admission to Labor and Delivery, Nurse Shabon found no improvement in the fetal heart tracings.[83] Nurse Shabon does not remember if she told the charge nurse about the fetal heart strips.[84]

         76. Nurse Shabon documented only one deceleration despite other decelerations on the strip.[85]

         77. At 2:10 p.m., Nurse Shabon noted in the medical record Dr. Erin Myers, a first-year resident, obtained consent forms from S.M.[86] Dr. Myers did not examine S.M. or review the fetal heart tracings.[87]

         78. 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.[88]

         79. S.M. waited for Dr. Turner's direction.[89]

         80. As of 1:30 p.m., at the conclusion of Patient # 26's case, Dr. Turner had not examined S.M.[90]

         81. Dr. Turner testified he had no reason to examine S.M. based on the information he received from nursing staff.[91]

         82. As 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.[92]

         83. Dr. 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.[93]

         84. Dr. Turner testified he expected the nurses to keep him updated.[94]

         85. For reasons never credibly explained, the professionals and Dr. Turner moved to an elective surgery while S.M. waited for care.[95]

         86. 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.[96]

         87. At 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.”[97] 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 performed.[98]

         88. Dr. Turner testified he estimates he “scrubbed in” for Patient 27's cesarean section around 2:00 p.m.[99] He delivered Patient # 27's baby at 2:34 p.m.[100] A third-year resident, Dr. Zandomeni, assisted Dr. Turner with the delivery of Patient # 27.[101]

         89. 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.[102]

         90. Dr. Turner testified he had no reason to do so because the staff had not reported anything to him.[103]

         91. We 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.

         92. Dr. 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.[104]

         93. 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.

         oxygen.[105]

         94. 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.[106] We have no understanding why the Hospital's nursing staff did not notify Dr. Turner of S.M.'s condition.

         95. Dr. 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 strips.[107]

         96. Dr. 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.[108]

         97. At 2:50 p.m., the medical record shows Dr. Espaillat performed a biophysical profile by ultrasound on S.M.[109] As a second-year resident, Dr. Espaillat had the authority to perform a biophysical profile without first getting permission from an attending physician.[110]

         98. A 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.[111]

         99. 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 zero.[112]

         100. Dr. Espaillat became concerned about possible acidosis and the lack of oxygen, both of which are detrimental to the health of a fetus.[113]

         101. As a second-year resident, Dr. Espaillat did not have the authority to decide whether S.M. should be delivered.[114]

         102. At 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.[115]

         103. 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.[116]

         104. 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.[117] 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.[118] We find Dr. Turner's lack of attention renders his credibility lacking. Dr. Espaillat recalled a direction to start Pitocin to begin the delivery process.

         105. Although his concern level rose after speaking to Dr. Espaillat, Dr. Turner did not tell Dr. Espaillat to locate another attending physician.[119] 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 other attending.”[120]

         106. At 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.[121]

         107. 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 3:10 p.m.

         108. 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 close.[122]

         109. Dr. Turner estimated Patient # 27's cesarean section ended at 3:30 p.m.[123] Dr.

         Turner 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 # 27.[124]

         C. Dr. Turner attends to S.M. almost three hours after knowing of her decelerations and decreased fetal movement.

         110. Dr. Turner estimated he went to see S.M. for the first time at 3:40 p.m.[125] Dr. Turner reviewed the fetal heart monitor strips and upon review of the entire tracing, observed decreased variability and late decelerations.[126]

         111. These fetal strips were available to Dr. Turner on monitors on the Labor and Delivery unit all afternoon.[127]

         112. Dr. Turner's examination revealed S.M. was not in active labor, but he discovered meconium, a sign of distress in the baby.[128]

         113. The medical record shows S.M. in the operating room at 3:56 p.m. to begin administration of anesthesia.[129]

         114. At 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 section.[130]

         115. Dr. Turner delivered baby J.M. by “urgent” cesarean section at 4:31 p.m.[131]

         116. 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.

         117. 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 S.M.[132]

         118. Upon birth, J.M. suffered from multiple permanent neurological disabilities.[133]

         D. Patients' malpractice claim in Philadelphia Court of Common Pleas.

         119. 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.

         120. Patients sued the Hospital for negligence in the Philadelphia Court of Common Pleas on February 23, 2012.

         121. 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 million.[134]

         122. 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.[135]

         123. In 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 trial.[136]

         124. As 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 actions.[137]

         125. 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 neurologic outcome.[138]

         126. 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.[139] Dr. Turner does not deny asking a clerk to make a copy of S.M.'s medical record.[140]

         II. Evaluation of expert testimony on the three main defenses.

         127. 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.

         A. Dr. Turner's standard of care.

         Hospital experts Drs. Manning, McHarg and Elliott.

         128. The Hospital's first expert Dr. Frank Manning is board certified in obstetrics and gynecology and maternal fetal medicine.[141] According to the United States' expert, Dr. Manning invented the biophysical profile used by Dr. Espillat.[142]

         129. 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.[143]

         130. 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 her.[144]

         131. 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 12:55 p.m.[145]

         132. 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.[146]

         133. 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.[147]

         134. 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 pediatric neurology.[148]

         135. Dr. McHarg opined J.M.'s neurologic injuries were caused by low oxygen and low blood flow before birth, and the delay in ...


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