The Chief Judge of the United States District Court for the Southern District of Illinois, in her written Memorandum And Opinion filed on August 22, 2019 in a medical malpractice case in which the plaintiff alleged that the OB/GYN who provided her with prenatal care and delivered her baby at a federal health care facility was negligent and his negligence caused injury to the baby, found in favor of the plaintiff and her son, and awarded total damages in the amount of $8,297,967.77. The baby weighed eleven pounds, six ounces and was 19.5 inches long when he was born.
The Chief Judge stated: “There is a plethora of evidence in the record that Dr. Cruz’s negligence caused Steven’s shoulder dystocia. Mrs. Zhao had multiple risk factors for a macrosomic birth, and Dr. Cruz failed to use the appropriate tools to estimate fetal weight. He also failed to describe the risks of shoulder dystocia and brachial plexus injury during the birth of a macrosomic baby when he offered a Cesarean section to Mrs. Zhao either before labor or during labor (assuming he did). And then Dr. Cruz vacuumed the head of a macrosomic baby out when vacuum extraction was contraindicated—contraindicated precisely because of the probability that the shoulders would be stuck after impacting the bony structures of the pelvis. Even were the Court to give Dr. Gherman’s opinion [one of the defendant’s experts] full credit, Dr. Cruz caused the shoulder dystocia and the brachial plexus injury. Dr. Gherman opined that “the shoulder dystocia itself,” the impact of the shoulders, was the cause of the brachial plexus injury. But the Court does not adopt Dr. Gherman’s opinions. The far more persuasive evidence demonstrates that, in addition to missing the undisguised probability of macrosomia, shoulder dystocia, and brachial plexus injury, Dr. Cruz exerted excess traction on Steven’s head. Steven’s nerve roots were stretched and avulsed, i.e., ripped out. The expert testimony of Dr. Cardwell convincingly establishes that the shoulder dystocia and resultant brachial plexus injury were foreseeable consequences of Dr. Cruz’s negligent acts and omissions. Steven’s injury could have been avoided if Dr. Cruz would have simply “measured twice” and “cut once.””
The Chief Judge awarded the plaintiff a total of $8,297,967.77 (Past Medical Expenses: $64,967.77; Future Medical Expenses (present value): $80,000.00; Future Lost Earnings (present value): $2,653,000.00; Disfigurement: $1,500,000.00; Loss of a Normal Life: $2,000,000.00; and, Pain, Suffering, Emotional Distress: $2,000,000.00).
With regard to her pain and suffering, emotional distress award, the Chief Judge stated: “Steven will be fully aware, probably hyper-aware, of what he cannot do because of his injury. Every time he is unable to join in a basketball game with his friends; every time he has to enlist the help of his left hand to reach up and brush his hair, or to eat, or to dress; every time he notices a stranger or new acquaintance do a double-take when they see his right arm, he will suffer some amount of emotional distress. No matter how adapted or otherwise-happy Steven is, for the rest of his life he will live with a right arm that is not normal. For the distress he has experienced and will experience every day of his life, Steven is entitled to damages in the amount of $2,000,000.”
YONG JUAN ZHAO, on behalf of her minor son, Steven Zhao v. UNITED STATES OF AMERICA, Case No. 17-454-NJR-GCS.
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