The opinion of the court was delivered by: Joan H. Lefkow, District Judge
FINDINGS OF FACT AND CONCLUSIONS OF LAW AFTER TRIAL
This cases arises out of the tragic end to the pregnancy of plaintiff, Chondra Williams ("Chondra"). Chondra's baby was delivered stillborn at Mt. Sinai Hospital Medical Center ("Mt. Sinai Hospital") on September 14, 1997. Chondra alleges that her obstetrician, Dr. Leo Boler ("Dr. Boler"), negligently handled her pregnancy, which proximately caused the stillbirth. Dr. Boler acted as an employee of Sinai Family Health Centers ("Sinai Family") during his treatment of Chondra. The original action in this case was filed in the Circuit Court of Cook County, Illinois, against Dr. Boler, Mt. Sinai Hospital and Sinai Family. When it was discovered that Sinai Family was a private entity receiving grant money from the Public Health Service pursuant to 42 U.S.C. § 233 and that Dr. Boler was acting within the scope of his employment at Sinai Family as an "officer of the United States" at the time of the events giving rise to this lawsuit, the United States removed the action to this court under 28 U.S.C. § 1442 and substituted itself as the defendant party under 28 U.S.C. § 2679(d)(2).*fn1 Original jurisdiction of this case rests in the Federal Tort Claims Act, 28 U.S.C. § 2671 ("FTCA"). The case was tried to the court from April 28, 2003 through May 1, 2003. Based on the court's evaluation of the evidence, including the credibility of the witnesses and the weight of all the evidence, the court makes the following findings of fact and conclusions of law.
1. Chondra was born on January 10, 1962, and is currently 41 years old. She was 35 years old and pregnant during the relevant time period at issue.
2. Plaintiff Christopher Williams ("Christopher") was born on July 23, 1966, and is currently 36 years old. He was 31 years old at the time of the pregnancy at issue in this case.
3. Chondra and Christopher were married throughout the pregnancy and they remain so, although they are currently separated.
4. Chondra has two daughters who were born prior to this pregnancy; however, Christopher and Chondra do not have any children together.
5. The pregnancy at issue in this case would have been the first child, a son, that Chondra and Christopher would have had together.
6. Kimya Murray is Chondra's daughter. She was born on June 3, 1981, and is currently 22 years old.
7. Melvina Murray ("Melvina") is Chondra's daughter. She was born on July 20, 1982, and is currently 20 years old.
8. Kimya and Melvina Murray would have been the sisters of the baby had it lived.
9. Faye Murray is Chondra's mother.
10. Vanetta Brown is Chondra's aunt.
11. Everyone involved knew that Chondra's pregnancy was a "high risk" pregnancy because of Chondra's weight, age, renal insufficiency, and history of high blood pressure.
12. Chondra's renal insufficiency did not cause any adverse outcome on the pregnancy, did not affect the management of the pregnancy, and did not proximately cause any injury to the fetus.
13. Chondra's high blood pressure was being adequately controlled by medication during the pregnancy, and neither the high blood pressure nor the medication caused any adverse outcome on the pregnancy, did not affect the management of the pregnancy, and did not proximately cause any injury in this case.
14. Chondra was not diabetic during the pregnancy.
15. Dr. Boler was the attending obstetrician/gynecologist in charge of and ultimately responsible for Chondra's prenatal care and treatment and the decisions concerning management of the pregnancy throughout. For example, Dr. Boler decided which tests to order and the kind of medical care to provide Chondra, including whether her baby should be delivered at a gestational age prior to term.
16. Dr. Boler had the skills to manage the pregnancy, including managing the medical aspects of the mother as well as the fetus.
17. During Dr. Boler's medical treatment of Chondra, Dr. Boler was acting as an employee of Sinai Family.
18. Sinai Family was a private entity receiving grant money from the Public Health Service pursuant to 42 U.S.C. § 233, and Dr. Boler was acting within the scope of his employment at Sinai Family as an "officer of the United States" while he treated Chondra. He conducted his practice at Sinai Family at a clinic located at 3800 W. Madison Street, Chicago.
19. "Hypoxia/hypoxemia" means the amount of oxygen being carried to the fetus falls below a critical level.
20. "Anoxia/anoxemia" means there is no oxygen being carried to the fetus.
21. "Asphyxia" means the adaptive responses of the fetus actually fail because of severe hypoxemia.
22. A biophysical profile test is a specific and accurate method for the detection of developing fetal asphyxia, and can result in early, appropriate intervention and significantly reduced fetal death from asphyxia.
23. There are five components to the biophysical profile test: (1) fetal breathing movements, (2) fetal tone, (3) gross fetal body movement, (4) fetal heart rate, and (5) amniotic fluid volume.
24. The fetal heart rate component of the biophysical profile test is also referred to as the "non-stress" component.
25. The non-stress component can be "non-reactive" when there are no heart accelerations and when there is decreased beat-to-beat variability.
26. A biophysical profile test is scored by giving two points for each of the five components that are normal. Thus, the scores range from 10/10 (risk of fetal asphyxia extremely rare), 8/10 (with normal amniotic fluid measurement, risk of fetal asphyxia extremely rare), 6/10 (equivocal test, possible fetal asphyxia present), 4/10 (high probability of fetal asphyxia), 2/10 (fetal asphyxia almost certain), and 0/10 (fetal asphyxia certain).
27. Increasing degrees of hypoxemia cause a progressive loss of biophysical functions in the fetus, such that a test score can become progressively lower as more components of the biophysical profile become abnormal.
28. A biophysical profile score is not a perfect test. It could include either a false positive or a false negative.
29. A false positive is a situation where a problematic test score is subsequently proven to be incorrect. For example, a false positive would be present if a patient received a test score of 4/10 and it was subsequently discovered that no asphyxia was present, either by a repeat of the test which was then normal or because the fetus was delivered at that point and was not asphyxiated or compromised in any way. The likelihood of a false positive depends on what the original biophysical profile score was. For example, a score of 6/10, when repeated, will be normal two-thirds of the time. A score of 4/10, if repeated, will come out with a normal subsequent score about a third of the time.
30. A false negative would exist when a baby receives a normal biophysical profile score and subsequently there is an adverse outcome, i.e., the baby dies. Statistically, approximately seven out of every thousand ...