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CSC v. United States

United States District Court, Seventh Circuit

December 20, 2013

CSC, a minor, by his parents and next friends, PATOYA BRYANT and SEAN COBBS, and PATOYA BRYANT and SEAN COBBS, Plaintiffs,


DAVID R. HERNDON, Chief District Judge.



On November 10, 2010, plaintiffs filed a fourteen-count complaint against defendants United States of America, Southern Illinois Hospital Services (d/b/a Memorial Hospital of Carbondale) and two nurses who worked at Memorial Hospital of Carbondale ("MHC"). Plaintiffs claimed that negligence by defendants (or their agents) before Sean Cobbs' birth on July 31, 2009, caused his permanent brain injury. Plaintiffs filed this case pursuant to the Federal Tort Claims Act, 28 U.S.C. 2671 et. seq. Counts 1-6 alleged negligence and family expense claims against the United States for the conduct of Donald Bishop, M.D., Akua Afriyie-Gray, M.D. and Sridevi Panchamukhi, M.D. Dr. Bishop, Dr. Afriyie-Gray and Dr. Panchamukhi are all board certified obstetricians. (FPO, ¶¶1-3)[1] Counts 7-14 alleged claims against MHC nurses Erin Shaw and Angela Boatright and MHC for the conduct of the nurses.

On June 28, 2012, this Court approved a settlement between SIHS and plaintiffs (Doc. 58). This case proceeded to trial on July 15, 2013, against the United States (for the conduct of the three doctors).

Uncontested and Uncontroverted Facts

1. At about 2:10 a.m. on July 30, 2009, Patoya Bryant (DOB: 1-21-88) came to MHC about 37 weeks pregnant with her first child. Patoya presented with a "complaint of decreased fetal movement since approximately 1 a.m. on 07/30/2009." (PTX 1, p. 85; FPO, ¶6)[2]

2. MHC nursing personnel placed an external electronic fetal heart rate ("FHR") monitor on Patoya and it started recording her son's heart rate at about 2:23 a.m. (FPO, ¶7) At 2:23 a.m., nursing personnel charted that the FHR monitor showed moderate variability, accelerations and no decelerations. (FPO, ¶8) At 3:03 a.m. and 3:20 a.m., nursing personnel again charted that the FHR monitor showed moderate variability, accelerations and no decelerations. (FPO, ¶9)

3. Numerous witnesses testified that moderate variability of the FHR, accelerations of the FHR and the absence of FHR decelerations are all reassuring FHR patterns. These patterns indicated Sean was not in distress at that time from inadequate oxygen.

4. Dr. Afriyie-Gray reviewed the FHR monitor at 3:15 a.m. At about the same time, Dr. Afriyie-Gray ordered a STAT fetal biophysical profile (BPP) test. The BPP test was performed at 4:18 a.m. (FPO, ¶10)

5. A BPP test is an ultrasound examination of a fetus. It is a test of fetal well-being. A BPP has four ultrasound components: breathing, body movement, tone and amniotic fluid volume. A fifth component involves a non-stress test of the fetal heart rate. (FPO, ¶11) For each component, the fetus receives a score of 2 (normal) or 0 (abnormal). Thus, a perfect score on ultrasound components is 8/8. If the heart rate component is added, a perfect score is 10/10. (FPO, ¶12)

6. The recorded result of the 4:18 a.m. BPP test was 8/8. (FPO, ¶13) A valid BPP result of 8/8 is considered "highly reassuring" for the health of the fetus. (PTX 25, p. 5).

7. There was a great deal of evidence and testimony regarding the validity of the 4:18 a.m. BPP test result of 8/8. In its opening statement, the United States conceded that if the BPP result was valid, then Sean did not have a brain injury when Patoya came to the hospital on July 30. However, the United States claims the BPP result was not a valid score because Patoya's abdomen was manipulated before the test commenced. As will be developed hereafter, the Court disagrees and finds to the contrary.

8. At 4:38 a.m., Dr. Afriyie-Gray wrote the following order: "Pt (patient) may go home. She's to do fetal kick counts. Have her call office today to see if Dr. Bishop wants to see her today or tomorrow." (FPO, ¶15) However, shortly thereafter, Patoya told MHC nurse, Karen Griffin, she did not feel comfortable going home. Nurse Griffin decided to keep her at MHC. (FPO, ¶16)

9. At 7:08 a.m., nurse Griffin told Dr. Bishop that Patoya came in for decreased fetal movement and had a BPP with a score of 8/8. (FPO, ¶17). At 7:42 a.m. and 8:30 a.m., nursing personnel charted for the first time that the FHR monitor showed minimal variability and absent accelerations. (FPO, ¶18) At 7:56 a.m., Dr. Bishop reviewed the FHR monitor. (FPO, ¶19)

10. At about 8:30 a.m., Dr. Afriyie-Gray examined Patoya. After the examination, Dr. Afriyie-Gray wrote a note that provided in part: Normal "BPP but FHT (fetal heart tones) still not reassuring." Dr. Afriyie-Gray decided to admit Patoya for observation and continuous fetal monitoring. (FPO, ¶20)

Obstetricians Plan of Care Discussion Morning of July 30, 2009

11. About 9:00 a.m. on July 30, 2009, obstetricians Dr. Afriyie-Gray, Dr. Bishop and Dr. Keith Stanford met and discussed a plan of care for Patoya. At this time, Dr. Bishop was chief of the obstetric service at MHC. (Dr. Bishop video admission, Tr. p. 7). During their meeting, they discussed the 8/8 BPP score. During the meeting, Dr. Bishop was of the opinion that Patoya's baby should be delivered. He admitted:

Q. So you're saying the morning of July 30, you held a different opinion regarding the plan of care than Dr. Afriyie-Gray?
A. Yeah, we had different opinions. I wouldn't say that she was absolutely wrong, I wouldn't say that I was absolutely right, but we had different opinions.
Q. But the morning of July 30, was it your opinion that the baby should be delivered?
A. Yes.

(Dr. Bishop video admission, Tr. p. 52). However, the three doctors decided to let the pregnancy continue. Dr. Afriyie-Gray wrote that the plan was to "admit for observation/monitoring." (PTX 1, p. 108) After this meeting the morning of July 30, no doctor saw Patoya again until about 7:10 a.m. the next day. (FPO, ¶32)

FHR Monitor Strip Pattern after Physician Meeting on July 30, 2009

12. MHC nursing personnel continued to follow the FHR on July 30 and 31. From 9:41 a.m. on July 30 until the FHR monitor was disconnected for the emergency cesarean section, the strip showed minimal to absent variability. (FPO, ¶¶21-31). During this same time period, the FHR pattern included some late decelerations and two accelerations. (FPO, ¶¶21-31)

13. The FHR tracing also reported Sean's baseline heart rate. The nurses charted the FHR baseline as follows (FPO, ¶¶33-39 and 51):

A. 150 bpm: 0303 on July 30
B. 145 bpm: 0941 on July 30
C. 140 bpm: 0059 on July 31
D. 135 bpm: 0400 on July 31
E. 130 bpm: 0600 on July 31
F. 122 bpm: 0806 on July 31
G. 110 bpm: 0910 on July 31
H. 100 bpm: 0922 on July 31

It is clear that this steady decline in the FHR baseline was evidence of Sean losing reserves in the womb from progressive oxygen deprivation.

14. All expert witnesses and MHC nursing personnel testified that the FHR pattern was nonreassuring after the 9:00 a.m. meeting on July 30 and remained so until it was disconnected for the emergency cesarean section.

Dr. Panchamukhi's Review of FHR Strip Evening of July 30, 2009

15. At 4:49 p.m. and 5:32 p.m. on July 30, obstetrician Dr. Panchamukhi reviewed the FHR strip. (PTX 3, pp. 99 and 104; Angela Boatright video testimony, dep. 39-40). At about 9:18 p.m. on July 30, nursing personnel notified obstetrician Dr. Panchamukhi about the non-reassuring FHR tracing. Dr. Panchamukhi reviewed the FHR tracing again at about 9:19 p.m. (FPO, ¶28). She took no steps to deliver Sean herself or call Dr. Bishop to deliver Sean. At the request of nurse Erin Shaw, Dr. Panchamukhi ordered a repeat BPP test for the morning of July 31. (PTX 1, p. 119) A repeat BPP had been ordered by Dr. Afriyie-Gray for "48 hrs" after the first test. (PTX 1, p. 116)

2nd BPP Test

16. The BPP test ordered by Dr. Panchamukhi was completed at about 7:10 a.m. on July 31, 2009. It was also performed by MHC-employed sonographer, Susan Lingle. (FPO, ¶41) The score was 2 out of 8. (FPO, ¶40) Such a score requires immediate delivery of a baby. (PTX 25, p. 6).

17. Dr. Afriyie-Gray and plaintiffs' obstetrical experts, Dr. Harlan Giles and Dr. Bruce Bryan, all testified that Sean's BPP score of 2/8 required his immediate delivery. Even defendant's obstetrical expert, Dr. Allison Cahill, testified the score of 2/8 mandated immediate delivery of Sean.

Dr. Bishop's "Assumption" the Score was 6/8

18. At 0710 on July 31, 2009, Nurse Erin Shaw wrote the following note: "Dr. Bishop at bedside. BPP completed. Informed of 2/8 result." (FPO, ¶43) However, regarding the second BPP score, Dr. Bishop wrote a note at 0730 on July 31, 2009, that provided in part: "FHR c/ (with) absent to minimal variability. BPP 6/10 no breathing." (FPO, ¶44)

19. No one ever told Dr. Bishop the score was 6/8. Instead of asking nurse Shaw or Ms. Lingle the actual score, Dr. Bishop made an "assumption" the score was a 6/8. This "assumption, " made without any apparent basis, is described by Dr. Bishop in his operative report as follows:

When I arrived at hospital this morning at 6:40 a.m., she was getting the 2nd biophysical profile. The ultrasound tech was still present. I believed that I had been told that the biophysical profile was now 6 of 8 on ultrasound parameters and was 6 of 10 including the nonreactive NST. I was told, "There are no breathing movements, " and I thought that there had been points assigned for the parameters of movement, tone, and amniotic fluid volume. However, there was a miscommunication and the actual result on the biophysical was 2 of 10 with no points for fetal movement, breathing or flexion-extension and 2 points for amniotic fluid. Under the assumption that we had a more equivocal situation, I recommended amniocentesis and discussed the risks and benefits in the context of a biophysical profile of 6 of 10.

(FPO, ¶45) (emphasis added)

20. Even though the FHR strip had been non-reassuring all night and even with (in his mind) a 6/8 BPP score in a woman with gestational diabetes, Dr. Bishop decided to let the pregnancy continue. Moreover, he did an amniocentesis around 7:30 a.m. to evaluate Sean's lungs, while his brain was getting inadequate oxygen. (PTX 1, pp. 108-109).

21. Dr. Bishop reviewed the FHR strip at 6:40 a.m., 8:06 a.m., 8:17 a.m. and 8:30 a.m. and then scheduled a cesarean section for noon on July 31. (PTX 4, pp. 14-15; Angela Boatright video testimony, dep. 43-44). Despite these mounting and more than significant problems, Dr. Bishop then went to his office to see other patients that morning.

22. In an attempt to help Sean, nurse Boatright gave Patoya oxygen at 9:10 a.m. (PTX 4, p. 16). She also called Dr. Bishop and gave him an update on the FHR strip, which continued its drop in baseline. (PTX 4, p. 16).

23. As one would expect, Sean's heart rate continued to drop. At about 9:23 a.m., it crashed to 60 beats per minute. (PTX 3, p. 210). Patoya was rushed to a delivery room for an emergency cesarean section.

24. Sean was delivered lifeless at 9:38 a.m. He had no heart rate, no respirations, no reflex response, flaccid tone and blue color. (PTX 1, p. 81) He had a one-minute Apgar score of 0 (0-10 scale). (PTX 1, p. 81).

25. Medical and nursing personnel began resuscitation of Sean. He received chest compressions for 10 minutes. He was intubated and received epinephrine, a heart stimulant drug. (PTX 1, p. 82) Their heroic efforts saved Sean's life. However, as noted below, he had a severe brain injury from oxygen deprivation before his birth. The record is replete with medical evidence and testimony that this brain injury caused severe disfigurement and much pain and suffering for Sean. It has dramatically degraded his intellectual, adaptive, attention, language, gross motor and fine motor functioning. A few of the disfigurements include his awkward gait, pronation of the feet, a microcephalic head, his left arm that requires a brace and hangs like a "chicken wing, " and his left leg which is crooked and also requires a brace and his constant drooling. His parents testified that he, still at age four, wears a diaper and always will, that he spits when he is angry, mad and excited and that he wears eye glasses that are hard to keep on him. Further, he associates the tooth brush with pain and he extremely dislikes the eye drops that are required every morning and evening.


Standard of Care

26. Dr. Bishop, Dr. Afriyie-Gray and Dr. Panchamukhi all violated the standard of care. Dr. Bryan and Dr. Giles detailed the violations of the standard of care. The United States' only obstetrical expert, Dr. Cahill, offered no opinions on the standard of care of the three physicians during the admission at MHC, presumably because she believed they violated the standard of care (as detailed by Dr. Bryan and Dr. Giles).

27. Dr. Bishop took the stand at trial. He did not even testify that he complied with the standard of care in his handling of Patoya in the hospital.

28. Dr. Bishop, Dr. Afriyie-Gray and Dr. Panchamukhi violated the standard of care as follows:

A. Dr. Bishop and Dr. Afriyie-Gray by failing to take steps to deliver Sean the morning of July 30, following their plan of care meeting. This violation was continuing for the next approximately 24 hours;
B. Dr. Panchamukhi failed to deliver Sean the evening of July 30 or contact Dr. Bishop and demand that he deliver Sean that evening;
C. Dr. Bishop by failing to find out the actual BPP score of 2/8 and instead making an "assumption" the score was 2/8;
D. Dr. Bishop by failing to perform an emergency C-Section around 7:30 a.m., even with his "assumption" the BPP score was 6/8; and
E. Dr. Bishop by further delaying Sean's delivery to do an amniocentesis around 7:30 a.m. on July 31.


(Type of Sean's Brain Injury)

29. The Court concludes, based on all the evidence at trial, that Sean suffered a hypoxic-ischemic brain injury. This is a brain injury from oxygen deprivation to the brain. It is also called hypoxic ischemic encephalopathy ("HIE").

30. There is no credible evidence or reasonable inference that Sean suffered a brain injury from any other cause, such as infection, blood disorder or a genetic disorder.

31. Even Sean's treating doctors at Cardinal Glennon Children's Hospital concluded Sean had a HIE brain injury. For example, pediatric neurologist Dr. Thomas Geller wrote on April 8, 2011: "Pt is a 20 month old male with history of Hypoxic-Ischemic encephalopathy at birth...." (PTX 41, p. 30). Dr. Sean Goretzke, a pediatric neurologist from the Cardinal Glennon cerebral palsy clinic, wrote on March 17, 2011: "CP secondary to perinatal hypoxic ischemic injury." (PTX 42, p. 2). In lay terms, this means Sean's cerebral palsy occurred around birth (perinatal) from oxygen deprivation to his brain.

Patoya's Complaint of Decreased Fetal Movement

32. Patoya came to MHC at 2:10 a.m. on July 30, 2009, with a "complaint of decreased fetal movement since approximately 1 a.m. on July 30, 2009." (PTX 1, p. 85) The government portrays this complaint as the equivalent of fetal demise. However, its own deemed-employee, Dr. Afriyie-Gray, provided the following video testimony at trial:

Q. And why did you at that time, 04:38, give a telephone order that Patoya may go home?
A. It's standard practice. Essentially people come in with decreased fetal movement all the time, and that's at many different gestational ages. If the strip is - sometimes even if the strip is perfect, we order a BPP, because it reassures the patient in seeing their baby moving. And so once this is done, typically that's enough for us to understand that the baby is alive and well, and we can discharge the patient home. At that time, I don't understand that she had any other complaints, and so I discharged her home.
Q. And your telephone order that Patoya may go home, that's, I guess, further evidence of your confidence at that time in the eight out of eight BPP score; correct?
A. Yes. But I'm a little bit conservative. Because it wasn't ten out of ten, my intention was for her to follow up with her primary obstetrician the next day and perhaps even repeat the test if necessary. So that's why I have on the order to call the office that day and see if her primary physician would like to see her within that day or the next day. And I also instructed her to do fetal kick counts and monitor the movement for herself in the interim.
Q. I understand. But at this point, if you had any concern about fetal well-being, you would not have given the telephone order for Patoya to go home; correct?
A. Of course.

(Dr. Afriyie-Gray video admission, Tr. pp. 37-38)(emphasis added). Indeed, all experts agreed that complaints of decreased fetal movement are common.


(Timing of Sean's Brain Injury)

33. It is also agreed that Sean's brain injury did not occur months or even weeks before his birth. The United States claims the HIE injury occurred in the few days before Patoya came to the hospital on July 30, 2009. However, except for a "cord accident" theory offered by Dr. Harvey Kliman, the United States never identified a specific event that occurred during the three day period before Patoya's admission on July 30 that could account for Sean's devastating brain injury. The lack of such a specific event does not give the Kliman theory credence.

34. Of important note, none of the experts called by the United States testified that the events that occurred in the last 45 minutes before Sean was born did not contribute to (i.e. was not a proximate cause of) his brain injury.

35. The plaintiffs' experts uniformly testified that Sean's severe brain injury occurred exclusively or almost exclusively (Dr. Stephen Glass) in the last 45 minutes before his birth.

Review of Opinion Testimony on Timing of Injury

36. Dr. Stephen Glass of Seattle, Washington, is a pediatric neurologist who testified for plaintiffs. Pediatric neurology involves the diagnosis of and treatment of newborn and pediatric brain injuries. Since Dr. Glass was the only pediatric neurologist to testify in this case, the Court gives particular attention to his testimony. In this particular instance, the Court found the testimony to be credible and quite helpful in assessing the facts and making conclusions.

Plaintiffs' Witnesses on Timing of Injury

37. As plaintiffs' first witness of the trial, Dr. Glass testified at length regarding his "differential etiology" for determining the type and timing of Sean's brain injury. This type of analysis by Dr. Glass fully comports with Rule 702 of Federal Rules of ...

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