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Zhao v. United States

United States District Court, S.D. Illinois

August 22, 2019

YONG JUAN ZHAO, on behalf of her minor son, Steven Zhao, Plaintiff,



         Yong Juan “Maggie” Zhao filed this medical malpractice action under the Federal Tort Claims Act (“FTCA”) on behalf of her young son, Steven Zhao.[1] Mrs. Zhao alleges that negligent care by her physician, Dr. Paul Cruz, during her pregnancy with Steven resulted in shoulder dystocia and permanent injury to Steven's right brachial plexus.

         The Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §§ 1346(b) and 2674. At the time of his treatment of Mrs. Zhao, Dr. Cruz was an employee of Christopher Greater Area Rural Health Planning Corporation (“CRHPC”), a federally supported grant clinic, and thus he is deemed an employee of the United States Public Health Service in accordance with 42 U.S.C. § 233(g). Venue is uncontested and proper as CRHPC operates within, and Dr. Cruz and the Zhao family reside in, the Southern District of Illinois. The alleged negligence giving rise to Mrs. Zhao's claim also occurred in the Southern District of Illinois. And it is likewise uncontested that Mrs. Zhao exhausted her administrative remedies with the United States Department of Health and Human Services by submitting an administrative tort claim seeking damages in the amount of $30, 000, 000.

         The Court conducted a bench trial from April 9-10, 2019, and now makes the following findings of fact and conclusions of law.



         Dr. Paul Cruz is a now-retired obstetrician/gynecologist (“OB/GYN”) who obtained his Illinois medical license in 1988 and practiced for twenty-eight years (Doc. 51, pp. 516-17). He was born in New York and attended school, including medical school, in Puerto Rico (Id.). As he did at CRHPC, throughout his career Dr. Cruz focused his obstetrical practice on treating mainly underserved, Medicaid-dependent women (Id. at pp. 518-19). Ms. Zhao was not a patient of Dr. Cruz until her pregnancy with Steven (Doc. 46, p. 48).

         Steven Zhao is the fourth child born to Maggie and Zhi Qiang Zhao (Id. at p. 351). Steven has three older brothers: Kevin, Alex, and Benjamin (Id. at pp. 351-52). The parties stipulated that Mrs. Zhao gave birth to the three older boys via vaginal delivery with no complications (Doc. 41). Her second son, Alex, was a very large baby, weighing eleven pounds, twelve ounces (Ex. 10, p. 4). Mrs. Zhao later estimated that her labor with Alex lasted six hours, but she was unfamiliar with what the “second stage of labor” denoted (Doc. 48, pp. 360, 386). To effect Alex's delivery, Mrs. Zhao had to give birth seated on the edge of a chair bending her chest toward her knees while a doctor or nurse on each side helped hold her up, another doctor pressed on her abdomen, and another doctor was underneath her to get the baby out (Id. at p. 360). Mrs. Zhao testified that she told Dr. Cruz about the maneuvers required for Alex's delivery, but neither he nor anyone in his office asked her how long her labor with Alex lasted (Id.).

         Mrs. Zhao was thirty-five years old when Steven was born (Ex. 18, p. 2). Her pregnancy with Steven was unplanned (Id. at p. 354). After Steven's birth, Mrs. Zhao underwent a fallopian tube occlusion procedure for the purpose of permanent birth control, performed by Dr. Cruz (Id.). That procedure failed, so Mrs. Zhao chose an intrauterine device (“IUD”) to prevent future pregnancies (Id. at pp. 354-55; Doc. 51, pp. 548-50).[2]

         Mrs. Zhao and her husband are first generation Chinese immigrants and permanent residents of the United States. (Doc. 48, pp. 351, 378). They operate a Chinese buffet restaurant attached to a mall in Marion, Illinois, where Mrs. Zhao estimates she now works forty hours per week (Id. at p. 351). The buffet is the Zhaos' only source of income (Id. at p. 379). During Mrs. Zhao's pregnancy with Steven, the business was doing well enough for Mrs. Zhao to hire someone to help her work at the buffet, but, because the adjacent mall has closed down, business has declined (Id. at pp. 379, 389).

         The Zhaos do not speak or understand English (Id. at pp. 390, 401; Doc. 51, p. 434). Mrs. Zhao required a translator to accompany her to all obstetrical visits and to the hospital (Doc. 51, p. 438, 520). The Zhao family speaks Chinese at home, as do the children (Doc. 48, p. 351).

         Steven briefly attended the trial in this case and was observed to be a typically rambunctious, taciturn four-year-old. Steven's right arm is obviously damaged. Steven can speak English (Ex. 8, pp. 20, 25). He currently attends an early childhood/pre-kindergarten program where he receives special education services because his right arm injury limits his ability to otherwise benefit from or participate in the classroom. (Doc. 51, p. 482). Additional impacts and specifics of Steven's disability are discussed below.

         When he was born and his head delivered-after two attempts to vacuum extract his head - Steven's shoulders remained stuck inside his mother for nine minutes (Doc. 47, pp. 130, 152). Steven weighed eleven pounds, six ounces when he was born on June 15, 2014 (Doc. 46, p. 95).

         Prenatal Care

         Mrs. Zhao's first prenatal visit with Dr. Cruz occurred December 13, 2013. At that visit, Mrs. Zhao communicated a number of things to Dr. Cruz: she was not happy with this unplanned pregnancy; she wanted to be sterilized; and, in the event she needed a Cesarean section for delivery of the baby, she wanted a tubal ligation performed at the time of the Cesarean section (Doc. 46, p. 79-80). Her desire for tubal ligation following a Cesarean section is charted on the first page of Dr. Cruz's medical records (Ex. 10, p. 1).

         Dr. Cruz classified Mrs. Zhao's pregnancy as “high risk” because at the time thirty-five years of age was accepted as “advanced” maternal age (Doc. 51, pp. 523-24).

         As a matter of course, Dr. Cruz and his staff asked patients about previous pregnancies in order to gather information pertinent to management of the current pregnancy (Doc. 46, p. 44). In Mrs. Zhao's case, Dr. Cruz's nurse practitioner noted the date and state of Mrs. Zhao's three previous live births; that the births were vaginal; and the weight of the babies (Ex. 10, p. 4). The birth weight of Mrs. Zhao's second son, Alex, was noted to be 11.12 pounds (Id.).[3]

         Dr. Cruz did not ask Mrs. Zhao-nor did he know if anyone at his office had asked-details or anomalies of her previous pregnancies, labors, deliveries, or postpartum management (Doc. 46, pp. 48-49). For example, Dr. Cruz did not know or find out at how many weeks Mrs. Zhao delivered her previous babies (Id. at p. 49). He did not know or find out in which hospitals or in which cities Mrs. Zhao had previously delivered, nor did he seek records from those facilities (Id. at p. 64). He did not know or investigate the length of the second stage of labor of any of Mrs. Zhao's previous deliveries-even the delivery of eleven-pound, twelve-ounce Alex (Id. at pp. 55-56). The section of Dr. Cruz's prenatal record for “comments/complications” of Mrs. Zhao's previous births was blank-Dr. Cruz assumed that meant there had been no complications (Id. at p. 49). Dr. Cruz also assumed that the blank sections for gestational age, length of labor, and anesthesia meant Mrs. Zhao had not known when asked; he again assumed she had been asked (Id. at pp. 50-52). There was no satisfactory explanation for why he assumed that blank spaces on one section of the form denoted “there were none” (complications) and blank spaces on another section of the same form denoted “patient didn't know” (Id. at p. 52).

         Additional information regarding Mrs. Zhao's previous pregnancies, labors, deliveries, and postpartum healing would admittedly have been important with respect to managing Mrs. Zhao's pregnancy and delivery of Steven (Id. at p. 53). For example, a previous lengthy labor would indicate the previous labor had been extended or difficult (Id. at pp. 53-54). It would have alerted Dr. Cruz to the probability of another extended or difficult labor, particularly a prolonged second stage of labor (Id. at p. 56). The main cause of a prolonged second stage of labor is cephalopelvic disproportion-discrepancy between the size of the baby's head and the maternal pelvis (Id.).

         Despite minimal knowledge of her labors and deliveries, Dr. Cruz was confident in Mrs. Zhao's “proven pelvis” because she had previously given birth to an eleven-plus-pound baby (Id. at p. 57). Dr. Cruz admitted, however, that Mrs. Zhao's delivery of a large baby with no complications in the past did not preclude the possibility that the labor and delivery had been lengthy or difficult (Id. at p. 62). Even with Mrs. Zhao's “proven pelvis, ” there was no way to determine whether she experienced cephalopelvic disproportion during her previous deliveries, because there is no such history recorded in Dr. Cruz's records, and her past records were not obtained (Id. at p. 63). In other words, there very well might have been cephalopelvic disproportion during Alex's delivery, despite the fact he was delivered without permanent injury (Id. at p. 62).

         A birthweight of eleven pounds, twelve ounces is “macrosomic.” Dr. Cruz identified “macrosomia” as a birthweight over 4, 000 grams-eight pounds, ten ounces (Id. at pp. 58-59).[4] Dr. Cruz knew Mrs. Zhao had a previous macrosomic birth (Id. at p. 67). He knew the information of a previous macrosomic birth was significant (Id.). And Dr. Cruz admitted that the previous macrosomic birth was material to management of Mrs. Zhao's pregnancy, labor, and delivery of Steven because a previous macrosomic baby increases the risk of a subsequent macrosomic baby (Id.).

         A macrosomic baby means an increased risk of shoulder dystocia (Id. at p. 59). Shoulder dystocia is an absolute medical emergency occurring during delivery (Id. at p. 62). Simply put, the larger the baby, the broader the shoulders, the greater the likelihood the shoulders become trapped in the birth canal at delivery[5] (Id. at pp. 60-61). Because of the dire outcomes associated with shoulder dystocia, it is vital for the obstetrician to be aware of any presenting risk factor for macrosomia ( p. 62). Macrosomia increases the probability of shoulder dystocia by at least fifteen percent (Id. at p. 59). The more the baby weighs, the more risk for shoulder dystocia (Id.). Birthweight in excess of 4, 500 grams (nine pounds, fourteen ounces), for example, increases the risk of shoulder dystocia from 9.2 to 24 percent (Doc. 47, p. 307). The risks go up and up from there (Doc. 46, p. 61).

         So, at the earliest stages of Mrs. Zhao's prenatal care, based on her previous delivery of a macrosomic baby, Dr. Cruz knew Mrs. Zhao was at markedly greater risk of delivering another macrosomic baby, and Dr. Cruz knew that if Mrs. Zhao were to deliver another macrosomic baby, the risk of shoulder dystocia during delivery significantly increased (Id. at p. 67).

         Dr. Cruz recognized that estimating fetal weight would be particularly important in this case given Mrs. Zhao's previous macrosomic birth (Id. at p. 84). To do so, Dr. Cruz employed a clinical method for estimating fetal weight he learned during residency from his department chairperson, Dr. Sicurenza (Id. at p. 85; Doc. 51, p. 517). This “Sicurenza method” is not recognized by the American College of Obstetricians & Gynecologists (“ACOG”) or any professional medical body, nor is it published in any medical literature (Doc. 46, pp. 84-85). In fact, no medical expert in this case has heard of it. Dr. Cruz considers the method his own personal tool for estimating fetal weight (Id. at p. 88). The method involves adding measurements of the fundus and pelvis (Id. at p. 86).

         Using his “Sicurenza method, ” Dr. Cruz estimated the birthweight would be eight pounds, one ounce, accurate to plus or minus one pound (Id. at p. 89). In other words, Dr. Cruz proceeded to Steven's delivery with the opinion that Steven would weigh between seven pounds, one ounce and nine pounds, one ounce at birth (Id.).

         Dr. Cruz also recorded fundal height measurements, comparing them to the fetal gestational age (Id. at p. 91). When the fundal height measurement corresponds to the week of gestation, the baby is considered to be within average size parameters (Id. at pp. 91-92). If the fundal height varies from the gestational week by two centimeters or more, an ultrasound is indicated to rule out macrosomia (Id.). For example, on May 22, 2014, at 36.6 weeks gestational age, Mrs. Zhao's fundal height measured thirty-six-no indication of mismatched size/gestational age (Ex. 41, p. 56).

         On May 29, 2014, at 37.6 weeks gestational age, Mrs. Zhao's fundal height measurement was forty-more than a two-centimeter variance (Id.; Doc. 46, p. 93). Dr. Cruz did not order an ultrasound (Id.).

         On June 12, 2014, at 39.6 weeks gestational age, the recorded fundal height was written over and is either “41” or “42” (Doc. 46, p. 97; Ex. 41, p. 56). Dr. Cruz agreed it could very well be a “42” and thus another discrepancy of two or more centimeters (Doc. 46, p.98). Dr. Cruz did not order an ultrasound (Id.).

         On June 4, 2014, at 38.4 weeks gestation, Mrs. Zhao felt pressure and experienced contractions (Ex. 12, p. 2; Doc. 48, p. 363). She had also noticed, with alarm, part of her cervix protruding from her vagina (Id.). She presented to Memorial Hospital of Carbondale (Id.). During the exam to rule out labor, the hospital's OB/GYN noted the cervix was inflamed with a long tongue of tissue hanging out from the vagina (Id.). The doctor surmised that this cervical prolapse had been caused by a tear of the cervix during prior labor and delivery (Id.). Dr. Cruz agreed that the laceration and cervix prolapse was likely due to one of Mrs. Zhao's prior deliveries (Doc. 47, pp. 186-87). Dr. Cruz did not further inquire at that time into any particular difficulties during or resulting from Mrs. Zhao's previous deliveries, even into the delivery of eleven-pound, twelve-ounce Alex (Id. at p. 186).

         At Mrs. Zhao's prenatal visit with Dr. Cruz on June 12, 2014, she was at thirty-nine weeks, six days gestation (Ex. 41, p. 56). Mrs. Zhao expressed concern to Dr. Cruz because her past three deliveries had all occurred before the due date (Doc. 48, p. 363). Because she was nearly forty weeks gestation, Dr. Cruz scheduled an induction of labor for June 19, 2014 (Doc. 51, pp. 530-31; Ex. 41, p. 56). At that June 12th visit, Dr. Cruz discussed the risk and benefits of induction, specifically that an induction carries a greater risk of Cesarean section (Doc. 51, p. 531). Dr. Cruz explained the risks of a Cesarean section to Mrs. Zhao, including bleeding, infection, trauma to the abdominal pelvic organs, and increased risk of maternal and fetal death (Id. at p. 532).

         Mrs. Zhao and Dr. Cruz remembered their prenatal discussions about the possibility of Cesarean section differently. Dr. Cruz recalled both the June 12 discussion of Cesarean section risks and Mrs. Zhao's early term request for a tubal ligation at the time of delivery if she required a Cesarean section (Id.). He also recalled Mrs. Zhao, through her interpreter, telling him on multiple occasions that she wanted to avoid any kind of incision because she wanted to return to work as quickly as possible (Id. at p. 533). Unfortunately, Dr. Cruz never charted any such preferences in Mrs. Zhao's records.

         Mrs. Zhao recalled asking Dr. Cruz about a Cesarean section, including suggesting and requesting the procedure, three times during her prenatal care (Doc. 48, p. 361). She asked or suggested a Cesarean section at her first visit when discussing her desire for tubal ligation (Id. at pp. 361-63). Then after her cervix prolapsed, she testified that she asked Dr. Cruz on more than occasion about the possibility of a Cesarean section before her labor began (Id.).

         Labor and Delivery

         Before her scheduled induction, Mrs. Zhao went into labor. On June 15, 2014, she arrived at Memorial Hospital of Carbondale already dilated to seven centimeters (Ex. 19, p. 1). She was past her due date, at forty weeks and two days gestation (Id.).

         Crystal Tellor was Mrs. Zhao's primary labor and delivery nurse; she testified live at trial on behalf of the United States (Doc. 51, p. 410). Nurse Tellor frequently worked with Dr. Cruz, and Dr. Cruz described her as one of the best nurses in labor and delivery (Doc. 46, p.40). Sylvia Loh, Mrs. Zhao's interpreter who had accompanied her to prenatal visits, was present with Mrs. Zhao throughout labor and delivery (Doc. 48, p. 390).[6]

         Nurse Tellor relied on an iPad for interpretation (Doc. 51, p. 437). To use the iPad interpreter, Nurse Tellor dialed a number, gave a brief description of the medical issue, and asked for a Mandarin Chinese speaker (Id.). Dr. Cruz testified he did not utilize the iPad for interpretation, and he has no memory of seeing one in the delivery room (Doc. 46, p. 47). The Labor and Delivery Flowsheet indicates that an iPad was present in the delivery room. (Ex. 15, p. 1; Doc. 51, p. 420). And Nurse Tellor testified that Ms. Loh would frequently speak over the iPad interpreter (Doc. 51, pp. 440-441).

         When Mrs. Zhao was admitted, Dr. Cruz performed an additional procedure-a Leopold's Maneuver-to assess whether the baby was “big” or “normal size” (Doc. 46, p. 100; Doc. 51, pp. 533-34). Dr. Cruz's Leopold's maneuver findings told him the baby was “normal” size, eight or nine pounds, confirming his “Sicurenza” estimation of eight pounds one ounce, plus or minus one pound (Doc. 46, pp. 100-01; Doc. 51, p. 534).

         Nurse Tellor also performed a Leopold's maneuver on Mrs. Zhao (Doc. 51, p. 446). From her execution of the Leopold's maneuver, Nurse Tellor concluded that the baby would be large; heavier than eight pounds (Id.). Nurse Tellor did not convey her own findings to Dr. Cruz (Id. at p. 447). The Leopold exam did not give Nurse Tellor an exact estimate of the baby's weight; properly estimating the weight would have required an ultrasound (Id. at p. 448). Dr. Cruz did not order an ultrasound during labor, but-given her conclusion that the baby was larger than average-Nurse Tellor admitted she would not have been surprised if Dr. Cruz had ordered an ultrasound at that time (Id.).

         Mrs. Zhao did not receive an epidural (Doc. 48, p. 397). She was given Nubain, a narcotic, for pain management during labor (Ex. 15, p. 2). She progressed to full dilation and began to push (Ex. 19, p. 1). Based on Mrs. Zhao's attempts to push with prompts through the iPad interpreter, it was not clear to Nurse Tellor whether the iPad interpreter was properly instructing Mrs. Zhao or whether Mrs. Zhao fully understood the interpreter (Doc. 51, p. 418). Nurse Tellor then tried to demonstrate what she was asking Mrs. Zhao to do (Id.).

         Mrs. Zhao pushed for over an hour and a half (Ex. 19, p. 1). Ms. Loh, Mrs. Zhao's interpreter, relayed to Nurse Tellor that Mrs. Zhao was exhausted (Ex. 15, p. 4). At trial, Dr. Cruz admitted that the baby's extreme size was a likely cause of Mrs. Zhao's exhaustion (Doc. 46, p. 105).

         Mrs. Zhao does not recall Dr. Cruz offering to perform a Cesarean section at any point (Doc. 48, p. 395). She says she asked the doctor for a Cesarean section when she became too exhausted to push, but Dr. Cruz declined (Id. at p. 392). Dr. Cruz told her it was too late for the surgery (Id.).

         On the other hand, according to Dr. Cruz and Nurse Tellor's recollection and recorded notes, Dr. Cruz did offer Mrs. Zhao a Cesarean section. After Mrs. Zhao struggled to push for approximately ten minutes, Dr. Cruz-though it is unclear through what method of interpretation-offered to assist vaginal delivery with the Mityvac vacuum machine (Doc. 51, p. 420; Ex. 15, p. 4). After describing the Mityvac, Dr. Cruz claims he offered Mrs. Zhao the option of a Cesarean section (Doc. 51, p. 420; Ex. 15, p. 5). Mrs. Zhao continued to struggle pushing, so three minutes later, Dr. Cruz relayed the risks and benefits of Cesarean section and Mityvac to Mrs. Zhao. (Doc. 51, pp. 420-21; Ex. 15, p. 5). He told her that the Mityvac extraction carried a risk of brain injury because the suction could damage vessels or bone structures of the baby's head (Doc. 46, p. 110). That was the only risk of vacuum delivery Dr. Cruz explained to Mrs. Zhao (Id.). The Labor and Delivery record indicates that Mrs. Zhao then agreed to Mityvac extraction to assist a vaginal birth (Ex. 15, p. 5).

         The vacuum extractor uses suction pressure to attempt assisting delivery of the fetal head (Doc. 47, p. 129). According to Dr. Cruz, at the time he applied the vacuum extractor, the top of the baby's head, the vertex, appeared to be close to the pelvic outlet (Doc. 46, p. 115). Dr. Cruz testified, however, that the baby's head was in fact not at the pelvic outlet (Id.). Nurse Tellor testified that at the time Dr. Cruz applied the vacuum, the baby's head was not crowning (Doc. 51, pp. 441-42). Dr. Cruz also acknowledged that when a mother has been pushing for as long as an hour and a half, the baby's head can elongate and mold into the pelvic cavity and the scalp of the baby's head might swell and appear to be further descended than the baby's skull is actually descended (Doc. 46, pp. 113-115).

         Dr. Cruz applied the vacuum to the baby's head and pulled (Doc. 47, p. 129; Ex. 15, p. 5). The vacuum popped off (Doc. 47, pp. 129-30). Dr. Cruz reapplied the vacuum and pulled (Doc. 47, p. 130). Again, the vacuum popped off (Id.). Only three pop-offs are allowed during the course of attempted vacuum assisted delivery, but Dr. Cruz was able to deliver the baby's head without the third application of the vacuum (Id. at pp. 130-31). The suction, pulling on the baby's vertex, drew the head further and further through the pelvis until crowning; Steven's head then delivered (Id. at pp. 130-31; Doc. 51, p. 424). His shoulders remained, impacted, inside (Doc. 47, p. 152).

         Shoulder Dystocia

         The shoulder dystocia was an immediate medical emergency (Doc. 47, p. 152). Nurse Tellor hit the red emergency button in the delivery room to call for extra help (Doc. 51, p. 425). The iPad, ostensibly translating between Nurse Tellor and Mrs. Zhao, was knocked to the ground (Id. at p. 454). Dr. Cruz directed the nurses to put Mrs. Zhao in position for the “McRoberts Maneuver” (Id. at p. 426). Nurses flexed both of Mrs. Zhao's legs back toward her abdomen in an effort to re-angle the pelvis (Id.; Doc. 47, p. 153). Dr. Cruz had his hands on the baby's head, applying traction-pulling the head (Doc. 47, pp. 154-55). It was imperative that a doctor employ gentle traction during the McRoberts maneuver, as any excess traction would damage the baby's brachial plexus (Id. at pp. 155-56). The McRoberts maneuver, including the traction applied to Steven's head by Dr. Cruz, did not relieve the shoulder dystocia (Ex. 21, p. 1).

         With the McRoberts maneuver ongoing, Dr. Cruz called for another nurse to apply suprapubic pressure right above Mrs. Zhao's pubic bone in an effort to angle the baby's shoulders toward the largest angle of the pelvis (Doc. 47, p. 154; Doc. 51, p. 427). Adding suprapubic pressure to the McRoberts maneuver, including the continued traction to Steven's head by Dr. Cruz, did not relieve the shoulder dystocia (Doc. 47, p. 154; Ex. 21, p. 1).

         Dr. Cruz then attempted another intervention, the “corkscrew” or “Woods Maneuver” (Doc. 47, pp. 156, 164). Dr. Cruz attempted to insert his right hand inside the vagina in an effort to grasp and move the baby's posterior shoulder counterclockwise while guiding the baby's head into the turn with his left hand (Id. at pp. 159, 161). The anterior shoulder remained impacted. Dr. Cruz was not able to move the shoulder, in part because he had no space to maneuver his hand (Id. at p. 159).

         When the size of the baby with respect to the vagina leaves so little space, preventing the doctor from using an inserted hand to sweep around and relieve the shoulder impaction, an episiotomy (cutting the tissue between the vagina and the rectum) or a proctoepisiotomy (cutting the tissue from the vagina fully into the rectum) may give the doctor sufficient room to maneuver the baby and relieve the dystocia (Id. at pp. 163, 230; Doc. 51, pp. 473-74). Dr. Cruz did not perform either an episiotomy or a proctoepisiotomy.

         Dr. Sherry Jones, an OB/GYN working labor and delivery that day at Carbondale Memorial, responded to the call for help from Mrs. Zhao's room (Doc. 51, p. 467). Dr. Jones testified live at trial on behalf of the United States and explained that, in part by virtue of having smaller hands to navigate the tight space, she was able to put her hand in the vagina and successfully rotate the baby to release the posterior shoulder (Id. at pp. 467-68; Doc. 47, p. 162). Dr. Jones agreed that an episiotomy could be helpful in circumstances when the doctor needs more space in order to reach the baby's arm inside the vagina (Doc. 51, pp. 473-74). When Dr. Jones's smaller hands finally relieved the shoulder impaction, Dr. Cruz again pulled on the baby's head to deliver the rest of his body (Id. at p. 469; Doc. 47, pp. 164-65).

         Steven weighed eleven pounds, six ounces and was 19.5 inches long when he was born (Ex. 18, p. 2).

         In Dr. Cruz's previous shoulder dystocia deliveries, he estimated he had been able to relieve the dystocias within three minutes (Doc. 47, p. 152). Dr. Cruz knew that within ten minutes, even within five minutes, of ongoing shoulder dystocia, the baby is prone to brain damage (Id. at pp. 165-66). Dr. Jones testified that in her experience, if a shoulder dystocia is not resolved within thirty seconds, she starts to get nervous (Doc. 51, p. 476). And, the longer the dystocia persists, the more nervous one gets (Id.). As the seconds and minutes ticked by in Mrs. Zhao's delivery room, Steven's shoulders remained trapped; Mrs. Zhao was crying; the iPad had been knocked over; Ms. Loh was crying, too upset to translate or communicate at all; Steven's face was blue, and he was not breathing. (Id. at p. 455; Doc. 47, p. 166).

         Steven's shoulder dystocia lasted nine minutes (Ex. 18, p, 2). Dr. Cruz asked the staff in the delivery room not to call out the time as the dystocia went on (Doc. 47, p. 167). Dr. Cruz testified that he didn't want to know the amount of time elapsing during the dystocia because after ten minutes he feared he would “do something that I may have to regret” (Id.). After ten minutes, he would apply excessive traction to the baby's head (Id.). Because he instructed the nurses not to count out the minutes, however, Dr. Cruz did not know if or whether Steven's dystocia had reached the ten-minute mark (Id. at pp. 167-68). Dr. Cruz admitted that given the time pressure and increasing nervousness as Steven's shoulder dystocia wore on, it was possible he inadvertently exerted excessive traction on Steven's head (Id. at pp. 168-71). Doing so, he admitted, would result in the brachial plexus injury (Id.).

         Brachial Plexus Injury and Surgery

         When he was fully delivered, Steven's heart was not beating, and he was not breathing (Ex. 18, p. 3). At ten minutes, he was resuscitated with oxygen, endotracheal intubation, and chest compressions (Id.). He was transferred to Cardinal Glennon Children's Hospital Neonatal Intensive Care Unit in St. Louis, Missouri, where he remained until July 6, 2014.[7] (Ex. 40, p. 222; Ex. 5, p. 9).

         When he was one month old, Steven began treating at the Washington University in St. Louis Brachial Plexus Palsy Center with Dr. Michael J. Noetzel (Ex. 24; Ex. 35, pp. 1-2). Steven also began occupational and physical therapy at Children's Hospital in St. Louis (see Ex. 6, p. 121). Dr. Noetzel confirmed the diagnosis of brachial plexus injury, noting the flaccid paralysis, weakness, and lack of normal movement of the right arm- which had shown minimal improvement since birth (Ex. 35, pp. 1-2).

         The brachial plexus is a collection of nerves flowing out from the mid neck area of the spinal cord (Noetzel Depo, p. 10). Those nerves produce all the movement in the shoulder, arm, and hand (Id.). A brachial plexus injury of the type incurred by Steven is a mechanical, stretch injury (Id. at p. 11). During the injurious event, the nerves might be stretched and thinned out; ruptured-stretched and broken; or avulsed-tantamount to ripping an electric cord out from a wall socket (Id.).

         Given Steven's lack of improvement, good recovery of movement and strength in his right arm seemed less certain than might otherwise be expected in a baby with brachial plexus injury (Ex. 35, p. 2). After multiple follow-up visits and physical therapy with little improvement, Steven underwent an MRI of his cervical spine (Id. at p. 11). The MRI revealed that Steven's brachial plexus injury involved the avulsion of Steven's right C7 nerve root (Id.). In other words, his nerves had been torn away from his spinal cord (Noetzel Depo, pp. 13-14).

         Following the MRI, in March 2015, Steven underwent surgical exploration, repair, and grafting of his right-side brachial plexus nerves at St. Louis Children's Hospital (Ex. 26; Ex. 6). Without that surgical intervention, the persistent weakness in the deltoid, bicep, and tricep was not expected to improve (Ex. 26). In addition to the avulsion injury at ¶ 7, Steven was observed to have scar tissue involving nerve roots C5 - C7 resulting from the original stretching injury (Noetzel Depo, p. 29). The March 2015 surgery attempted to graft or bypass injured nerves in order to create a pathway for nerve regrowth (Id. at p. 30).

         At the time of trial, Steven was receiving occupational therapy approximately twenty-five minutes per week from OT assistants as part of special education intervention services at his pre-school (Doc. 51, p. 499). Clara Ellis, an occupational therapist for Williamson County Education Services (WCES), [8] testified live at trial on behalf of the United States. She evaluates Steven annually and sees him a few times per year (Id. at p. 497).[9] Her reports, made in conjunction with Steven's annual Individualized Education Program (“IEP”), focus on Steven's abilities in school (Doc. 51, pp. 482, 510). Steven is eligible for special education services because his injury limits his ability to otherwise benefit from or participate in the classroom (Id. at p. 482). Those services are only available until the time Steven turns twenty-two (Id. at p. 500).

         After the surgery, Steven continued follow-up examinations with his surgeon, Dr. Tae Park. At a visit on June 21, 2017, Dr. Park noted that Steven might continue to make musculoskeletal gains for the next two to three years (Ex. 25). The nerve re-growth only lasts for two to three years following surgery, then improvement plateaus (Noetzel Depo, pp. 34-35). As Dr. Noetzel testified in March 2019, Steven might get better; he won't be normal (Id. at p. 32).

         Expert Testimony

         Michael J. Noetzel, M.D.-Treating Physician (Plaintiff)

         Dr. Noetzel, one of Steven's treating physicians, testified by deposition. The Court reviewed Dr. Noetzel's video-taped deposition, as well as the written transcript.[10] Dr. Noetzel last examined Steven in June 2017 (Ex. 35, p. 18).

         Dr. Noetzel is the Medical Director of Clinical and Diagnostic Neuroscience Services at St. Louis Children's Hospital; Vice Chair of the Division of Pediatric and Developmental Neurology at Washington University School of Medicine; and Professor in the Department of Neurology and Pediatrics (Ex. 33, p. 1). He is board certified in Pediatrics, Neurology with special qualifications in Child Neurology and Neurorehabilitation (Id. at p. 6). He has published numerous peer-reviewed articles and textbook chapters, been on the editorial boards for the journals Neurology and Pediatric Neurology, been invited to give numerous professional lectures and presentations, and continues to provide direct clinical patient care (Id. at pp. 7-28). Dr. Noetzel has been practicing pediatric neurology for thirty-eight years (Noetzel Depo, p. 5).

         In addition to explaining his treatment and surgical follow-up of Steven, Dr. Noetzel gave his opinion on Steven's probable future limitations given his brachial plexus injury. Dr. Noetzel testified that Steven's injuries are permanent and explained that the neurological surgical intervention he underwent was designed to make him stronger, not normal. Once Steven's post-surgical improvement plateaus, he should at least be able to maintain the gains he has made thus far (Id. at p. 35). Because Steven will never have normal strength in his right arm, however, he is susceptible to tightness necessitating orthopedic follow-up care (Id.). The discrepancy between strength and function in the different muscles of his shoulder, arm, and hand will cause Steven problems for the foreseeable future. For example, while Steven has gained movement in internal shoulder rotation (marked four out of five), his external rotation remains weak (two out of five) (Id. at pp. 35-36). Dr. Noetzel testified that Steven will, to a reasonable degree of medical certainty, require further surgery from an orthopedist to address issues of tightening (Id. at p. 36). And Steven will require continued follow-up with physiatrists and therapists to address the ongoing challenges caused by his inability to use his right arm in a normal fashion (Id. at p. 38). In Dr. Noetzel's professional opinion, Steven will require those services for the rest of his life (Id.).

         According to Dr. Noetzel, Steven's brachial plexus injury will impede most physical activities and activities of daily living. For example, if Steven wants to scratch his head with his right hand, he will need to contort in an awkward way to do so, because he cannot bend his bicep up against gravity (Id. at p. 41). Feeding himself will be a two arm operation (Id. at pp. 41-42). Twisting door knobs will be problematic (Id. at p. 42). He might be able to type with “hunt and peck” proficiency, but will likely require a voice-activated keyboard system (Id. at p. 43).

         According to Dr. Noetzel, any task requiring two hands or requiring independent, normal function of the right arm will always be a challenge for Steven (Id. at p. 47). He will have to pick and choose which activities he can do, with adaptive “tricks” to compensate for the right arm (Id. at p. 48).

         Not only will Steven need to improvise with respect to how he uses his arms in order to perform certain tasks, his right arm will always be noticeably smaller and shorter than his left arm-particularly after he goes through puberty (Id. at p. 45). His injury permanently limits his ability to lift, hold, and carry objects with his right hand and arm (Id. at pp. 61-62). Steven's injury permanently limits ...

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