United States District Court, S.D. Illinois
YONG JUAN ZHAO, on behalf of her minor son, Steven Zhao, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
MEMORANDUM AND ORDER
J. ROSENSTENGEL CHIEF U.S. DISTRICT JUDGE
Juan “Maggie” Zhao filed this medical malpractice
action under the Federal Tort Claims Act (“FTCA”)
on behalf of her young son, Steven Zhao. 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.
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.
Court conducted a bench trial from April 9-10, 2019, and now
makes the following findings of fact and conclusions of law.
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).
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.).
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.
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).
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).
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.
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).
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).
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.
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
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.
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.).
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).
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.
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
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 (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 (Id.at 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).
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).
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).
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.).
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).
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.).
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.).
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).
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
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.
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
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
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).
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.
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.
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
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
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).
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
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).
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).
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 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).
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).
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).
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.
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).
weighed eleven pounds, six ounces and was 19.5 inches long
when he was born (Ex. 18, p. 2).
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).
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.).
Plexus Injury and Surgery
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,
40, p. 222; Ex. 5, p. 9).
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).
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.).
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).
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).
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),
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). 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).
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).
J. Noetzel, M.D.-Treating Physician (Plaintiff)
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. Dr. Noetzel last examined Steven in June
2017 (Ex. 35, p. 18).
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.
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
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).
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).
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 ...