Perez v. United States of America et al
Filing
115
FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER. Signed by Judge John A. Houston on 9/15/2020. (tcf)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
SOUTHERN DISTRICT OF CALIFORNIA
10
11
12
I. PEREZ, a minor, by and through his
Guardian ad Litem, Israel Perez; and
NORMA PEREZ,
13
14
15
Case No.: 16cv01911 JAH-MDD
FINDINGS OF FACT,
CONCLUSIONS OF LAW AND
ORDER
Plaintiff,
v.
UNITED STATES OF AMERICA, et. al.,
16
Defendant.
17
18
INTRODUCTION
19
20
I. Perez, a minor, through his Guardian ad Litem, Israel Perez, and Norma Perez
21
seek damages for injuries resulting from Defendant United States of America’s negligence
22
during I. Perez’s birth. Kenneth Sigelman and Andrew Chivinski appeared on behalf of
23
Plaintiffs and Stephen Terrell appeared on behalf of Defendant at trial.
24
After hearing testimony and argument of counsel at the trial, the matter was taken
25
under submission. The parties filed separate supplemental briefs following trial. Having
26
considered the testimony and argument presented by the parties at trial and the
27
supplemental briefs, this Court makes the following findings of fact and conclusions of
28
law:
1
16cv01911 JAH-MDD
1
2
FINDINGS OF FACT
1. On December 31, 2013, Norma Perez presented to Naval Hospital Camp Pendleton
3
4
(“NHCP”) at approximately 1:00 a.m. She was pregnant with I. Perez.
2. Norma Perez had previously delivered three children vaginally with no
5
complications.
6
3. While in triage at NHCP, Norma Perez was connected to the electronic fetal monitor
7
which monitors fetal heart rate (“FHR”) and a mother’s uterine activity. The purpose
8
of fetal monitoring during labor is to evaluate the adequacy of fetal oxygenation
9
during labor.
10
4. NHCP staff noted variable decelerations on the electronic fetal monitor while Norma
11
Perez was in triage.
12
5. A variable deceleration is an abrupt drop in FHR lasting more than 15 seconds but
13
less than 2 minutes. Variable decelerations are generally caused by umbilical cord
14
compression which cuts off oxygen to the baby. Severe variable decelerations for a
15
long period of time suggests the baby is at risk of suffering injury.
16
6. NHCP staff admitted Norma Perez to Labor and Delivery at 1:30 a.m. because of
17
the variable decelerations and notified the obstetrician. The obstetrician was advised
18
that Ms. Perez was admitted to the hospital after having arrived with deep variable
19
decelerations due to concerns for the possible need of a surgeon.
20
21
7.
The obstetrician performed duties as the consulting obstetrician on duty at NHCP
and did not have primary care responsibilities for Norma Perez.
22
8. NHCP staff developed a management plan that included IV bolus, position changes,
23
and oxygen. These are intrauterine resuscitative measures intended to increase
24
oxygenation to the baby and cause identified variable decelerations to return to
25
baseline.
26
9. In response to continuing variable decelerations between 1:30 a.m. and 2:36 a.m.
27
NHCP repositioned Norma Perez, administered an IV bolus, administered
28
2
16cv01911 JAH-MDD
1
Terbutaline to slow uterine contractions and called the obstetrician. The fetal
2
heartbeat temporarily returned to baseline at 2:42 a.m.
3
10. During cross-examination, a NHCP nursing staff’s attention was directed to an
4
exhibit (a fetal monitoring strip) relating to the 6-minute variable deceleration at
5
2:36 a.m. The witness’s verbal response and non-verbal demeanor – her unnerving
6
physical reaction to the evidence - clearly reflected the staff’s oversight of that
7
significant, prolonged variable deceleration episode in the management and
8
monitoring of the care for I. Perez and Norma Perez.
9
11. Expert witness Albert Phillips, M.D. identified the prolonged deceleration lasting
10
for six (6) minutes beginning at 2:36 a.m. and additional variable decelerations that
11
were not timely addressed by the staff, as having a significant negative impact on
12
the health and well-being of I. Perez.
13
12. Based upon the expert testimony and all the evidence in the case, it is reasonable
14
to conclude that the events in paragraphs 10 and 11 were significant, defining
15
moments in I. Perez’s care, or lack of care, and a substantial cause or factor resulting
16
in I. Perez’s injury.
17
13. At 2:46 a.m., the obstetrician arrived at the beside of Norma Perez, examined her
18
and noted severe to moderate variables that returned to baseline. Notwithstanding
19
her knowledge that Norma Perez arrived at the hospital with variable decelerations,
20
the obstetrician noted a plan to anticipate vaginal delivery unless indication for
21
cesarean delivery occurs.
22
14. Recurrent variable decelerations resumed around 3:10 a.m. followed by another
23
prolonged variable deceleration. No action was taken in response to the prolonged
24
deceleration.
25
15. Additional variable decelerations occurred between 3:40 a.m. and 3:50 a.m. which
26
NHCP staff considered a Category II with the fetal monitor strip moving towards a
27
Category III. Labor and Delivery nurses are trained to contact a provider if they
28
believe a strip is transitioning from Category II to Category III as such movement is
3
16cv01911 JAH-MDD
1
indicative of cesarean section delivery.
2
approximately 4:00 a.m.
3
4
The obstetrician was notified at
16. A severe variable deceleration occurred at 4:05 a.m. In response, NHCP staff
repositioned Norma Perez and administered IV fluid bolus.
5
17. The obstetrician was called at 4:15 a.m. and arrived at 4:17 a.m. the obstetrician
6
attempted a practice push and tried resuscitation measures including administering
7
Terbutaline and performing an amnioinfusion at 4:26 a.m.
8
18. A cesarean section was ordered as soon as Norma Perez consented to a cesarean
9
section at approximately 4:32 a.m. Norma Perez was moved to the operating room
10
at 4:42 a.m. The cesarean section was performed at 4:57 a.m. and I. Perez was
11
delivered at 5:01 a.m.
12
19. An Apgar scale scoring examination was administered on I. Perez at birth. An
13
Apgar examination is a ten-point scale scoring system that is used as a predictor of
14
life or death and the risk of brain injury in newborns. Up to two points are given for
15
each of 5 parameters including heart rate, vigor, cry and tone. The Apgar score range
16
for a normal healthy baby is 8 to 10. At birth, I. Perez was given an Apgar score of
17
1 at 1 minute, 4 at 5 minutes and 4 at 10 minutes.
18
20. I. Perez was transferred to Naval Medical Center San Diego shortly after birth. He
19
was diagnosed with hypoxic ischemic encephalopathy which is a result of perinatal
20
asphyxiation, He remained hospitalized for 6 weeks.
21
21. Norma Perez delivered a healthy child after the birth of I. Perez.
22
22. I. Perez suffers from cerebral palsy, spastic quadriplegia, seizures, cognitive
23
impairment and visual impairment.
24
incapable, of independently performing any activities of daily living, working or
25
living on his own. Because of his brain injury, I. Perez will never graduate from
26
mainstream schools, read books, play sports, obtain employment, pray, get married,
27
or raise a family. He is unlikely to walk unassisted or experience a meaningful
28
conversation with another person. He will be visually impaired his entire life. I.
He is incapable, and will continue to be
4
16cv01911 JAH-MDD
1
Perez has established that he will be completely dependent upon third-party care for
2
the remainder of his life.
3
23. As I. Perez’s physical size and mental condition change with age, the ability of
4
Norma Perez to manage all of I. Perez’s non-medical needs and challenges will
5
decrease. Additionally, I. Perez’s medical needs will need the attention of a skilled
6
medical provider having at a minimum a Licensed Vocational Nurse (“LVN”)
7
credential.
8
24. Israel Perez, I. Perez’s father, received a GED, an associate degree, and a bachelor’s
9
degree in criminal justice, which he earned while on active duty in the United States
10
Marine Corps. After his retirement, Israel Perez received a master’s degree in
11
Humanities. At the time of trial, Israel Perez was registered to begin a program at
12
California State University, Dominguez Hills to receive a community college
13
teaching credential.
14
25. Norma Perez graduated from high school, received vocational training, became a
15
Certified Nurse Assistant, and obtained certification as a Medical Assistant. Her
16
goal before giving birth to I. Perez was to return to school, graduate from college,
17
and become a Registered Nurse (“RN”), and eventually, a Nurse Practitioner.
18
26. I. Perez has a half-sister who is an outstanding high school student and aspires to
19
attend Harvard and become a lawyer. I. Perez has a half-brother who attends College
20
of the Sequoias.
21
27. Children typically equal or exceed the educational attainments of their parents.
22
28. The educational accomplishments of I. Perez’s siblings strongly suggest I. Perez
23
would also equal or exceed the educational attainments of his parents.
24
29. I. Perez requires care at the LVN level because he requires skilled nursing care to
25
position him quickly and carefully upon onset of a seizure to avoid
26
choking/aspiration. He takes seizure medication which can only be administered by
27
a nurse-level LVN or RN, and he must be fed by way of G-tube feedings.
28
5
16cv01911 JAH-MDD
1
30. Public school has resulted in numerous problems for I. Perez, including: (1)
2
frequent changes in the nurse assigned to him, which disrupts continuity of care; (2)
3
inability to properly feed I. Perez; and (3) placing I. Perez in a stander and/or
4
supportive walker without his shoes, resulting in skin lesions on his toes. I. Perez
5
has established he reasonably requires private school placement.
6
7
8
9
CONCLUSIONS OF LAW
NEGLIGENCE
1. California law applies in this action brought under the Federal Tort Claims Act.
10
2. To establish negligence under California law, Plaintiffs must prove, by a
11
preponderance of the evidence (1) Defendant was negligent, (2) Plaintiffs were
12
harmed, and (3) Defendant’s negligence was a substantial factor in causing
13
Plaintiffs’ harm.
14
3. A medical service provider must exercise the level of skill, knowledge and care in
15
diagnosis and treatment that other reasonably careful medical service providers
16
would use in similar circumstances. The level of skill, knowledge and care used by
17
reasonably careful medical service providers is determined by expert witness
18
testimony.
19
20
21
22
4. Causation must be proven within a reasonable medical probability based upon the
expert testimony.
5. A substantial factor is more than a remote or trivial factor that a reasonable person
would believe contributed to the harm.
23
6. The NHCP medical service providers fell below the standard of care when they
24
failed to call for, advocate, recommend or perform an urgent cesarean section
25
beginning at around 2:45 a.m. and continuing until 4:32 a.m. when the cesarean
26
section was ordered.
27
28
6
16cv01911 JAH-MDD
1
7. A prolonged deceleration lasting for six (6) minutes beginning at 2:36 a.m. was a
2
crucial pivotal period requiring urgent action and was a substantial factor
3
contributing to the harm.
4
8. I. Perez suffered a hypoxic ischemic brain injury at birth as a result of the care
5
provided by NHCP
6
9. The NHCP medical service providers’ negligence in failing to call for, advocate,
7
recommend or perform an urgent cesarean section prior to 4:15 a.m. was a
8
substantial factor causing Plaintiff’s injury.
9
10. Norma Perez suffered serious emotional distress as a result of the events of the
10
11
labor and delivery.
11. The NHCP medical service providers’ negligence was a substantial factor causing
12
13
Norma Perez’s injury.
DAMAGES
14
12. To recover damages for past medical expenses, Plaintiff must prove the reasonable
15
cost of reasonably necessary medical care that he received. Plaintiff presented no
16
evidence of damages for past medical expenses.
17
13. To recover damages for future medical expenses, Plaintiff must prove the
18
reasonable cost of reasonably necessary medical care that he is reasonably certain to
19
need in the future.
20
14. Plaintiffs prove I. Perez should receive reasonably necessary medical care not
21
covered by Tricare in a manner that does not otherwise enhance the damages award
22
findings as provided for herein.
23
15. Plaintiffs have proven damages for future medical care as detailed herein.
24
16.
Except as otherwise provided for herein, expert witness Carol Hyland’s
25
recommendations (including calculations) for damages relating to medical services,
26
medical supplies and medical equipment, education, housing and care, housing
27
modifications and mobility equipment are adopted and found to be reasonably
28
necessary for the ongoing, medical and attendant care of I. Perez.
7
16cv01911 JAH-MDD
1
17. In light of I. Perez’s extraordinary medical needs and past experiences in public
2
school settings, I. Perez has established that private school education is reasonably
3
necessary at an annual costs of $52,920.00 from age 5 to age 6, an annual cost of
4
$53,119.60 from age 6 to age 12, and an annual cost of $53,319.20 from age 12 to
5
age 22.
6
18. The educational service need set forth in Carol Hyland’s life care plan of a sheltered
7
workshop or day activity program is reasonably necessary for I. Perez from ages 22
8
through 35 at a cost in an amount up to $85 per day for 6 hours a day for 48 weeks
9
per year.
10
19. LVN attendant care is reasonably necessary for I. Perez from ages 3 through 35 at
11
$42.67 per hour for 16 hours a day until age 18 and for 24 hours a day until age 35.
12
I. Perez has not established by a preponderance of the evidence that LVN attendant
13
care at home is reasonably necessary after age 35.
14
15
20. Facility care is reasonably necessary for I. Perez from age 35 to lifetime at $247.22
per day or $90,297.11 per year.
16
21. Chore services are reasonably necessary for I. Perez from ages 3 through 35,
17
including: housekeeping at $121.5 per week or $6,318 per year; meal preparation
18
and shopping for groceries at $23.80 per hour at 10 hours per week or $12,376.00
19
per year; yard services at $109.17 per month or $1,310.04 per year; and handyman
20
services at $56.67 per hour or $1,360.08 per year.
21
22
22. Housing modifications are reasonably necessary for I. Perez. The reasonable cost
of these modifications is $100,000.
23
23. A modified van every 8 years is reasonably necessary for I. Perez and reasonably
24
certain to be required over his lifetime. The initial purchase of a van plus conversion
25
or the purchase of a converted van shall be without contribution from the family or
26
household in an amount up to $75,000. After the purchase of the initial van, the
27
purchase of a standard van by the family is to be converted for I. Perez’s
28
8
16cv01911 JAH-MDD
1
transportation needs at an annual and annualized costs of $8,540 per year and annual
2
maintenance cost of $1,347.27.
3
24. I. Perez’s life expectancy is estimated at age 58.5 years.
4
25. Plaintiffs’ expert’s method for determining the net discount rate for medical and
5
care costs is reasonable. The proper rates for calculating present cash value are minus
6
0.9 and 0.7.
7
26. To recover damages for loss of the ability to earn money as a result of his injury,
8
Plaintiff must prove it is reasonably certain that the injury he sustained will cause
9
him to earn less money in the future than he otherwise would have earned and the
10
11
12
13
14
15
16
reasonable value of the loss to him.
27.
I. Perez proved by a preponderance of the evidence that, in the absence of his
brain injury, he would likely have obtained a master’s degree.
28. The expert testimony supports a net discount rate for calculating I. Perez’s loss of
future earning capacity of 0.4%.
29. The future/gross value of I. Perez’s loss of future earning capacity is $22,711,543.
The present value of I. Perez’s loss of future earning capacity is $3,553,205.
17
30. To recover for future physical pain, mental suffering, loss of enjoyment of life,
18
disfigurement, physical impairment, inconvenience, grief, anxiety, humiliation, and
19
emotional distress, I. Perez must prove that he is reasonably certain to suffer that
20
harm. I. Perez has met his burden. This amount of non-economic damages should
21
not be further reduced to present cash value because the reduction should only be
22
performed with respect to economic damages.
23
31. I. Perez’s non-economic damages are substantial.
24
32. However, under California law, which applies in this FTCA action, non-economic
25
26
27
damages in medical malpractice cases are capped at $250,000.
33. I. Perez’s past and future noneconomic damages exceeds the statutory cap of
$250,000.
28
9
16cv01911 JAH-MDD
1
34. Norma Perez has spent a substantial amount of time providing extraordinary care
2
to I. Perez since his birth as a result of his disabilities. The extraordinary care she
3
provided and continues to provide includes: (1) giving medication for seizures twice
4
per day and as needed if breakthrough seizures occur; (2) monitoring I. Perez on an
5
ongoing basis to determine indicators or symptoms suggesting the onset of seizures;
6
(3) continuing diaper changes after age 3; (4) total bathing assistance; (5) performing
7
range of motion exercises with I. Perez throughout the day; (6) providing total
8
assistance for I. Perez in all of his transfers approximately 10 times per day; (7)
9
suctioning I. Perez from 5 to12 times per day; (8) total dressing assistance; (9)
10
repositioning I. Perez in his chair approximately 10 times per day to avoid pressure
11
ulcers; (10) carrying I. Perez; (11) performing special oral/dental care five times per
12
day or more; (12) transporting I. Perez to therapy appointments approximately 2 to
13
4 times per week; (13) transporting I. Perez to and from doctor appointments and
14
emergency room visits; (14) preparing meals by blending dietary foods and feeding
15
I. Perez multiple times a day until I. Perez was switched to G-tube in 2018; and (15)
16
preparing for and administering G-tube feedings which take one hour or more per
17
feeding.
18
35. Due to I. Perez’s disabilities, the extraordinary care that will continue to be required
19
includes: (1) 5 hours per week over the first year of life; (2) 8-10 hours per week
20
during the second year of life; (3) 20 hours per week from age 3 to the date of
21
judgment.
22
36. I. Perez has proved that he is entitled to recover the reasonable value of
23
extraordinary care provided by his mother from birth through the date of judgment
24
based on a rate of $40 per hour.
25
37. I. Perez’s damages shall be offset by $116,000 for past social security payments.
26
38. To recover for future mental suffering, loss of enjoyment of life, grief, anxiety,
27
humiliation, and emotional mistress, Norma Perez must prove that she is reasonably
28
certain to suffer that harm. Normal Perez has met her burden. This amount of
10
16cv01911 JAH-MDD
1
noneconomic damages should not be further reduced to present cash value because
2
that reduction should only be performed with respect to economic damages.
3
4
39. Under California law, Normal Perez’s non-economic damages are also capped at
$250,000.
5
40. Norma Perez’s noneconomic damages exceeds the statutory cap of $250,000.
6
41. Defendant invokes California’s periodic payment statute, California Civil
7
Procedure Code section 667.7. Section 667.7, reads, in relevant part:
8
(a) In any action for injury or damages against a provider of health care services, a
superior court shall, at the request of either party, enter a judgment ordering that
money damages or its equivalent for future damages of the judgment creditor be paid
in whole or in part by periodic payments rather than by a lump-sum payment if the
award equals or exceeds fifty thousand dollars ($50,000) in future damages. In
entering a judgment ordering the payment of future damages by periodic payments,
the court shall make a specific finding as to the dollar amount of periodic payments
which will compensate the judgment creditor for such future damages. As a
condition to authorizing periodic payments of future damages, the court shall require
the judgment debtor who is not adequately insured to post security adequate to assure
full payment of such damages awarded by the judgment. Upon termination of
periodic payments of future damages, the court shall order the return of this security,
or so much as remains, to the judgment debtor.
9
10
11
12
13
14
15
16
17
ORDER
18
19
20
21
22
23
24
25
26
Based on the foregoing, IT IS HEREBY ORDERED Plaintiffs are awarded the
following damages:
Non-Economic
1.
I. Perez
$250,000
2.
Norma Perez
$250,000
Economic
1.
Loss of Future Earning Capacity
2.
Extraordinary Care by Parent to be calculated based on a rate of $40 per hour
from birth through the date of judgment.
27
28
$3,437,205
3.
Future Medical and Care Costs to be calculated based up the amounts above.
11
16cv01911 JAH-MDD
1
4.
2
IT IS FURTHER ORDERED the parties shall meet and confer on the issue of the
3
payment of future damages by periodic payments and the schedule for such payments so
4
as to assist the court in making final, specific findings as to the dollar amount of periodic
5
payments which will compensate the judgment creditor. The parties shall file a joint
6
stipulation on all damage calculations agreed upon, or file briefs of no more than ten (10)
7
pages as to matters where there is no agreement. The stipulation or pleadings shall contain
8
gross amounts and present value amounts awarded, future payments and a payment
9
schedule based upon the findings contained herein, and a method of up-front payment of
10
the full amount of attorney fees based upon a reduction of the amount of periodic payments
11
only on or before October 13, 2020.
Offset for Social Security Payments
-$116,000
12
IT IS FURTHER ORDERED that damages allocated to Plaintiff’s medical services
13
from ages 3 through 18, medical supplies from ages 3 through 18, medical equipment from
14
ages 3 through 18, the initial van purchase, the award for pre-judgment extraordinary care
15
provided by Norma Perez and extraordinary non-economic damages suffered by Norma
16
Perez shall not be subject to the up-front offset for payment of attorney’s fees.
17
This order relating to payment of attorney fees approximates, as close as practicable,
18
the intent of the California legislature and the balancing of that intent against the
19
extraordinary care required by Plaintiff I. Perez to age 18 and his extraordinary non-
20
economic damages and the extraordinary care provided by Norma Perez and the
21
extraordinary non-economic damages suffered by Norma Perez.
22
DATED: September 15, 2020
23
24
25
_________________________________
JOHN A. HOUSTON
United States District Judge
26
27
28
12
16cv01911 JAH-MDD
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?