Dixon et al v. UNITED STATES OF AMERICA et al
Amended VERDICT and ORDER following non-jury trial. Signed by Judge Robert N. Scola, Jr. on 4/28/2017. (jle)
United States District Court
Southern District of Florida
Marla Dixon and Earl ReeseThornton, Sr., individually and as
parents and natural guardians of
Earl Reese-Thornton, Jr., Plaintiffs
United States of America,
) Civil Action No. 15-23502-Civ-Scola
Amended Verdict and Order Following Non-Jury Trial
The Plaintiffs bring this action under the Federal Tort Claims Act
(“FTCA”), 28 U.S.C. §§ 2671, et seq., and Florida law, alleging that doctors at a
federally supported health center committed medical malpractice during the
birth of Marla Dixon’s and Earl Reese-Thornton, Sr.’s son, Earl Jr. The
Amended Complaint (ECF No. 34) alleges that, on December 2, 2013, Plaintiff
Marla Dixon went into labor and was admitted to North Shore Medical Center
(“North Shore”). Dr. Ata Atogho, an employee of the Jesse Trice Community
Health Center (“Jessie Trice”), was the delivering doctor. Dixon’s pregnancy had
not been diagnosed as high risk. However, during labor the baby’s heart rate
decelerated. The United States alleges that Dr. Atogho advised Dixon to
undergo a caesarean section (“C-section”), but Dixon refused. The Plaintiffs
allege that Dixon requested a C-section several times, and that Dr. Atogho
refused, telling her to “keep pushing.” Dixon ultimately delivered Earl Jr.
vaginally after Dr. Atogho used a “Kiwi” vacuum three times during the
delivery. The vaginal delivery caused Earl Jr. to have irreversible brain damage.
Count One of the Complaint asserts an FTCA claim against the United
States for the medical negligence of Dr. Atogho. Count Two asserts an FTCA
claim against the United States for the vicarious liability of Jessie Trice for Dr.
Atogho’s negligence. Plaintiffs seek the following damages for Earl Jr.: past and
future pain and suffering; loss of capacity for the enjoyment of life; permanent
and total disability; loss of capacity to earn money or be gainfully employed in
the future; past and future disfigurement and scarring; past and future mental
anguish; past economic damages, including medical expenses; future medical
expenses; and supportive, palliative, rehabilitative, nursing care and treatment
for the rest of his life. Plaintiffs Dixon and Thornton, Sr. seek past and future
non-economic damages, including but not limited to, mental pain and
suffering; and past and future loss of filial consortium.
Both parties filed motions for summary judgment. The Court granted
summary judgment on the limited factual issue that the vaginal birth of Earl
Jr. led to his injuries, but did not grant summary judgment with respect to the
issue of legal causation. (Order on Cross Mtns. for Summ. J., ECF No. 110.)
The Court also granted summary judgment on the factual issue that Dixon was
a Medicaid recipient at the time of Earl Jr.’s birth. (Id.) The issues remaining to
be determined are: (1) the standard of care that Dr. Atogho owed to the
Plaintiffs; (2) whether Dr. Atogho breached the applicable standard of care; (3)
if Dr. Atogho breached the standard of care, whether the breach proximately
caused Earl Jr.’s injuries; (4) whether any party or non-party caused or
contributed to Earl Jr.’s injuries; (5) the amount of damages, if any, due
Plaintiffs; and (6) whether any damages should be reduced, limited, or set-off
pursuant to Florida Statute Sections 766.118 and 768.
On March 9, 10, 14 and 20, 2017, the Court held a non-jury trial.
Prior to the trial, the parties submitted their pretrial stipulations (ECF Nos.
106, 107), as well as their proposed findings of fact and conclusions of law
(ECF Nos. 112, 114.) The Court has carefully reviewed these submissions. After
considering the credible testimony and evidence, and the applicable law, the
Court finds that Dr. Atogho breached the standard of care by not offering a Csection to Dixon and such breach caused the injuries to Earl Jr. As a result,
the Court finds in favor of the Plaintiffs on Counts One and Two of the
Complaint. The Court awards the Plaintiffs a total of $33,813,495.91.
1. Summary of the Testimony
Irene Dixon (by videotaped deposition taken May 25, 2016)
After obtaining consent from the parties during the Calendar Call on
February 28, 2017, the Court watched the videotaped deposition of Irene Dixon
in chambers on March 2, 2017.
Irene is 57 years old and has resided in Jacksonville, Florida for the past
47 years. She has never been to Miami. She is the mother of Marla Dixon,
having adopted her at the age of eight. Irene has been diagnosed with memory
problems and is taking Aricept.
Marla has two brothers: Derrick Dixon and Darrell Dixon. Marla lived
with Irene until Marla graduated from high school. After she graduated from
high school, Marla moved to Miami. Once Marla was in Miami, Irene had
contact with her two years later when Marla called to say she was pregnant
and on the way to the hospital to have a boy and everything was fine. After the
baby was born, Marla called again and said she had a boy named Earl. A day
or two after the birth, Marla called again to say the doctor and nurse told her
the baby had brain damage. Approximately two weeks after the birth, she
learned about a law suit. In December 2013, Irene’s son Darrel Dixon lived
Irene saw the baby when he was brought to a hospital in Jacksonville by
Marla. She visited the baby in the hospital. Marla has three children: Earl Jr.,
Serinity, and a third child whose name she cannot pronounce. Irene speaks to
Marla by phone every couple of weeks. Irene has a good relationship with Earl
Reese-Thornton, Sr. but does not see or speak to him very often.
Dr. Richard S. Boyer (by deposition transcript)
With the parties’ agreement, the Court reviewed the deposition testimony
of Dr. Boyer taken on September 21, 2016.
Dr. Boyer is licensed to practice medicine in Utah. He received his M.D.
at the University of Utah and is board-certified by the American Board of
Radiology and Diagnostic Radiology. He holds certificates of added qualification
in neuroradiology and pediatric radiology and currently limits his practice to
pediatric radiology. Dr. Boyer has given over a hundred depositions and has
consulted for cases in Florida but has never testified in Florida.
Dr. Boyer disagrees with two findings or observations reflected in Dr.
Sze’s report. They both agree that Earl Jr. suffered a hypoxic ischemic injury
but Dr. Sze described the pattern of injury as a mixed type “with elements of
both the acute profound pattern and the partial prolonged pattern.” Dr. Boyer
does not use the term “partial prolonged.” Dr. Boyer refers to this as a total
cortical pattern and in parentheses, near total brain pattern. The distinction
between the two doctors is more in the nomenclature.
There are a couple of issues of timing where Dr. Boyer does not
completely agree with Dr. Sze. Under the heading “Timing of Injury,”
subheading “Ultrasound,” Dr. Sze wrote, “Abnormalities are generally detected
after approximately 24 hours and demonstrated better in the subsequent 24
hours.” Dr. Boyer believes we can see abnormalities on ultrasound earlier than
24 hours and he uses the window of 12 to 24 hours for when abnormalities
may be seen on ultrasound after a hypoxic ischemic brain injury. Dr. Boyer
has reviewed hundreds of ultrasounds of neonates within the first 24 to 48
Dr. Sze also writes that he would have thought that Earl Jr.’s ventricles
would have opened by 24 hours, and the fact that they did not means that
there may have been cerebral edema from injury and that it generally takes two
days for that to happen. So, Dr. Sze is pushing the time when the injury
occurred prior to labor and Dr. Boyer disagrees with that. Dr. Boyer believes
that the literature establishes that it takes two to three days for this
phenomenon of reopening to occur; it’s a normal phenomenon for the small
ventricles to open up after the baby is born. Dr. Boyer believes the ventricles
follow that pattern so he disagrees with Dr. Sze. Dr. Boyer believes there are
objective criteria upon which to base the timing of the injury based upon the
openness of the ventricles in a neonate. Marvin Nelson wrote a paper in
Pediatric Radiology in 2003 and there was a supportive paper in 2010.
During the birthing process, as the baby is head-down in the womb and
the uterus contracts, it squeezes the baby’s head and it tends to squeeze fluid
out of the ventricles, which are fluid spaces inside the brain and squeezes out
fluid spaces around the brain. As the baby goes through the birth canal, that
process occurs, and so it is like wringing out a sponge, and it’s a normal
phenomenon. From Dr. Nelson’s paper, when they looked at over 100
ultrasounds in the first 24 hours of life, about 80 percent of babies had small
ventricles. It’s over the next 2 to 3 days that the ventricles will open up to
normal size so the fluid re-accumulates in the brain and around the ventricles,
and that’s a normal phenomenon.
That may or may not be affected by an ischemic event. Many hypoxic
ischemic injuries to the brain are very discrete in terms of the parts of the
brain that are injured and it’s not a sufficient enough portion of the brain to
affect the ventricular size. So, some people make the mistake in trying to make
that jump. You have to know what parts of the brain were affected and how
In some cases of hypoxic ischemic injury, less commonly in neonates and
more commonly in older children and adults, there’s a fairly predictable curve
or process of swelling of the brain which begins to be recognizable between
about 24 and 48 hours. It lasts for a maximum of between 48 and 72 hours
and then wanes and gets back to its normal size by the end of five to seven
days. That is the classic edema course.
Babies don’t usually follow that for a couple of reasons. First, there is the
superimposed reopening phenomenon. Second, babies have more fluid in and
around their brains than older children and adults do. Third, is that babies
have open sutures, which are quite pliable. Sutures are the joints between the
calvarial plates, and that is what allows a baby to get through the birth canal
without shattering its skull. A baby’s head is much more pliable than an older
child or adult’s head, and they accommodate for swelling that way. That classic
edema curve typically does not occur; it is unusual to see it in a neonate. Even
a few months later that classic curve may occur, but not in a neonate.
Hypothetically, there might be some cases in which the time that it takes
for the ventricles to reopen would provide some indication as to the timing of
the hypoxic ischemic injury.
Dr. Boyer agrees with Dr. Sze that the imaging demonstrates
abnormalities of hypoxic ischemic injury and they both saw the same injury.
Dr. Boyer also agrees with Dr. Sze that the hypoxic ischemic event occurred at
or near the time of labor and delivery. However, Dr. Boyer disagrees with Dr.
Sze’s opinion that the ventricles are slightly discrepant.
Dr. Boyer states that Dr. Sze’s opinion is misleading because it is based
upon two different events having occurred. Dr. Boyer believes there were not
two events but a continuum or progression of things going from bad to worse
and that caused these kinds of injuries to the brain.
There is a timeline for the manifestations of the injury and Dr. Boyer
gave some parameters for that timeline. Looking at the injury to the deep grey
matter structures, what Dr. Sze calls the profound pattern, if that were the
only injury we know it takes a minimum of 10 to 12 minutes in fetal lambs and
primates and maybe a little longer, perhaps up to 15 minutes, in humans to
begin seeing that pattern of injury. The deep grey matter manifestations would
take humans approximately 15 minutes of oxygen deprivation to begin to
In those animals, if you have completely cut off the blood supply to the
brain and don’t restore it for 30 minutes or so the animal cannot be
resuscitated and will not survive. That is the shortest window. So we know
there was deprivation of blood flow to the brain for at least 10 to 15 minutes.
We also know from clinical experience that if there is a less complete
interruption of blood flow, that different parts of the brain are damaged and
that is what Dr. Sze called partial prolonged and, because it’s a cumulative
process of energy deletion, it’s not a complete interruption of blood flow, it will
take longer. Based on Dr. Boyer’s experience and the literature, he opines that
it takes a minimum of 30 to 60 minutes for that to occur. So, it is possible that
part of the brain injury could have occurred over a period of an hour or more,
possibly even a few hours, but it doesn’t require a lot of hours for that to occur.
Everything we see here could have happened in the last hour leading up to
birth and we always have to include the resuscitation until we restore
circulation to the brain and oxygen and glucose delivery.
Other experts who look at fetal heart tracings and so forth can tell us
when this baby was in trouble. As long as it is in the imaging window, all of the
injury to this child likely occurred within 60, or at the most 90, minutes before
he was born or until he was adequately resuscitated.
If an MRI were used, you would see the evidence of the hypoxic ischemic
injury within minutes to an hour but we don’t have that luxury in this case.
With an ultrasound, we can start to see those changes within 12 to 24 hours
depending on how extensive the injury is. In this case, a lot of the brain was
damaged and that’s why we see the deep grey matter manifestations on the
second ultrasound taken approximately 24 hours after the birth. The first
ultrasound, taken five hours after the birth, was normal. Dr. Boyer opines that
the event which caused the damage occurred sometime between 7 to 19 hours
before the birth.
It is possible, but unlikely, that the manifestation on the deep grey
matter is a result of two different insults. The following are causes of oxygen
deprivation resulting in the deep grey matter manifestation: placental
abruption, a complete knot in the cord, maternal cardiac arrest and amniotic
fluid embolization. But none of those are cited in the record here. So, the most
plausible cause here is that it was the process of laboring and the contraction
of the uterus and the bradycardia that the baby was suffering in response to
that. The baby’s heart was perfusing the baby’s brain and so every time the
heart slows, there was less perfusion and if the oxygen level was dropping at
the same time, then perfusion that was getting there was less helpful to the
brain. Every cell of the brain is a little factory that needs oxygen and glucose to
survive and, like a fighter in the ring, every time you get knocked down, they
get up more slowly until they can’t.
The best explanation of what happened was progressive energy depletion
in the parts of the brain that are most energy-dependent and as that
progressed, those parts of the brain were recruited and suffered and eventually
died. Dr. Boyer’s specialty is not the specific causes at issue; he simply looked
at the result of what happened.
By correlating the clinical observations, Dr. Boyer was able to be more
precise in his opinion as to the timing. The first ultrasound was normal after 5
hours of age. By 12 or at most 24 hours, it was going to be abnormal after
insult. So, the injury would have occurred 7 to 19 hours before the birth, based
only on the ultrasound results. With clinical observations from the time of
birth, the baby had low Apgar scores, acidosis, cyanotic, depressed, floppy and
apneic. That tells Dr. Boyer the child was in acute distress at the time he was
born which was when he was most at risk. The minutes immediately after the
birth until the child was resuscitated are the most likely causes of this child’s
brain injury. The child was dying at the time of birth and it takes time to
reverse the process: restore circulation to get the heart pumping with adequate
frequency to push the blood and oxygenate the brain. Even at 10 minutes the
Apgar on the child was still a 6. Dr. Boyer does not have a standard of care
opinion on how his resuscitation was managed.
Dr. Boyer concluded the child’s cortex and subcortical white matter is
virtually gone and permanent meaning the child will not have higher functions,
i.e. speech, language, motor control and activity, vision, hearing, memory,
judgment, intelligence, personality, etc. When there is a reduction in perfusion
to the brain, the brain redirects blood flow to the deep grey matter structures,
the brainstem, cerebellum because those are critical for life support functions
but it does so at the expense of the more peripheral parts of the brain.
There are two possibilities for how this injury occurred: the first is that
this all happened very acutely and there was virtually no blood flow, which
damaged the deep parts of the brain and then spread peripherally and
damaged some of the outside of the brain. However, the imaging does not
support that quite as much because the part of the brain that is more damaged
is the more peripheral part with some preservation of the deep parts, which
suggests it happened differently. If there was some blood flow getting through,
the brain would have redirected that centrally to preserve those structures. It
looks like the child was able to do that at the expense of the outer part of the
brain, the cortex, because the cortex is what is most damaged here.
The Miami Children’s Hospital report lists a subgaleal hemorrhage
resolved December 3, 2013. The ganglia is a tough fibrous band that is
underneath the scalp and it is loosely applied in babies and quite vascular and
it is not uncommon to bleed under the galea. So there is some hemorrhage that
is outside the skull under the scalp.
The brain MRI report on December 6, 2013 shows moderate subgaleal
fluid, scalp edema and no cephalohematoma. This tells us there was a
mechanical stress to the baby’s head in getting born. It’s more common if you
apply vacuum extraction and even more common if you use forceps.
Dr. Boyer’s readings of the film are consistent with other experts’
opinions that the assault began at about 14:00 on December 2, 2013 and
continued until 5 minutes after delivery. The child was born at 15:21 so there
is a window of approximately 90 minutes and Dr. Boyer’s findings are
consistent with that.
Dr. Gordon Sze (by deposition transcript)
With the parties’ agreement, the Court reviewed the deposition testimony
of Dr. Sze taken on September 23, 2016.
Dr. Sze currently works at Yale University and is board-certified in
radiology and has a certificate of added qualification in neuroradiology. Dr. Sze
earns $200 - $250,000 per year doing medicolegal work. Dr. Sze was retained
by the United States for his expertise in neuroradiology. Dr. Sze created a
report dated August 17, 2016 after reviewing the medical records, ultrasounds
and films of the child, as well as Marla Dixon’s records and films. Dr. Sze also
reviewed the report of Dr. Boyer.
Dr. Sze’s ultimate opinion is that within a reasonable degree of medical
certainty, the imaging examinations of the child demonstrate abnormalities of
hypoxic ischemic injury of the mixed pattern with elements of both the acute
profound pattern and the partial prolonged pattern. Hypoxia occurs when there
is not enough oxygen and ischemia occurs when there is not enough blood
flow. Hypoxic ischemic injury basically boils down to the brain not getting
enough oxygenated blood. That could be due either to the child not getting
enough blood flow or to the blood flowing fine but not having enough oxygen in
it. From a radiological point of view, it cannot be determined from looking at
films whether an injury resulted from hypoxia or ischemia.
Partial prolonged type injury is where the fetal brain gets some
oxygenated blood but not quite enough. This usually takes half an hour to an
hour or more to occur. With this type of injury the peripheral portions of the
brain tend to be affected, especially the watershed regions.
Acute profound type injury is where the baby has a catastrophic lack of
oxygenated blood reaching the brain and, because it’s catastrophic, it really
takes a very short amount of time to cause the damage, and the length of time
that this occurs cannot be very prolonged or the fetus will die. It is said that 15
to 20 minutes is a good time period but the outer margin may be 10 to 30
minutes. This type of injury tends to affect the central portions of the brain,
especially the basal ganglia and thalami.
It is possible for the fetus or infant to have a partial prolonged type injury
and then have a catastrophic problem at the end. There are multiple variations
of these types of injuries. One variation could be if you don’t have quite enough
oxygen going for a long period of time, you will eventually get all the areas of
the brain involved, including the central portions which are generally spared as
the brain attempts to shunt blood towards the center. However, if it goes long
enough, you could certainly get the entire brain involved. A second variation
could be to sustain a partial prolonged injury earlier on and then have the
situation resolve to some extent and then have a catastrophe at the end. There
are multiple possibilities.
Dr. Sze does not know what happened in this child’s case. Dr. Sze opines
that the abnormalities disclosed on the imaging examinations are generally
consistent with a hypoxic ischemic event having occurred at or near the time of
labor and delivery, although some evidence is slightly discrepant.
Based upon the initial ultrasound and going back 24 to 48 hours, that
equates to 19 to 43 hours prior to birth, approximately. Since the first
ultrasound showed a normal brain, and it often takes 24 hours or more to see
something on the ultrasound, then you go back 24 hours from December 2,
2013 and end up on the evening of December 1, 2013. Ultrasound is not a good
tool for looking for hypoxic ischemic injury.
The second ultrasound taken approximately 24 hours after birth shows
an abnormal brain so this is consistent with an injury occurring near 15:00 the
day before. Dr. Sze agrees that the window when the injury occurred was from
the evening of November 30 through the delivery at 15:21 on December 2,
2013. Dr. Sze did not do any type of clinical correlation to determine when the
injury occurred within that window. However, Dr. Sze agrees with Dr. Atogho
that if he had performed a C-section on Marla Dixon at or before 14:15 on
December 2, 2013, more likely than not Earl Jr.’s brain injury could have been
Dr. Sze reviewed the ultrasound taken on December 5, 2013. The only
thing useful in that ultrasound is looking at the mass effect. The ventricles are
larger than in the December 3, 2013 ultrasound. Since mass effect is maximal
at three days and as the ultrasound showed maximal mass effect as of
December 3, 2013, if you count back three days, it brings you to November 30,
2013. A normal baby’s ventricles expand in a day or two, roughly. In this case,
Dr. Sze cannot say if the ventricles were small because of mass effect or normal
Dr. Sze also reviewed the MRI scan of December 6, 2013. The MRI
shows restricted diffusion which occurs in cases of, among other things,
hypoxic ischemic injury. The restricted diffusion here is in the entire brain
above the tentorium. This MRI is consistent with his opinion that the hypoxic
injury window was from November 30, 2013 through delivery on December 2,
2013 at 15:21. The MRI shows significant, permanent, irreversible brain
damage. Most of the supratentorial brain is damaged. A child with this type of
damage would experience cerebral palsy that is significant and developmental
delay that is significant, among other things. Dr. Sze also reviewed CT’s from
November 2015 and a December 2016 MRI. Basically, the majority of the brain
is destroyed except for the internal part of the brain that keeps people
breathing and allows them to swallow.
In a neonate, increased mass effect and swelling can be seen after
approximately one day following a hypoxic ischemic injury. If the hypoxic
ischemic injury had occurred at labor and delivery, one would expect the
greatest mass effect as shown by compression of the ventricle to be seen on the
December 5, 2013 ultrasound or the December 6, 2013 MRI. Since this is not
the case, one could hypothesize that the maximum edema is present on the
ultrasound of December 3, 2013. This would correlate with a hypoxic ischemic
event on November 30, 2013 or December 1, 2013. However, this is the only
evidence that suggests a hypoxic ischemic injury that definitely predates labor
and delivery while all the other evidence supports an event that included labor
and delivery. Furthermore, some of the evidence excludes an event significantly
prior to labor and delivery – things like the ultrasound being negative initially.
If labor began on the morning of December 2, 2013, that is the more accurate
window of the hypoxic injury (from time of labor through delivery).
There are cephalohematomas outside the brain which are consistent with
a Kiwi suction device. But that injury, or the blood loss associated with it,
would not have caused brain injury.
Dr. Sze agrees with Dr. Boyer as far as the images and doesn’t really
disagree as far as other conclusions. If experts for the plaintiff opine that the
hypoxic injury occurred between 14:00 and 15:21 on the day of birth, that time
period would fall within Dr. Sze’s window. If the lack of blood started at 14:00
and continued through delivery and even several minutes after delivery, that
would be consistent with Dr. Sze’s opinion on the window of when the injury
occurred. Dr. Sze believes the injuries to the child were caused from a
combination of a partial prolonged and acute profound injury.
Dr. Ata Atogho
Dr. Atogho is from Cameroon and came to Washington in 1995. He
graduated from Howard University and Howard University Medical School. Dr.
Atogho now works for Metro-Miami Obstetrics and Gynecology (“OB/GYN”). He
is board certified in obstetrics and gynecology. After his residency, he came to
Miami and worked for Tenet Health. After a couple of years, Tenet decided to
close its facilities. Dr. Shiner recommended he work for Jessie Trice, a facility
that serves underserved and undocumented populations. He signed his first
contract with Jessie Trice in 2012, which called for him to deliver babies.
Currently, he is an associate professor at Florida International University, Ross
University and the American University of the Caribbean.
Jessie Trice had three facilities but only two were very productive. Dr.
Atogho had no responsibility to see patients at Jessie Trice’s clinic; patients at
the clinic were attended to by mid-wives and nursing assistants. His
responsibility for patients began when they were ready to deliver and went to
the hospital. At that time, Dr. Atogho would be notified. Every time a patient
was brought to or came to the hospital, Dr. Atogho would be notified and would
go to the hospital. Some days, he would deliver 3 or 4 babies and some days
none. Prior to Marla Dixon’s delivery, he had delivered approximately 2,000
babies. Dr. Atogho is familiar with the standards of the American College of
Obstetrics and Gynecology (ACOG).
Dr. Atogho worked at his office two days per week from 9:00 a.m. to 5:00
p.m. seeing patients. His office was 10 minutes away from North Shore. His
home was in Miami Lakes and was 15 to 20 minutes away from North Shore.
Dr. Atogho had privileges at North Shore beginning in 2008 and was delivering
his own patients there. When Dr. Atogho began working at North Shore, he
received and reviewed the North Shore policies and procedures. He no longer
delivers babies at North Shore; now, he delivers at Jackson North and
Memorial in Miramar.
Dr. Atogho was the on-call physician at Jessie Trice for Marla Dixon on
December 2, 2013. At 2:45 he began treating Dixon. He does not recall seeing
her on previous occasions. Dr. Atogho is aware Dixon signed a consent form for
possible surgical delivery.
At 04:07, Dr. Atogho did a telephone order for Pitocin which increases
contractions. Uterine contractions can restrict the flow of blood to the fetus.
Dr. Atogho ordered a low dosage that was to be administered if Dixon’s
contractions slowed down. The order required nurse Yolande Ashman McCray
to stop Pitocin if there was evidence of fetal distress. At 13:33 nurse McCray
stopped Pitocin due to deceleration of the heartbeat. The fetal heart strip
indicated fetal distress.
The first time Dr. Atogho was at Dixon’s bedside was sometime after
noon on December 2, 2013, but before 13:49. There was another patient about
whom Dr. Atogho was called, and he usually sees all of his patients when he
comes to the hospital. However, during his deposition in April 2016, Dr. Atogho
said he had no recollection of being at Dixon’s bedside before 13:49. Today, he
has a better recollection of when he arrived at Dixon’s bedside because he
reviewed Sara Fuentes’s records, which indicated that he was called to the
hospital to see Fuentes at 12:10. Since he was in the hospital to see Fuentes,
his normal practice would be to see all of his patients when he arrived.
Therefore, he believes that he must have seen Dixon.
Dr. Atogho received a call at 13:33 to come to Dixon’s room. If he was
already in the hospital, he could have arrived in the room well before 13:49. Dr.
Atogho ordered restarting of Pitocin. According to the chart, Pitocin was
restarted at 13:50. It is unlikely that within one minute of his arrival Pitocin
would have been restarted, which is why Dr. Atogho believes he was at Dixon’s
bedside before 13:49.
Upon arrival at Dixon’s bedside, Dr. Atogho was the captain of the ship.
He was at Dixon’s bedside at 13:49. The mother was complete and ready to be
delivered at 13:33. Dr. Atogho claims that he probably advised Dixon before
13:49 that she needed to have C-section. However, in his deposition he testified
that he was at Dixon’s bedside at 13:49 and advised her to have a C-section.
He further testified that he had no recollection of having that conversation
earlier, and that there would have been no reason to have that conversation
The child had a category 3 fetal heart rate from 13:25 to 13:49. A
category 3 fetal heart rate means the heart rate has poor variability and
deceleration. A category 3 fetal heart rate is abnormal, indicates fetal distress,
indicates that the baby is not getting enough blood and oxygen, and places the
baby at risk for brain damage or death. The cause of the fetal distress could
have been the Pitocin, dehydration or the fact that the baby was taking too long
to be delivered.
Dr. Atogho did not document the fact that the baby had a category 3
heart rate at 13:49. From 13:49 to 15:21 he did not document that the baby
had any complications, but he does not document every action he takes during
a delivery. He did not advise nurse McCray that the baby was in distress, nor
did he tell her Dixon had refused a C-section. From 13:49 to 15:20 he was also
following Fuentes’s delivery. He never called for backup to care for Fuentes in
spite of the fact that Dixon’s fetus exhibited a category 3 heart rate.
After determining the fetal heart rate was category 3 at 13:49 and prior
to using the Kiwi for the first time at 14:00, Dr. Atogho administered Pitocin. It
is not uncommon that when the physician comes in, the Pitocin is restarted by
the nurse without the doctor saying anything. However, it is usually restarted
at half the rate at which it was stopped. Dr. Atogho does not recall at what rate
Pitocin was restarted in this case. It is not uncommon to start and stop the
Pitocin thereafter but Dr. Atogho can’t say if it was stopped and started in this
Dr. Atogho claims he told Dixon sometime between 13:33 and 14:00 that
she needed to have a C-section or her baby would suffer brain damage or die.
He does not recall everything that was said but the gist of it was that she did
not want a C-section, she wanted a vaginal delivery. Dr. Atogho acknowledged
that it is possible he did not ask Dixon why she did not want a C-section. Dr.
Atogho claims Dixon refused the C-section on multiple occasions between
13:49 and 15:21. He did not ask any other staff members to explain the need
for a C-section to her.
It’s a huge deal when a mother refuses a C-section when the baby has a
category 3 heart rate. It’s important to find out the reason why the mother is
refusing but more important from the mother’s perspective, not his. Dr. Atogho
is familiar with the publications of ACOG including practice bulletins and
committee opinions. According to ACOG 664, when a pregnant patient refuses
a recommended medical treatment, the physician should carefully document
the refusal in a medical record. Dr. Atogho acknowledged that it is important
for the physician to document a mother’s refusal of a C-section, but in this
case it was not documented because he was too busy providing care to Dixon.
The documentation can be done at another time.
The only place in the entire medical chart setting forth Dixon’s refusal of
a C-section is one note in the progress notes, which states, “Declined c/s.” This
note was created maybe one to two hours after the birth. There is no note
concerning Dr. Atogho offering Dixon a C-section. In hindsight, Dr. Atogho
admits that he should have written two to three pages about his conversation
with Dixon and her boyfriend about the C-section. Dr. Atogho admits that he
probably didn’t put enough information or that he needed more “beef” to the
statement in the medical chart that Dixon declined the C-section.
Dixon’s refusal to have a C-section could have adversely affected the
child’s health. The North Shore Chain of Command Policy requires the
attending physician to consult with the nurse in charge concerning any issue
which could adversely affect a patient’s health. According to Dr. Atogho,
McCray was there at all times and would have heard Dixon’s refusal to have a
C-section. The North Shore policy requires an attending physician to notify the
department director and chief nursing officer concerning any issue that could
adversely affect a patient’s health. Dr. Atogho did not notify either of those
individuals and admits this failure may have violated the policy of North Shore.
Dr. Atogho did not order any type of preparations for a C-section in the
event Dixon changed her mind, but that is not usually what is done.
From 13:27 the heart rate was tachycardic – above 160. A common side
effect of Pitocin is a category 2 or 3 heart tracing. According to ACOG, Pitocin
should be reduced or stopped if there is a category 2 or 3 tracing. Dr. Atogho
does not believe he violated this recommendation. When he came into the
room, the nurse had stopped the Pitocin, had started oxygen, had given IV
fluids and had moved the patient around, all of which were appropriate. But,
once the mother refused a C-section, the baby had to be delivered. Therefore,
the only alternative was to give the uterus a little help to expel the baby.
The label for Pitocin states “discontinue the infusion of Pitocin
immediately in the event of … fetal distress.” Dr. Atogho agrees that a category
3 heart rate indicates fetal distress. However, another part of the label allows
doctors to use Pitocin in their discretion after weighing the potential benefits
against the possible harm.
Dr. Atogho does not recall stopping the Pitocin but it is possible it was
stopped at some point. Usually it is turned on and off several times during
labor. There is no documentation that Pitocin was stopped after 15:00.
Dixon was in an emergent condition and needed a C-section from 13:49 to
15:21. Dr. Atogho disputes the documentation that he used the Kiwi from
14:00 to 14:05 because he does not usually use the Kiwi for that long. The Kiwi
can be used when the baby is at zero or plus 1 stations. He has previously
testified in a deposition in another case that the Kiwi can only be used at plus
2 station, at least. Once the Kiwi was unsuccessful three times, a C-section
should have been conducted. But it was not done in this case because the
patient refused the C-section.
He agrees the baby was in category 3 fetal heart condition from 14:00 to 15:21.
Between 14:05 and 14:45 Dixon had oxygen and IV fluids going. From 13:49 to
the delivery, Dr. Atogho never documented that the baby was in any sort of
trouble. On that day, Dr. Atogho knew that there was some probability, but he
can’t say if it was high or low, that the baby would have a problem. However, in
his deposition he testified that there was a high probability there would be a
Dr. Atogho went back and forth between Fuentes’s room and Dixon’s
room. Dr. Atogho was on his phone with his stockbroker for 8 minutes. He
could have used that time to further document his conversation with Dixon
concerning her refusal to have a C-section. Dr. Atogho does not believe his
phone call to his financial advisor from 14:25 to 14:32 would have interfered
with his ability to treat either Fuentes or Dixon.
The Fuentes baby was delivered at 15:08 and the placenta was delivered
at 15:10. Dr. Atogho left Dixon to attend to Fuentes. It typically takes 10 to 15
minutes after the delivery to clean up. If the placenta was delivered at 15:10
and he had a baby next door in distress, he would not have cleaned up the
baby and could have returned to Dixon by 15:11. At 16:00, Dr. Atogho
returned to Fuentes to do a repair after Dixon’s baby was delivered.
Dr. Atogho received $350.00 for each baby delivered, but if he had called
for a backup doctor to deliver Fuentes’s baby, he would not have received the
$350.00 for the Fuentes delivery.
Dr. Atogho believes that there was a woman in her mid-50’s in the room
with Dixon. Dr. Atogho believes she was Dixon’s mother. Dr. Atogho believes
the woman told Dixon several times to have the C-section. It was a tense
situation. Her boyfriend was telling her the same thing. Dixon was cussing
When the baby was delivered at 15:21 the baby had a low Apgar score.
The neonatal intensive care unit was called but Dr. Atogho did not make the
call. It is up to the nurse to call. Usually when the Kiwi is used, the neonatal
intensive care unit is called.
Dr. Atogho did not tell the NICU personnel that Dixon had refused a Csection. There would have been no need to tell them since that would not affect
their treatment of the baby. Dr. Atogho’s discharge sheet does not contain any
notes that Dixon refused a C-section.
Dr. Atogho cannot specifically recall the nurse leaving the room but in 90
minutes he believes she must have left the room.
Dr. Atogho is aware that there is a refusal of medical treatment form to
be filled out whenever a patient refuses a C-section but that form was not used
in this case. Later that day, near midnight, he performed a C-section on
another patient. There is no reason, other than the patient’s refusal, that he
would not have performed a C-section on Dixon.
The manifested pain to the mother at the time of crowning is significant
and can last anywhere from 20 seconds to a minute. The tendency is to either
give up and not push so that you don’t feel the pain, or push through the pain
to get it over with. It is common for women to say something like “just cut me.”
He does not recall Dixon saying that but it is possible she could have said that.
Once the baby’s head is crowning, you cannot do the C-section anymore.
You would be putting the mother’s life at risk since you would have to push the
baby back inside the womb. In this case, sometime around 14:30 it would have
been too late to do the C-section. In his deposition, he testified that the Csection was on the table up until the time of the delivery.
McCray is a nurse/manager at Memorial Regional. She previously
worked as a staff nurse at North Shore until December 2016. She has been a
nurse since 2005. Since 2008, she has assisted in the delivery of an average of
3 babies per day.
On December 2, 2013, she was the labor and delivery nurse assisting Dr.
Atogho with Marla Dixon’s delivery. Prior to testifying, she reviewed Dixon’s
records and has a recollection of the events. From 07:00 until the delivery of
the child at 15:21, she was the nurse in charge of the Dixon case. Pitocin was
started at 09:46 at the low end dosage of 2. The level of Pitocin was gradually
increased to 10 by 11:26, when she called Dr. Atogho. It remained at 10 until
the Pitocin was turned off at 13:30 because the baby had a deceleration of the
She notified Dr. Atogho at 13:33 of the deceleration of the heart
rate. Dixon was “complete” at 13:33 and McCray would not have left the room
from that time until the delivery of the child. Dixon pushed for approximately
90 minutes. There are many things that can skew the baby’s heart rate while
the mother is pushing. The heart rate remained in the 150 to 190 range with a
baseline of 170.
The chart indicates that Dr. Atogho was at Dixon’s bedside at 13:49.
That was the first time he was at Dixon’s bedside. Had he been there earlier,
she would have noted that.
Pitocin was restarted at 13:50. Although it is not documented, McCray
believes she would have restarted the Pitocin at level 10. The Pitocin would
have continued until the baby was delivered. After the baby is delivered the
Pitocin is continued wide open until the uterus returns to the normal position.
Because the patient was complete, McCray would not have left the room
between the doctor’s arrival and the delivery. At no time while McCray was
attending Dixon did Dr. Atogho offer Dixon a C-section. Dixon said, “just cut
me. I want to be cut. I can’t do this anymore.” The father of the child was
present in the room but no other persons were present.
If Dixon had refused a C-section, McCray would have documented the
refusal by using a Refusal of Treatment form. No such form was used in this
case because nothing was ever offered that Dixon refused. McCray would have
also faxed the Refusal of Treatment form to the risk manager.
McCray saw the doctor’s progress notes indicating, “refused c/s.” McCray
asked Atogho why he wrote that when they really didn’t offer her a C-section
and he said, “it’s the first baby and it was right there.” McCray knows that note
is a lie. In January 2014, she met with representatives of Tenet Health and told
them that Dixon did not refuse a C-section. This was prior to the
commencement of any litigation.
McCray believes the hospital has a rule that the Kiwi cannot be applied
more than three times. The Kiwi was applied at 14:00 and popped off at 14:05.
When the mother has a contraction and pushes, the doctor pulls on the Kiwi to
assist in the delivery. McCray did not find it unusual for Dr. Atogho to leave the
room after the Kiwi popped off. The patient was not actively delivering. Dr.
Atogho would return to the room when the baby was coming out.
The second Kiwi was applied at 14:45 and the third Kiwi was applied at
14:50. McCray assisted Dr. Atogho on approximately 10 other deliveries and he
used the Kiwi 4 to 5 times. Not all of those occasions were emergency
The nurse is responsible for charting the events during the course of the
delivery, and the doctor is responsible for charting the outcome of the delivery
and if there were any interventions.
Although NICU is supposed to be called when a Kiwi is applied, they are
not called until the birth is imminent so they are not just hanging around and
not being used.
Earl Reese-Thornton, Sr.
Reese-Thornton, Sr. grew up in Miami and graduated high school in
Miami. He played football in high school. He attended Fortis Technical School,
but did not finish his studies there. He later received an HVAC certificate and
worked in that field for a while. He later worked at Marshalls and now works at
CNS wholesale groceries. Reese-Thornton, Sr. now lives alone in North Miami.
He does not have any hobbies because he has to be on call for his son.
Reese-Thornton, Sr. met Marla Dixon on MySpace and later met her in
person and dated her. They dated for a year and a half before Earl Jr. was
born. Dixon lived on campus at Job Corps where she was trying to get a
medical administrator nursing degree. At one point they started living together
while she was working at Job Corps and he was working at Marshalls. They
lived together for 4 months before Dixon got pregnant. It was a planned
pregnancy and he was excited she was pregnant.
Reese-Thornton, Sr. went to the doctors’ appointments with Dixon during
her pregnancy. None of the doctors said there was a problem with the
pregnancy. Dixon was skeptical about being a parent and did research to learn
more about pregnancy and births. They watched videos of vaginal and Csection births.
On December 2, 2013 at 1:00 or 1:10, Dixon woke Reese-Thornton, Sr.
up and said her water had broken. Reese-Thornton, Sr. got dressed quickly
and they left about 10 minutes later. They arrived at the hospital 10 to 15
minutes after that, at approximately 1:30. Reese-Thornton, Sr. drove his car to
the hospital with Dixon and his mom. His mom came with them so she could
take Reese-Thornton, Sr.’s car to take Reese-Thornton, Sr.’s sister to work. His
mom did not go into the hospital.
When they arrived at the hospital and told them Dixon was in labor, they
were sent to the delivery room area. Dixon was admitted and Reese-Thornton,
Sr. stayed with her for a while. They put a fetal monitor strip on Dixon and
gave her an IV. Reese-Thornton, Sr. stayed with Dixon for an hour or two and
then decided to go home and get some rest until it was closer to the delivery of
the baby. Reese-Thornton, Sr. doesn’t do too well at hospitals, and he and
Dixon had previously agreed that he would drop her off at the hospital and
come back when the baby was ready to be delivered.
Reese-Thornton, Sr. returned to the hospital a little before 1:30 p.m. and
went straight to Dixon’s room. Two student nurses and a head nurse were
present. The doctor was not present. The head nurse never left the room from
the time Reese-Thornton, Sr. arrived until after the delivery.
Dr. Atogho came to the room about 10 to 15 minutes after ReeseThornton, Sr. arrived. Dixon said “cut me” to Dr. Atogho. Dr. Atogho did not
say anything and placed the suction machine on the baby’s head. The suction
cup popped off three times while Reese-Thornton, Sr. was there. Dixon was
pushing and screaming “cut me, cut me.” Reese-Thornton, Sr. was encouraging
Dixon to push.
Reese-Thornton, Sr. never heard Dr. Atogho offer Dixon a C-section. Dr.
Atogho never said the baby was in danger. Dr. Atogho never said the baby
would be born with brain damage or death without a C-section.
After the suction cup came off the first time, the doctor left the room for
35 to 40 minutes. When Dr. Atogho returned to the room, he tried the suction
cup again. Dr. Atogho never told Thornton a C-section was necessary or the
baby would suffer brain damage or death. In fact, Dr. Atogho never said there
was any problem with Earl Jr.
After the suction cup came off the second time, Dr. Atogho put it back
on. Dixon again asked the doctor to “cut her.” Dr. Atogho told her to keep
pushing. Dr. Atogho left the room and came back 10 to 15 minutes later. Once
again, Dr. Atogho never told Reese-Thornton, Sr. a C-section was necessary or
the baby would suffer brain damage or death. In fact, Dr. Atogho never said
there was any problem with Earl Jr.
Dr. Atogho used the suction cup a third time without success. Dixon said
“cut me” and said her back hurt and she felt a burning. Dr. Atogho told her to
keep pushing. Dr. Atogho left a third time and Dixon kept pushing and the
baby was delivered when the doctor was not in the room. The nurse caught the
baby. Dr. Atogho returned to the room 5 minutes later and cut the umbilical
cord. The baby came out facing down, he was blue, his tongue was sticking out
and Thornton saw a lot of feces on him. The baby had swelling on the left side
of his brain. A group of people came into the room and tried to revive the baby
and were successful. They were in the room 10 – 15 minutes.
After the baby was born, Reese-Thornton, Sr. asked Dr. Atogho if they
were going to reshape the baby’s head. Reese-Thornton, Sr. could not hear his
response because there was too much noise. When the baby was in NICU,
Reese-Thornton, Sr. asked Dr. Atogho if the baby was going to be alright and
he said, “yeah.”
The next day, December 3, 2013, the baby was taken to Miami Children’s
Hospital. Reese-Thornton, Sr. rode in the ambulance with the baby. ReeseThornton, Sr. never told any doctor at Miami Children’s Hospital that Dixon
had refused a C-section. Reese-Thornton, Sr. never told Dr. Jayakar or any
other doctors that Dixon had refused a C-section.
The baby was at Miami-Children’s for a month. Reese-Thornton, Sr.
learned from doctors at Miami Children’s that the baby had severe brain
damage due to lack of oxygen to the brain at birth. Dixon was released from
North Shore after 3 days. When Earl Jr. was released from the hospital they all
stayed at Reese-Thornton, Sr.’s mom’s house. The baby had seizures, was
always crying and was in pain. Thornton felt sad because all his plans for his
child would not work out: fishing, bicycle riding, double dates.
Reese-Thornton, Sr. had to learn how to clean Earl Jr.’s D tube, give him
CPR, clean his tray, clean his G tube, change his diaper, bathe him and feed
him. The G tube is a way to feed the baby directly to his stomach and the entry
site has to be cleaned. Reese-Thornton, Sr. also has to make sure no bubbles
get into Earl Jr.’s stomach. Earl Jr. has a tracheotomy to help him breathe,
which Reese-Thornton, Sr. has to clean 24/7. Earl Jr. has a long list of
medicines he takes. Reese-Thornton, Sr. is nervous when he is around Earl Jr.
because he might make a mistake and end up causing the death of Earl Jr.
Earl Jr. is three year old and drools all day long and they have to
constantly suction him. Earl Jr. can do nothing; he doesn’t move. He can’t
follow, can’t point, can’t crawl or roll over. Reese-Thornton, Sr. cannot take
Earl Jr. to the park or the beach because anything might trigger a seizure.
To date in 2017, Earl Jr. has been in the hospital 6 times. At the time of
the trial, he was in the hospital with pneumonia. Reese-Thornton, Sr. no longer
lives with the child but spends two to three days per week for several hours per
visit taking care of Earl Jr.
Dr. Martin Gubernick
Dr. Gubernick went to Bucknell University and Northwestern Medical
School. He performed his residency at Cornell University in 1986. He has been
a board-certified OB/GYN since 1987 and has done approximately 3,000
Dr. Gubernick’s opinions are based upon the knowledge, skill and care
ordinarily used by a reasonably careful obstetrician under the same or similar
conditions. All of his opinions are within a reasonable degree of medical
probability unless specified otherwise.
Dr. Gubernick has no issue with the care provided by Dr. Atogho to
Dixon prior to December 2, 2013 at 13:50. At 13:25 the fetal heart rate pattern
decelerated to 80 beats per minutes. This is very typical of a hypoxic event. At
13:30 the nurse turned off the Pitocin. Every time the uterus contracts, it
diminishes blood to the baby, and you don’t want to restrict the vessels that
are supplying the blood to the baby. Stopping Pitocin was within the standard
At 13:33 the nurse called the doctor. The nurse also did an examination
of the mother and determined the mother was fully dilated and complete, and
entering the second stage of labor. At 13:49, 16 minutes after the phone call,
the doctor arrived at Dixon’s bedside.
Category 1 is a normal tracing for fetal heart beats. Category 3 is an
ominous tracing – the most ominous of all tracings. Dr. Atogho determined the
baby had a category 3 tracing. Dr. Gubernick believes the tracing was closer to
category 2 at this time, but that is still of concern and one would not restart
Pitocin with a category 2 tracing.
At 13:50, the Pitocin was restarted. Dr. Gubernick opined that the
restarting of Pitocin is just about the last thing you want to do in that
situation. If anything, you want to give an agent that stops contractions. It was
absolutely below the standard of care for the doctor to restart the Pitocin at
13:50, regardless of whether the tracing was a category 2 or a category 3. From
13:50 to 14:00 the tracing became worse due to the use of the Pitocin.
By increasing fluids to the mother you increase blood flow to the baby.
By giving oxygen to the mother, you are increasing blood flow to the baby. By
tilting the mother on her side, you are relieving pressure.
The baby was in an occiput posterior (“OP”) position - looking up at the
sky - which is backwards and makes it much more difficult to place the Kiwi.
Only 5% of babies are occiput posterior. Only 3% of all deliveries use a Kiwi
device so using a Kiwi device on an OP baby is rarer still. The most effective
way to deliver an OP baby that is at plus 1 or plus 2 stations is to use forceps.
Forceps are still used but are going out of use by younger generations of
Any OB/GYN could have predicted that the Kiwi would not have worked
because the baby was OP, at plus 1 or plus 2 stations, and the mother was a
19-year old giving birth to her first baby.
By 14:00, there was a non-reassuring fetal heart rate with a category 2
tracing. With a 19-year old mother having her first child in OP position and the
doctor believing it was a category 3 tracing, the standard of care would have
been to do a C-section. Even with a category 2 tracing, the doctor should have
stopped the Pitocin and that probably would have resolved the issues.
From 14:29 to 14:37 the baby was tachycardic; there had been two failed
vacuum attempts and the Pitocin is still running. The baby was not recovering;
inadequate resuscitation maneuvers were being done. The baby was subjected
to consistent hypoxia. You can’t beat the baby up for that long and not have a
A doctor should not let a patient go from a category 1 to a category 3
tracing without taking immediate action. No doctor should perceive these
problems and let the problem persist. If a doctor believes that there is a
category 3 tracing, he has an obligation to make the case to the mother and
constantly stress to the mother the possibility of death or serious harm to the
baby. You never stop making your argument. If the mother does not listen, the
doctor should have a nurse, a female OB/GYN, or an administrator speak to
It is important for the doctor to know the reason why the mother does
not want to have the C-section. Even if the doctor doesn’t document at the
time, if a patient refuses a C-section, the doctor should have extensive notes
about all the efforts he made to convince the patient.
Although doctors often deliver more than one baby at a time, when you
have a baby in distress like in this case, you should get a back up to take over
the other delivery.
At 14:45, Dr. Atogho returned to the room and applied the vacuum
again. The baby was still hypoxic. There were no accelerations in the heart
rate, the beat variability was minimal, there was fetal tachycardia and there
were recurrent decelerations. The baby remained at least in category 2 and was
very close to a category 3.
From 15:00 to 15:21 there was a third attempt with the vacuum; there
was still some deceleration and the baby was in trouble. The problem was that
the baby had been in trouble for over an hour and twenty minutes at this
point. If the baby had been delivered by C-section at 15:05 or before, within a
reasonable degree of medical probability the baby would not have suffered
At delivery, the baby had Apgar scores of 2, 3 and 6 at 1, 5 and 10
minutes and a core PH of 7, was extremely floppy and needed aggressive
resuscitation. This was a catastrophic event.
There was no indication that Dr. Atogho reached out to another
Dr. Enme Corrales-Reyes
Dr. Corrales-Reyes is a physician trained in pediatrics in NYC and did
his residency in neurology at Vanderbilt.
On December 2, 2013, Dr. Corrales-Reyes began treating Earl Jr. He
determined the child had hypoxic ischemic encephalopathy. Dr. Corrales-Reyes
treated the child through January 2014. The mother indicated that she had not
refused a C-section. Dr. Jayakar’s records indicate that the father had told her
that the mother had refused a C-section. Such a note would not be common.
When Dr. Corrales-Reyes treated the child, he had gross motor, fine
motor, speech and social development delays. The brain was experiencing
atrophy and the child was experiencing bilateral cortical thumbing. The child
was also experiencing seizures.
Factors that could impact Earl Jr.’s life-expectancy are respiratory
problems, feeding problems and neurological problems, including seizures. But
statistically 87-90% of the time these types of patients can live up to 30 years.
Dr. Paul Kornberg
Dr. Kornberg is an M.D. specializing in physical medicine, particularly pediatric
rehabilitation in Tampa. Dr. Kornberg graduated from the University of
California, Berkeley and then University of Miami Medical School. Thereafter,
he completed a 5-year residency at Baylor in pediatrics and physical medicine
and rehabilitation, and is board certified in physical medicine and
rehabilitation. Dr. Kornberg sees patients similar to Earl Jr. on a regular basis.
His focus is on function – either improving the child’s activities or training the
family on their ability to care for the child.
Earl Jr.’s medical diagnoses are: severe birth-related spastic seizure
disorder, profound global developmental delay, spasticity, visual impairment,
feeding problems with a history of dysphasia, severe gastric esophageal reflux
disease, neuromuscular scoliosis, constipation, sleep apnea, and asthma. The
child underwent numerous operative procedures including a tracheotomy and
gastrostomy tube placement.
The child is profoundly developmentally delayed. At almost two and a
half years, he had not achieved the milestones one would expect of a four
month old. The child’s scoliosis can cause functional impairment to breathing
and heart function and often requires corrective surgery. The child has
profound disability and will require round-the-clock care from a variety of
gastroenterologist, neurologists, orthopedic surgery, X-rays, MRI’s, CT’s and
EEG’s, bracing to prevent deformity and many other services.
Dr. Kornberg opines the child has a life expectancy of an additional 47.5
years. It is not uncommon for a person with Earl Jr.’s conditions to live 30 to
40 years, and he has treated similar patients who are in their 50’s. The child’s
more significant motor impairment could negatively affect life expectancy. The
child is also at high risk for aspirational pneumonia. He has been hospitalized
several times for upper respiratory infections. Dr. Kornberg’s life expectancy
opinion assumes there would be appropriate support and care of the child.
Prior to moving with a child with the conditions of Earl, Jr., a parent
should make arrangements for medical care in advance of moving. However, it
is not uncommon for parents to move with the child and then look for
caretakers. It would be better for the child to use medical transport for any
travels of over 100 miles.
Medical records indicate that at one point the mother was called and
asked about the child’s medications and she did not know the medications.
Medical records indicate that on another occasion the mother was called and
asked about the child’s medication and the mother hung up the phone. Several
other medical records indicate the mother did not come in when she was asked
to do so and staff could not locate her on other occasions. Other records reflect
referrals to the Department of Children and Families because the mother was
not complying with doctors’ instructions.
Padron is a Certified Public Accountant with a B.A. in accounting and an
M.S. in finance; he is a licensed stockbroker, certified financial planner and
certified valuation analyst. Padron was retained by the Plaintiffs’ attorneys. He
reviewed the life plan prepared by Ira Morris which had various costs,
frequencies and durations, and he applied financial techniques to project those
costs, frequencies and durations into the future. He then reduced those future
amounts to present money value.
Padron prepared two different options because Morris used two different
earning capacities: one based on two years of college and one based on a high
Future lost earning capacity is $2,491,062 for Option 1 and $3,191,792
for Option 2. Future medical costs will be $38,589,086. The projected economic
loss is $41,080,148 for Option 1 or $41, 780,878 for Option 2. The present
value of lost earning capacity is $822,430 for Option 1 or $922,537 for Option
2. The present value of future medical costs is 20,812,546.
The total present value of projected economic loss is $21,634,976 for
Option 1 or $21,735,083 for Option 2. Padron reduced the numbers by
$13,000 based upon some corrections by Morris, which reduced the total
present value of projected economic loss to $21,621,976 for Option 1, or
$21,722,083 for Option 2. Interest rates have gone up since the time of his
report, which would further reduce the total present value of projected
economic loss to $19,153,352 for Option 1 and $19,265,093 for Option 2.
Padron is hired 80 percent of the time by plaintiffs and 20 percent of the
time by defendants, but he testifies about 90 percent of the time for plaintiffs.
Dixon was born in Jacksonville and lived with her adopted mother and
her two brothers. Dixon attended high school in Jacksonville but did not
graduate. She decided to go to Job Corps in Homestead. Job Corps has a
college-like campus and she studied to be a medical administrative assistant.
Dixon moved to Homestead in 2011 and lived on the Job Corps campus. She
finished Job Corps with a high school degree and obtained her certificate.
While at Job Corps, she worked as an intern at a hospice facility. When she
finished Job Corps, she worked for a temp agency called Empire. At one point
she worked concessions at the Sony Open tennis tournament.
Dixon currently lives in Miami Gardens. She has three children: Earl Jr.,
Serenity and Elijah. The two younger children are perfectly healthy.
Dixon met Reese-Thornton, Sr. on MySpace while she was at Job Corps.
They eventually started living together at Reese-Thornton, Sr.’s mother’s house
in Liberty City. They dated a year and a half before she got pregnant. They
wanted to have a child together.
Dixon went to Jessie Trice for prenatal care because that was the only
facility that took her insurance. Reese-Thornton, Sr. accompanied her to all the
appointments. They knew it was going to be a boy and she was happy because
she always wanted a boy first so he could protect his younger sister. There
were no complications during the pregnancy. Dixon went to North Shore
Hospital prior to her delivery but does not remember how many times. Dixon
was nervous about the pain during birth because she does not like pain. She
watched videos on YouTube about vaginal deliveries and C-sections.
On December 2, 2013, Dixon was sleeping and thought she had wet the
bed but realized her water had broken. She woke up Reese-Thornton, Sr. and
went to the hospital. It was around 1:00 or 1:30. Reese-Thornton, Sr.’s mother
went with them because she wanted to use Reese-Thornton, Sr.’s car while
they were at the hospital. Reese-Thornton, Sr.’s mother did not go into the
Dixon believes that they arrived at North Shore around 2:00. The
security guard took them from the emergency room to the labor/delivery area
upstairs, and she was given a room directly across from the nurses’ station.
They hooked her up to the fetal monitor strip, gave her an IV and gave
her medications. She does not recall which medications. Reese-Thornton, Sr.
left around one and a half hours later, around 3:15. Reese-Thornton, Sr.’s
mother picked up Reese-Thornton, Sr. They had previously agreed that ReeseThornton, Sr. would accompany her and stay for a while but would leave
because he did not like hospitals. They agreed that she would let him know
when to come back and would send him text messages to let him know what
was happening. They exchanged many text messages that day.
At 3:40, Dixon signed a consent form and she thought that meant that
she was going to have a C-section. Prior to that night, she had decided that she
would have a C-section if it were offered to her. The form indicated “consent
vaginal delivery possible abdominal delivery external or internal fetal monitor.”
At one point, Dixon was told that she was being given a medicine to help
her contract more. She also asked for and received an epidural for her pain.
She had learned about epidurals from YouTube.
The nurse who initially attended Dixon left, and the second nurse never
left the room once she told Dixon she was complete. Dixon doesn’t remember
much about the first nurse, other than that she was a black woman.
Dixon is unsure of the time that Dr. Atogho arrived but it was in the
afternoon when she was fully dilated. She knows she was fully dilated because
the nurse told her she was at 10 centimeters. When the nurse told her that,
she called Reese-Thornton, Sr. and he came to the hospital. Reese-Thornton,
Sr. came back to the hospital around 1:30 p.m.
Dr. Atogho had not been in the room to see her before Reese-Thornton,
Sr. arrived. Dr. Atogho arrived in the room 10 to 15 minutes after ReeseThornton, Sr. However, in her deposition, Dixon testified that Reese-Thornton,
Sr. arrived after the Kiwi popped off the first time.
Dixon had never seen Dr. Atogho before that moment. Reese-Thornton,
Sr., the nurse and the two student nurses were in the room with Dr. Atogho
arrived. Dr. Atogho examined Dixon and told her it was time to push.
Dr. Atogho had a “suction thing” and he put it down by the baby. After awhile
it popped off. Dr. Atogho never offered Dixon a C-section. Dr. Atogho never told
her the baby could suffer brain injury or death if she did not have a Csection. No one ever told her the baby was facing in the wrong direction.
Dr. Atogho left the room after he was unsuccessful in delivering the
child. Prior to his leaving, Dixon asked Dr. Atogho to cut her because of her
pain but he did not answer. In her deposition, Dixon indicated that she had
learned through YouTube and Google that the pain after a C-section is horrible.
Dr. Atogho was gone for about 40 minutes. While Dr. Atogho was gone,
the nurse had her continue to push. When Dr. Atogho came back in the second
time, he tried to use the vacuum device again. She was told to push with her
contractions. Reese-Thornton, Sr. and the nurse each held one of her legs.
During the second time Dr. Atogho was in the room, he never offered her a Csection and never told her if she did not have a C-section, the baby could suffer
an injury. Nothing had happened which would have changed her mind about
consenting to a C-section. Dixon again asked Dr. Atogho to cut her.
After Dr. Atogho was unsuccessful a second time, he left the room for 15
minutes. When Dr. Atogho came back, he did not offer Dixon a C-section and
never said anything about the baby being in distress. Dr. Atogho used the
vacuum device a third time. Dr. Atogho still was not successful. Dr. Atogho left
the room a third time. She continued to push with the nurse and ReeseThornton, Sr.
Dr. Atogho was not present when the baby came out, and the nurse is
the one who actually caught the baby. The baby was blue and floppy and
wasn’t crying. Dixon thought the baby was dead. The nurse put tubing in the
baby’s mouth to try to get him to breathe. Dr. Atogho came back into the room
a few minutes later and delivered the placenta. The NICU staff also came into
the room and took the baby with them. Dr. Atogho stayed with Dixon until she
delivered the placenta. Dixon was then taken to a recovery room.
The next day, Dr. Atogho came to Dixon’s room and told her she should
have pushed harder. This made Dixon feel it was her fault. That was the last
time she saw Dr. Atogho.
Dixon stayed in the hospital for four to five days. The baby was
transferred to Miami Children’s Hospital on December 3, 2013. He stayed at
Miami Children’s until January 27, 2014. They were trying to control his
seizures. They also had to put in a G-tube through his stomach because he
could not eat through his mouth. The doctors at Miami Children’s told her the
cause of the injury was lack of oxygen at the time of the birth. Dixon blamed
herself because Dr. Atogho told her she should have pushed harder.
Dixon has learned how to care for Earl Jr. and to do all the tasks the
nurses do when they are there. A nurse is there from 4:00 p.m. until 6:00 a.m.
Dixon has caught the nurses sleeping numerous times. If the nurse is late or
does not show up, Dixon has no time to prepare her own meals and the other
two children’s dinner.
Dixon was able to name several of the medications that Earl Jr. takes.
She does her best to give him his medications. Earl Jr. has been to doctors’
appointments more than 10 times so far this year. Three days before any
appointment, Dixon has to make arrangements for another nurse to come and
accompany her and Earl Jr. to the doctor’s appointments. Earl Jr. has been in
the hospital 7 times so far this year for about 2 weeks each time.
Earl Jr. is able to smile, and smiles when he recognizes Dixon’s voice or
Serenity’s voice. He doesn’t smile when he hears other voices. He can’t walk,
crawl or sit up. He has to be propped up into a sitting position and even then
he falls over. He can’t move his head and can’t reach out to her. He cannot
speak. He is not potty-trained and has to wear adult small diapers.
Dixon cannot work because she has to watch Earl Jr. at all times. It is
especially hard because she has two other, younger children. Dixon can’t do
any normal activities with Earl Jr. and can’t even take him outside. Dixon’s
own activities are greatly curtailed.
Earl Jr.’s problems created lots of problems between Reese-Thornton, Sr.
and Dixon. They fought about money and who would watch Earl Jr., and they
were both physically tired. These problems caused her and Reese-Thornton, Sr.
to break up.
At one point, Dixon moved to Jacksonville to get a job and have the
support of her mother. She did not have a car and had to take a bus or get a
ride from her sister to go to the hospital to see Earl Jr. While she was in
Jacksonville, she had Serenity with her and was also six months pregnant. She
didn’t always go to see Earl Jr. as often as she wanted but she had a lot going
on and did not have transportation. Dixon decided to move back to Miami
because Reese-Thornton, Sr. agreed to help her with Earl Jr.
Morris is a rehabilitation counselor and life care planner. He holds
national certifications as a rehabilitation counselor, vocational evaluator and
life care planner and has been working in this field and preparing life care
plans since 1994. Morris was asked to develop a life care plan for Earl Jr.
Morris reviewed medical records, met with the family, conferenced with treating
physicians and performed an in-person assessment. He determined the
necessary and reasonably probable treatments and their costs for the future
care of Earl Jr.
Morris looked at the cash-pay and self-pay costs of the goods and
services. He did not take into account any third-party sources. With the
imminent repeal of Obamacare, it is unknown what insurance, if any, would be
available. For all costs and services, Morris contacted numerous vendors and
provided all of those numbers to the economist so the economist would have a
range from which to choose.
Earl Jr. will need 24-hour nursing for the rest of his life. The current
rental apartment in which the family lives is too small to accommodate Earl
Jr.’s needs. It would cost $70,000 to $75,000 to make modifications of a rental
apartment or rented residence. It does not make economic sense to spend that
much money to modify an apartment or home on a temporary basis. Morris
believes it is medically necessary for a private residence to be purchased that
can be modified appropriately to accommodate Earl Jr.’s needs.
Morris surveyed homes in the area in which the family lives and
determined that a home for Earl Jr. at age 19 would cost $175,465.
In addition to an LPN, Earl Jr. would need to utilize a housekeeper and
someone to provide home maintenance. If he travels outside the home, he
would need a home health care aide to drive so the LPN can focus on him and
suction him constantly. The mother has two other children and she needs time
to attend to the needs of the other two children.
Morris had not reviewed the depositions of Marla Dixon, Earl ReeseThornton, Sr. or Dr. Corrales-Reyes prior to preparing his report.
Dr. Jerry Tomasovic
Dr. Tomasovic is a specialist in child neurology. He graduated from
University of Chicago Medical School in 1965 and did a two-year residency in
pediatrics and four years of practice in the United States Navy. He is board
certified in pediatrics and adult and child neurology. He practices at two levelthree nurseries staffed by neonatal nurses and neonatal neurologists. He works
on a daily basis from 8:00 a.m. to 5:00 p.m. and his practice is limited to
children. However, he follows some of his patients into their adulthoods. He
sees about 25 patients per day. Dr. Tomasovic has had many patients with the
same disabilities as Earl Jr.
Dr. Tomasovic was involved in training in pediatrics and neurology for
many years. He has published on many occasions and has hospital and
consulting staff privileges at two medical facilities. He has been accepted as an
expert in the field of child neurology in other courts. All of his opinions are
within a reasonable degree of medical certainty.
Dr. Tomasovic reviewed records of the prenatal care of the mother, her
obstetrical records, the child’s post-natal care and treatment records from
numerous hospitals and caretakers of Earl Jr. as well as depositions of many of
the depositions in the case. Dr. Tomasovic performed a physical examination
and observation of Earl Jr. to determine his level of neurologic function at the
time. The parents, nurse, attorney and life care planner were present.
The child has limited ability to control his head and trunk. Such
movement is important because it helps reduce the effects of infections. Moving
the body and expanding the lungs is important to fight infections, particularly
The child’s inability to grasp shows he was not able to perform tasks on a
voluntary basis. The child had a spontaneous smile but not a responsive smile.
Some people misinterpret this smile as being attributed to socialization. Dr.
Tomasovic attempted to have the child perform simple commands. The child
did sustain some eye movement, but the child did not respond to his
whispering of “mommy.” The child did not have the ability to track a visual
image. He used a tape that has alternating images which 50% of newborns will
pick up on and their eyes will track it.
Dr. Tomasovic measured the size of the child’s head circumference. The
head had a circumference of 42 centimeters. Dr. Tomasovic conducted a frontal
lobe assessment and a jaw jerk with abnormal results. Dr. Tomasovic was able
to confirm the findings of Dr. Corrales-Reyes. The intractable epilepsy of the
child, even though not as bad as earlier, will trigger increased secretions which
sets him up for aspiration and pneumonia and is often the cause of the
ultimate demise of many children with Earl Jr.’s conditions.
Dr. Tomasovic concluded that Earl Jr. is in a near persistent vegetative
state. He would need more time with the child to conclude whether the child is
in a persistent vegetative state. Earl Jr. has irreversible permanent neurological
damage and has no significant voluntary functioning. He can provide no selfcare and is totally dependent on his family and others for all of his needs,
including feeding. His tracheotomy and feeding tube are permanent.
Dr. Tomasovic believes the life expectancy of the child is 12 to 15 years of
age. His opinion is based upon a study performed from 1966 to 1992. The
study does not indicate how many of the children had 24-hour nursing care,
which would probably increase life expectancy. There is a 50% chance Earl Jr.
will outlive the life expectancy of 12 to 15 years and a 50% chance he will live
beyond the defense’s life care plan. The most common causes of death in
children with Earl Jr.’s conditions are cardio-pulmonary infections. The
damage impairs the ability to combat frequent, recurring infections to the point
of limiting restriction of the lungs to respond to these illnesses.
Dr. Tomasovic reviewed the life care plan of Ms. Riddick-Grisham. Earl
Jr. has averaged 75 days per year of hospitalization so far in his life, yet the
defense’s life care plan only anticipates 1 day of hospitalization per year.
Riddick-Grisham was asked to prepare a life care plan Earl Jr. She has
been a licensed registered nurse for 41 years, and is a certified case manager
and certified life care planner.
She started as a nurse in the New York State Department of Mental
Health managing two units of adults with mental retardation and intellectual
disability. She later worked for Allied Chemical Corporation and worked for
Crawford Corporation managing patient care. She later became the director of
medical services for Paradigm until she left to start her own company. She has
taught and written, and has previously testified as an expert in the field of life
care planning. She has done hundreds of life care plans for individuals with
similar conditions as Earl Jr.
Riddick-Grisham reviewed extensive medical records and school records
of Marla Dixon, school records for Reese-Thornton, Sr., and numerous hospital
and doctors and medical records of Earl Jr.Riddick-Grisham met with the
family in July 2016 together with Dr. Tomasovic. They met in the one-bedroom
apartment where Earl Jr. lived. The mother and father, a nurse and two
attorneys were also present.
Riddick-Grisham’s life care plan goes to age 15 but she is not offering an
opinion on life expectancy. The total cost of Riddick-Grisham’s life care plan is
$4,094,388.70 through age 15. The life care plan does not include the cost of
buying a home for Earl Jr. and only allows for 9 days of future hospitalization.
If Dr. Tomasovic agreed that a home was needed and that more hospitalization
might be needed, she would not quarrel with that.
Dr. Frederick Raffa
Dr. Raffa is a senior economist at Raffa Consulting Firm. An economist is
someone who is concerned with how values are determined and whether those
values efficiently allocate and efficiently produce the standard of living we all
desire. Dr. Raffa graduated from Florida State University with a B.A. in
business administration in 1965, a Masters’ degree in business administration
in 1966 and a PhD in economics in 1969. He eventually became a tenured
As of August 2016, Dr. Raffa determined that the present value of
Riddick-Grisham’s life care plan was $4,264,657, and was based upon the
numbers being valid as of January 2017. He has revised his opinion based
upon the March 2017 trial date and also based upon a change in the inflation
rate. His current opinion is that Riddick-Grisham’s life care plan has a present
value of $4,140,800. If the child happened to outlive the estimated life
expectancy, the present value of each additional year of care would be
approximately $360,000 to $370,000 per year.
Dr. Michael Berkus
Dr. Berkus graduated from the University of Florida Medical School in
1976 and is board certified in OB/GYN and in maternal fetal medicine. He is
an associate professor and has delivered over 3,000 babies. He has testified at
least 35 times. He has published papers on the use of forceps versus vacuum
extractors and co-published a book on forceps and all extractor devices. He has
been a reviewer for the American Journal of Obstetrics and Gynecology. He also
acted as an advisor to a company that manufactured vacuum extractors.
Dr. Berkus was asked to opine on the standard of care as to Dr. Atogho’s use of
the Kiwi device, and whether any of Earl Jr.’s injuries were attributable to a
breach of care concerning the use of the Kiwi. All of his opinions are to a
reasonable degree of medical certainty. Dr. Berkus reviewed numerous medical
records of the care of Dixon and birth of Earl Jr. as well as the depositions of
numerous witnesses. He also spoke with Dr. Atogho.
Vacuum extraction devices use a small cup that attaches to the scalp of
the fetus in the vaginal canal. When the mother pushes, the doctor pulls on the
vacuum extraction device to assist the mother. The device has a gauge to show
how much force is being pumped. If Dixon refused a C-section, Dr. Atogho’s
use of the device met the standard of care, even at the plus 1 or plus 2
Dr. Atogho applied the vacuum extractor three times. He used it from
14:00 to 14:05, at which time it popped off. A safety feature of the instrument
causes the cup to pop off if there is too much pressure. The device was used a
second time from 14:46 to 14:51, at which time it popped off again. The device
was used a third time for five minutes starting at 15:01.
The device is designed to be used for babies in the occiput posterior
position. The use of forceps in the hands of someone familiar with forceps
would have been the better choice, but Dr. Atogho had not used forceps in a
long time. Dr. Berkus opined that Dr. Atogho’s use of the vacuum extractor did
not cause or contribute to any of the babies’ injuries.
If Dr. Atogho had not offered a C-section then his use of the Kiwi would
have been in violation of the standard of care. The standard of care would have
required Dr. Atogho to have offered a C-section within a few minutes of 13:49
after he had read the fetal monitor strips. If Dr. Berkus had a mother who
refused a C-section he would have told her of the risks to the baby and would
have delineated those risks in his notes.
Dr. Frank Ling
Dr. Ling is in an OB/GYN in private practice in Germantown, Tennessee.
He graduated from University of Texas Southwestern Medical School,
completed a three-year residency at University of Tennessee in Memphis and
stayed on the faculty for 25 years. For the past 14 years, he has been in private
practice. He has been an examiner for the American Board of Obstetrics and
Gynecology and later was chairman of the board. He is board certified and has
been an expert witness in numerous cases. Since 1999, Dr. Ling has testified
in trial or deposition 39 times and has always testified for a doctor or a
Dr. Ling was asked to review records and other evidence in the case by
the Government including the pre-natal care, hospital records from the birth,
imaging records, medical records on the care of the newborn and numerous
depositions. Dr. Ling prepared a report of his findings. Dr. Ling is familiar with
the standard of care in relation to the duties of an OB/GYN attending to a
delivery. The American College of Obstetricians and Gynecologists (ACOG) is an
educational body for its members. ACOG publishes numerous educational
materials designed to provide guidance to practicing OB-GYNs.
Dr. Atogho was not present when Dixon first arrived at the hospital at
approximately 2:00, but he did issue orders for her care such as epidural and
Pitocin. Dr. Ling does not believe Pitocin was contraindicated once Dixon
refused a C-section, does not believe Dr. Atogho working on other deliveries
that day fell below the standard of care and does not believe another doctor
should have been called in for help.
Dr. Ling believes it was within the standard of care for Dr. Atogho to offer
a C-section, but a C-section was not required. In his deposition, he answered
that a C-section was required. If Dr. Atogho believed the baby was in jeopardy
and had never offered a C-section it would have been below the standard of
care. Dr. Ling opined that the use of Pitocin and use of the Kiwi were
appropriate only because the patient had refused a C-section. All of Ling’s
opinions are based upon the assumption that Dr. Atogho offered C-section and
that Dixon refused.
2. Findings of Fact
On February 28, 1994, Marla Tamika Dixon was born in Jacksonville,
Florida. She attended high school in Duval County, Florida, and completed her
high school education at the Job Corps in Homestead, Florida. While in the Job
Corps, Dixon first learned she was pregnant.
Earl Reese-Thornton, Sr., was born October 27, 1990. He graduated from
Miami Northwestern Senior High in 2010. From March 2013 through 2014, Mr.
Reese-Thornton, Sr. worked with Empire Staffing. Since April 2014, Mr. ReeseThornton, Sr. has worked for C&S Wholesale Grocery.
Dr. Ata Atogho was born in Cameroon in 1973. After graduating from
high school, he immigrated to the United States and earned a Bachelor of
Science Degree in Biology. Dr. Atogho earned his medical degree in 2003.
Thereafter, he interned and served his residency specializing in OB/GYN,
finishing in 2008. In July 2008, Dr. Atogho was licensed to practice medicine
in Florida and in August 2008, he began working as an OB/GYN. On March
12, 2013, Dr. Atogho was hired by Jessie Trice. Dr. Atogho is a Fellow of
American College of Obstetricians and Gynecologists. As of December 2013, Dr.
Atogho had delivered approximately 2,000 babies.
Ms. Dixon’s Pregnancy and Delivery
Dixon received prenatal care from Jessie Trice. Jessie Trice is a federally
supported health center. The pregnancy was normal and without complication
until the day of the birth. Dixon did not participate in formal pre-natal
education, but she learned about C-section and vaginal deliveries by watching
On December 2, 2013, at approximately 1:00 a.m., Dixon went into
labor. She presented at North Shore at approximately 2:00 a.m. Upon
admission to North Shore, Dixon signed a consent form which acknowledged
her general consent to treatment as well as her right to refuse any medical
treatment. The consent form indicated that she was agreeing to a vaginal
delivery as well as any other surgical procedures required in the course of
Yolande McCray, a nurse at North Shore, was assigned to provide care
for Ms. Dixon during her labor and delivery once her shift began at 7:00 a.m.
Dr. Atogho, who was offsite, was advised that Dixon was in labor and issued
orders admitting Dixon and addressing her care, including continuous external
fetal monitoring. He ordered a Low-Dose Pitocin regime should contractions
become irregular. The order required McCray to stop Pitocin if there was
evidence of fetal distress.
Dixon’s labor was uneventful until approximately 13:20 when fetal heart
rate tracings showed deceleration of the baby’s heart rate. Pitocin, which had
been started at 9:46, was turned off at 13:30 because of a non-reassuring heart
rate. At about 13:33, McCray charted her vaginal examination, revealing Dixon
to be fully dilated (marking the end of Stage One, and beginning of Stage Two
Labor) with the baby descended to +1 station. McCray notified Dr. Atogho on
his cell phone of the deceleration and the conditions indicating that the baby
was ready to be delivered.
Dr. Atogho arrived at Dixon’s bedside for the first time at 13:49. Fetal
monitoring indicated the baby had a non-reassuring heart rate indicative of
hypoxia (oxygen deprivation). Dr. Atogho believed that the fetal monitoring
indicated that Earl Jr. had a category 3 heart rate. Pitocin was restarted once
Dr. Atogho arrived. Dr. Atogho continued infusing Pitocin into Dixon from
13:50 until 15:21, when Earl Jr. was delivered. Pitocin was contraindicated
because of the baby’s non-reassuring heart rate, and further impaired the flow
of blood and oxygen to the baby. Dr. Atogho failed to use appropriate fetal
resuscitation measures to correct the non-reassuring fetal heart rate.
From 13:49 through 15:21 Dr. Atogho believed that Earl Jr. was in
imminent danger of hypoxic injury, brain damage or death. Nonetheless, he
continuously left Dixon’s room to treat another patient, and he delivered that
other baby at 15:08, just minutes before Earl Jr. was born. During that same
time, Dr. Atogho also made an eight-minute phone call to his financial advisor.
Between 13:49 and 15:21, Dr. Atogho used a Kiwi vacuum device on
three occasions. At 15:21, Ms. Dixon delivered Earl Jr. vaginally. When Earl Jr.
was delivered, he was blue and not breathing. Shortly after birth, the Neonatal
Intensive Care Unit (“NICU”) team was called and assumed care for the baby.
Earl Jr. was transferred the following day to Nicklaus Children’s Hospital,
where he was later diagnosed with hypoxic ischemic encephalopathy and brain
damage from oxygen deprivation.
The Court finds the testimony of Dixon and McCray to be more credible
than the testimony of Dr. Atogho and Dr. Jayakar concerning whether or not
Dr. Atogho offered Dixon a C-Section. According to Dixon and McCray, Dixon
requested a C-section several times and Dr. Atogho never offered one. McCray
testified that she was present with Dixon throughout the second stage of labor
when Dr. Atogho was also present, and that Dixon requested a C-section
several times in the course of the delivery. McCray corroborated Dixon’s
testimony that Dr. Atogho never offered a C-section, and responded to Dixon’s
multiple requests for a C-section by directing her to “keep pushing.” Dr. Atogho
was never present with Dixon at a time when McCray was not present.
McCray also would have noted the refusal in her notes and her neonate
treatment report would have noted the mother’s refusal to have a Csection. Dr. Atogho hand-wrote in the hospital chart, after the fact, “declined
c/s,” indicating that Dixon refused a C-section. When McCray saw this note,
she asked Dr. Atogho why he wrote “declined c/s” in Dixon’s chart, when Dixon
never declined the C-section. Dr. Atogho responded that it was Dixon’s first
baby and she didn’t need a C-section. McCray testified that the note Dr. Atogho
added to the chart was “a lie.”
The Court has not considered the testimony of Reese-Thornton, Sr. on
this issue because the Court is unsure whether Reese-Thornton, Sr. was there
the entire time Dr. Atogho was bedside. There was some testimony raising
questions as to whether he was even present the first time Dr. Atogho applied
the Kiwi device. So, while the Court credits Reese-Thornton, Sr.’s testimony
that while Reese-Thornton, Sr. was in the room Dr. Atogho did not offer a Csection, Reese-Thornton, Sr. cannot be relied upon in determining whether Dr.
Atogho ever offered a C-section.
The finding that no C-section was offered by Dr. Atogho is further
supported by Dr. Atogho’s failure to follow the hospital’s required procedure of
filling out and having Dixon sign an “AMA” or “Against Medical Advice” form.
Also, the Court credits the testimony of Dr. Gubernick that Dr. Atogho’s failure
to “call in the cavalry” to convince her to have the C-section and Dr. Atogho’s
failure to document all efforts to convince her to do so in his notes is indicative
of his failure to have offered a C-section. Dr. Corrales-Reyes, a pediatric
neurologist who saw Earl Jr. at Nicklaus Children’s Hospital shortly after his
birth, indicated that Dixon told him she never refused a C-section.
The Plaintiffs’ OB/GYN expert, Dr. Gubernick, testified that Dr. Atogho’s
actions – restarting Pitocin, leaving Dixon’s bedside to deliver another baby,
calling his financial advisor, and faing to document the risks associated with
refusing a C-section – were inconsistent with recommending, ordering, or
preparing for a C-section.
Dr. Parul Jayakar, a geneticist at Nicklaus Children’s Hospital, saw Earl
Jr. to determine the nature of the then unidentified condition. Dr. Jayakar’s
notes include the statement “mother refused C/S.” It is unclear whether this
note came from her review of Dr. Atogho’s note in the chart or whether it was
based upon a statement to her by Reese-Thornton, Sr. But the Court has
already determined that Reese-Thornton, Sr. is not a reliable witness for this
issue and therefore finds that Dr. Jayakar’s testimony is not helpful to the
Court on this issue.
C. Standard of Care
Plaintiffs presented the testimony of expert Dr. Martin Gubernick, a
board certified OB/GYN and clinical instructor at Cornell Medical School, who
has had a clinical practice at New York Presbyterian Hospital since 1986 and
has treated thousands of patients. The Court finds Dr. Gubernick extremely
qualified and finds his opinions more reliable than the defense experts. Based
upon Dr. Gubernick’s testimony, as well as the other credible testimony and
evidence in the case, Dr. Atogho breached the standard of care by restarting
the Pitocin, which was contraindicated and extremely dangerous, and that this
was a gross deviation from good and acceptable practice.
Dr. Gubernick testified that it was extremely rare, and almost unheard
of, that a mother would refuse a C-section when confronted with information
that her baby could suffer brain damage, or even death, without it. There was
no documentation that Dr. Atogho offered or recommended a C-section and
that, even if he did make the offer, he didn’t do enough to convince the mother
to have the C-section. According to Dr. Gubernick, Dr. Atogho should have
“brought in the cavalry” to convince Dixon to have the C-section. A nurse, other
doctor and administrator should have been brought in to speak to Dixon and to
explain the extreme risk to the baby. Further, Dr. Atogho should have
documented his efforts to convince Dixon to have a C-Section, rather than
simply writing “refused c/s.”
The Court finds that starting Pitocin, augmenting Dixon’s labor at 13:50
and using multiple attempts with a Kiwi vacuum was a gross deviation from
good and acceptable practice. The Court also accepts Dr. Gubernick’s opinion
that it was below the standard of care for Dr. Atogho to leave Dixon for any
reason after he had determined Earl Jr. was in distress. Given Earl Jr.’s
markedly abnormal heart rate and Dr. Atogho’s inappropriate use of Pitocin, a
C-section should have been performed by 14:00 and it was below the standard
of care for Dr. Atogho to have failed to offer a C-section to Dixon.
The care Dr. Atogho provided to Dixon on December 2, 2013 fell below
the standard of good and acceptable practice and directly caused significant
neurologic injury to Earl Jr.
The vaginal delivery caused Earl Jr. to suffer from excessive
blood/oxygen deprivation leading to hypoxic ischemic encephalopathy.
Dr. Atogho’s refusal to perform a C-section when it was required, despite
Dixon’s repeated requests, caused Earl Jr.’s injuries. In fact, Dr. Atogho tried
to cover his tracks by inserting a false note in Dixon’s chart. His act reflects
consciousness of guilt. See Busbee v. Quarrier, 172 So. 2d 17, 22 (Fla. Dist. Ct.
App. 1965) (quoting Wigmore on Evidence for the proposition that “a party’s. . .
fabrication of evidence. . . and all similar conduct, is receivable against him as
an indication of his consciousness that his case is a weak or unfounded one;
and from that consciousness may be inferred the fact itself of the cause’s lack
of truth and merit.”). In addition, Dr. Atogho’s restarting of the Pitocin, which
was contraindicated because it restricted oxygen to Earl Jr., also caused Earl
The Court finds that Dr. Atogho’s departure from the standard of care,
including his refusal to perform a C-section, proximately caused Plaintiffs’
1.) Life Care Plan
As a starting point, the Court finds the life care plan of the Plaintiffs to
be more reliable than the life care plan of the Defendants. Here are just two
examples of the lack of reliability of the Defendant’s plan: the plan calls for an
additional 9 days of hospitalization during the next 12 years of Earl Jr.’s life,
yet Earl Jr. has already been hospitalized for over 75 days in the first three
years of his life. The Court finds the testimony of Ira Morris, an expert in
rehabilitation counseling and life care planning who prepared a Life Care Plan
for Earl Jr., to be more reliable than the Defendant’s expert. Morris detailed
Earl Jr.’s needs for the rest of his life, including medical and therapeutic
treatment, medications, equipment, supplies, attendant care, transportation
and special residential needs.1
2.) Life Expectancy
The parties’ experts do not materially disagree on the present medical
diagnoses; nor is there much disagreement on the treatment that Earl Jr. will
need in the future. The real, significant disagreement between the Plaintiffs’
expert, Dr. Paul Kornberg, and the Defendant’s expert, Dr. Jerry Tomasovic, is
in their opinions on the life expectancy of Earl Jr. The Court found both
experts to be supremely experienced, caring and qualified, which has made this
particular factual finding most difficult for the Court.
The parties agree that Earl Jr.’s medical diagnoses are: severe birth
related spastic seizure disorder, profound global developmental delay,
spasticity, visual impairment, feeding problems with a history of dysphasia,
severe gastric esophageal reflux disease, neuromuscular scoliosis, constipation,
sleep apnea, asthma.
The child has already undergone numerous operative procedures
including a permanent tracheotomy and permanent gastrostomy tube
placement. The child is profoundly developmentally delayed. At almost two and
one half years, he had not achieved the milestones one would expect of a fourmonth old. The child’s scoliosis can cause functional impairment to breathing
and heart function and often requires corrective surgery. The child has
profound disability and will require round-the-clock care from a variety of
gastroenterologist, neurologists, orthopedic surgery, Xrays, MRI’s, CT’s and
EEG’s, bracing to prevent deformity and many other services.
Dr. Kornberg opines the child has a life expectancy of an additional 47.5
years. It is not uncommon for a person with Earl Jr.’s conditions to live 30 to
40 years and he has treated similar patients who are in their 50’s. But Dr.
Kornberg acknowledges that the child’s more significant motor impairment
would negatively affect life expectancy. The child is also at high risk for
aspirational pneumonia. He has been hospitalized several times for upper
respiratory infections. Dr. Kornberg’s life expectancy opinion assumes there
would be appropriate support and care of the child.
The Court has not considered the information of Dr. Katz contained in Morris’s report
since Dr. Katz did not testify.
Dr. Tomasovic points out that the intractable epilepsy of the child, even
though not as bad as earlier, will trigger increased secretions which sets the
child up for aspiration and pneumonia and is many times the cause of the
ultimate demise of many children. Dr. Tomasovic concluded that Earl Jr. is in
a near persistent vegetative state. He would have needed more time with the
child to conclude whether the child was in a persistent vegetative state. Dr.
Tomasovic considered that Earl Jr. has irreversible permanent neurological
damage and has no significant voluntary functioning. He can provide no selfcare and is totally dependent on his family and others for all of his needs,
including feeding. His tracheotomy and feeding tube are permanent.
The most common causes of death in children with Earl Jr.’s conditions
are cardio-pulmonary infections. The damage impairs the ability to combat
frequent, recurring infections to the point of limiting restriction of the lung to
respond to these illnesses.
Dr. Tomasovic believes the life expectancy of the child is 12 to 15 years of
age. But this opinion is based largely upon a study performed from 1966 to
1992. The study does not indicate how many of the children had 24-hour
nursing care, and 24-hour nursing care would probably increase life
expectancy. And Dr. Tomasovic has had his own patients with similar
conditions who have lived decades. There is a 50% chance Earl Jr. will outlive
the median life expectancy of 12 to 15 years and a 50% chance he will live
beyond the defense’s life care plan. Of course, statistically there is a 50%
chance he would live less than the median.
The Court finds that the life expectancy of Earl Jr. is 30 years, or an
additional 27.5 years. This is based upon several factors. He will have 24-hour
nursing care which will lead to a longer life than the 12 to 15 years the
Defendant’s expert believes. Both Dr. Kornberg and Dr. Tomasovic have had
patients with similar conditions live for 30 years. Because of the severity of Earl
Jr.’s condition, particularly his lack of mobility and his constant secretions, the
Court believes he is at a higher risk to succumb to infection. And, though the
parents are loving and caring, their conduct to date has demonstrated that
they are not hyper-vigilant, which the Court finds is a necessary factor to reach
the outer limits of life expectancy proposed by Dr. Kornberg.
3.) Economic damages
a. Past economic damages
The following past medical expenses for Earl Jr. establish the Plaintiffs’
past economic damages:
Sunshine State Health
Children’s Medical Services
Total past economic damages:
b. Future economic damages
The Court finds that future medical expenses shall be calculated using
the Plaintiffs’ life care plan, but for 27.5 years instead of 47.5 years, and that
figure shall be reduced to present money value.
The Court further finds that the future earnings calculation of the
Plaintiffs for Option 1 shall be utilized to calculate future lost earnings of Earl
Jr. and that figure shall be reduced to present money value.
The Court previously entered a non-final order [ECF No. 168] advising
the parties of its findings on the issues of life expectancy and life care plans.
The parties were ordered to recalculate Earl Jr.’s future economic damages and
have the economist reduce the sum to its present money value. The Plaintiffs
filed their Proposed Finding on Future Economic Damages [ECF No.]. The
Defendants do not dispute the mathematics of the Plaintiff’s Proposed Finding.
The Court, based upon a life expectancy of 27.5 years and utilizing the
Plaintiffs’ expert’s life care plan (except for the purchase of a home for Earl Jr.)
sets for the following future economic damages for Earl Jr.
Loss of future earnings:
Future medical expenses:
Total future economic damages:
Total economic damages:
$877,885 present money value
$12,159,709 present money value
$13,037,594 present money value
The Court cannot imagine a more devastating turn of events for parents
expecting the birth of their first child where there had been no complications
during the pregnancy. At the anticipated, joyful moment of birth of a crying,
bouncing baby, they are instead presented with the dreadful specter of a blue,
floppy, lifeless child. Although life as a parent of any child is challenging and
frustrating and can be overwhelming, the life of a parent of a child who is as
profoundly and permanently injured as Earl Jr. is almost unimaginable and
must sometimes be unbearable. To be sure, at times this life has proven to be
too much for the mother and father, who have each sought temporary respites
from the burdens of parenting this child. These circumstances would test the
limits of even the most mature and dedicated parents. Their momentary
failures to be omnipresent are more indicative of their pain and suffering and
loss of enjoyment of life than of an absence of it. Yet they have returned to their
duties and accepted their fates as parents of this special needs child and, for
the next quarter century or so, such will be their lot in life. Who would accept
any sum of money to be in their shoes?
The United States argued that the parents haven’t really suffered
because no evidence was presented that they have suffered from, or been
treated for, depression, and that the child has not suffered and should not
receive much in non-economic damages because the child is not self-aware
enough to enjoy the benefits of those monies. But the Government
underestimates the value of the loss of the simple pleasures in the life of a
parent and his or her child: having the baby recognize you and smile at you,
reading a book at bedtime, holding hands with your toddler as you walk on the
beach, receiving a hug from your child after a day at work, teaching your child
to read, throwing a football together, going to the movies, going to sporting
events, working on school homework together. These and so much more are
the simple joys that neither the parents nor the child in this case will ever
know. And they should each be properly compensated for their losses of these
simple yet significant life experiences. In making this award, the Court has
considered the testimony in the case, the facts of this case, the status of the
parties, the amount allowed for compensatory damages and the philosophy and
trend of other awards made by judges and juries in similar cases. In assessing
the awards to the mother and father, the Court has taken into consideration
the total amount of time each parent has spent and will be spending with Earl
a. Past non-economic damages
Earl Reese Thornton, Sr.
Total past non-economic damages
b. Future non-economic damages
Earl Reese Thornton, Sr.:
Total future non-economic damages
Total non-economic damages
3. Conclusions of Law
The Court has jurisdiction over this action pursuant to the Federal Tort
Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671, et seq. The FTCA subjects the
United States to liability for money damages for personal injuries that result
from the negligence of its employees while acting within the scope of their
employment. See 28 U.S.C. § 2672. Federally qualified health centers and
employees of such centers acting within the scope of their employment are
deemed to be employees of the United States for medical malpractice purposes.
See 42 U.S.C. § 233.
On December 2, 2013, Dr. Atogho was employed by Jessie Trice and was
treating Plaintiffs Dixon and Earl Jr. within the course and scope of his
employment. Jessie Trice and Dr. Atogho are both deemed federal employees
for the time period at issue in this action. Thus, the United States is liable for
any personal injuries caused by the negligence of Dr. Atogho and, by extension,
Jessie Trice, in the course of Dr. Atogho’s care of Dixon and Earl Jr.
Pursuant to the FTCA, the liability of the United States is determined “in
accordance with the law of the place where the act or omission occurred.” 28
U.S.C. § 1346(b). Because the acts and omissions in this case occurred in
Florida, the applicable substantive law is Florida medical malpractice law.
Under Florida law, the plaintiff in a medical malpractice suit must establish
that the alleged actions of the health care provider represented a breach of the
prevailing professional standard of care for that health care provider. Fla. Stat.
§ 766.102(1). The prevailing professional standard of care for a given health
care provider is that level of care, skill, and treatment which, in light of all
relevant surrounding circumstances, is recognized as acceptable and
appropriate by reasonably prudent similar health care providers. Id. The
Florida Supreme Court has further stated that to prevail in a medical
malpractice case, a plaintiff must establish the standard of care owed by the
defendant, the defendant’s breach of the standard of care, and that the breach
proximately caused the damages claimed. Gooding v. Univ. Hosp. Bldg., Inc.,
445 So. 2d 1015, 1018 (Fla. 1984).
The Court’s factual findings establish that by virtue of the medical
provider-patient relationship between Dr. Atogho and Marla Dixon and Earl Jr.,
the United States, through Dr. Atogho, owed a duty to Marla Dixon and Earl
Jr. to provide care and treatment that complied with the prevailing professional
standard of care. The United States, through Jessie Trice and Dr. Atogho, had
and undertook the duty to provide Marla Dixon and Earl Jr. medical care and
services in accordance with the level of care that is recognized as acceptable
and appropriate by reasonably prudent similar health care providers. Dr.
Atogho breached the standard of care by: (1) restarting the labor stimulation
medication Pitocin when it was contraindicated because of Earl Jr.’s nonreassuring heart rate; (2) not performing or ordering or recommending a Csection when it was urgently needed and Dixon requested it; and (3) leaving
Dixon for a prolonged period of time when her baby was in distress to deliver
another baby and call his financial advisor. Dr. Atogho’s negligence proximately
caused Earl Jr.’s injuries.
The components and measure of damages in suits brought under the
FTCA are determined according to the law of the state where the tort occurred.
Bravo v. United States, 532 F.3d 1154, 1160-61 (11th Cir. 2008). Under Florida
law, Earl Jr. is entitled to damages for past and future pain and suffering; loss
of capacity for the enjoyment of life; permanent and total disability; loss of
capacity to earn money or be gainfully employed in the future; past and future
disfigurement and scarring; past and future mental anguish; past economic
damages, including medical expenses; and future medical expenses. See §
766.202(8); Fla. Std. Jury Instr. 501.2. Plaintiffs Marla Dixon and Earl ReeseThornton, Sr. are entitled to damages for past and future mental pain and
suffering. See id.
A. Statutory Caps for Noneconomic Damages
Dixon was a Medicaid recipient at the time of Earl Jr.’s birth. Florida
Statute § 766.118(6) places a cap on noneconomic damages in medical
malpractice cases involving a Medicaid recipient. The cap is $300,000 per
claimant, “unless the claimant pleads and proves, by clear and convincing
evidence, that the practitioner acted in a wrongful manner.” Id. The statute
defines “wrongful manner” as “bad faith or with malicious purpose or in a
manner exhibiting wanton and willful disregard of human rights, safety, or
property.” Fla. Stat. § 766.118(6)(c). Plaintiffs failed to present clear and
convincing evidence that Dr. Atogho acted in a wrongful manner, willfully
disregarding the safety of Earl Jr.
Florida Statute § 766.118, as a whole, provides statutory caps for
noneconomic damages in wrongful death and personal injury medical
malpractice cases. In Estate of McCall v. United States, 134 So. 3d 894, 901,
905 (Fla. 2014), the Florida Supreme Court found that the statutory cap on
noneconomic damages in wrongful death cases violated the Florida
Constitution’s Equal Protection Clause, in part because “the cap on
noneconomic damages. . . bears no rational relationship to a legitimate state
objective, thereby failing the rational basis test.” (internal citations omitted).
The plurality’s analysis of the statute under the rational basis test analyzed the
legislature’s intent in passing § 766.118 as a whole, not just the cap on
damages in wrongful death cases. Id. at 905-15. Indeed, the plurality
concluded that “no rational basis currently exists (if it ever existed) between the
cap imposed by section 766.118 and any legitimate state purpose. . .At the
present time, the cap on noneconomic damages serves no purpose other than
to arbitrarily punish the most grievously injured or their surviving family
members.” Id. at 914-15.
Following McCall, at least two district courts of appeal have found the
statutory caps for noneconomic in § 766.118 unconstitutional in personal
injury medical malpractice cases. See Port Charlotte HMA, LLC v. Suarez, No.
2D15–3434, 2016 WL 6246703, at *2–3 (Fla. 2d Dist. Ct. App. Oct. 26, 2016)
(holding the statutory cap for noneconomic damages in § 766.118(3), which
applies to causes of action for personal injury or wrongful death arising from
medical negligence, unconstitutional under the reasoning of McCall); N.
Broward Hosp. Dist. v. Kalitan, 174 So.3d 403, 410-11 (Fla. 4th Dist. Ct. App.
2015). In 2015, Florida’s Fourth District Court of Appeal, in North Broward
Hospital District v. Kalitan, 174 So. 3d 403 (Fla. Dist. Ct. App. 2015),2 held that
Review pending, No. SC15-1858 (Fla. 2015). The case has been fully briefed in the
Florida Supreme Court and was argued on June 9, 2016.
McCall mandated a finding that section 766.118’s caps on noneconomic
damages in personal injury cases were similarly unconstitutional:
[A]dhering to McCall, the section 766.118 caps are
unconstitutional not only in wrongful death actions, but also
in personal injury suits as they violate equal protection. It
makes no difference that the caps apply horizontally to
multiple claimants in a wrongful death case (as in McCall) or
vertically to a single claimant in a personal injury case who
suffers noneconomic damages in excess of the caps (as is the
case here). Whereas the caps on noneconomic damages in
section 766.118 fully compensate those individuals with
noneconomic damages in an amount that falls below the
caps, injured parties with noneconomic damages in excess of
the caps are not fully compensated.
Id. at 411. See also Port Charlotte HMA, LLC v. Suarez, No. 2D15-3434,
2016 WL 6246703 (Fla. Dist. Ct. App. Oct. 26, 2016).
Therefore, although no Florida court has directly addressed the cap for
Medicaid recipients under § 766.118(6), Florida courts have broadly applied
McCall to hold that the statutory caps in § 766.118 are unconstitutional with
respect to personal injury actions. The Court concludes that McCall and its
progeny apply equally to subsection 6 (although not expressly directed to that
subsection) because it, like subsections 1, 2 and 3, limits damages “arbitrarily
[which] diminishes compensation for legally cognizable claims,” McCall, 134 So.
3d at 901, and denies plaintiffs equal protection. For the same reasons already
set forth in McCall and its progeny, the Court determines that Florida courts
would hold this subsection unconstitutional as well. Therefore, the statutory
caps do not apply.
B. Reasonableness of the Damages Award
“Under Florida law, an award of non-economic damages must bear a
reasonable relation to the philosophy and general trend of prior decisions in
such cases.” Bravo, 532 F.3d at 1162 (internal citations omitted). In order to
determine the philosophy and trend of prior decisions, the Eleventh Circuit has
stated that courts must look to judgments that have been upheld on appeal by
the Florida appellate court that would have had jurisdiction over an appeal in
the case had it been filed in state court. Id. at 1164. Here, the Third District
Court of Appeal would have jurisdiction if this case had been filed in state
court. Id. However, there are very few appellate decisions analyzing awards of
non-economic damages in similar cases in Florida, presumably because the
statutory caps in section 766.118 were only recently held unconstitutional. The
parties have not cited, and the Court has not been able to find, any decisions
in similar cases from the Third District Court of Appeal.
The only recent decision in a similar case from any Florida appellate
court that the Court has been able to find is Port Charlotte HMA, LLC v. Suarez,
in which the Second District Court of Appeal of Florida upheld a jury verdict
that awarded $1,250,000 in noneconomic damages to a child that suffered
brain damage due to the negligence of doctors during the mother’s labor and
delivery. 2016 WL 6246703 at *1. The court also upheld the jury’s award of
$4,000,000 in noneconomic damages to the child’s mother. Id. The court noted
that the child would need 24-hour care for the rest of her life. Id. However, the
court’s decision primarily analyzed whether the statutory caps in section
766.118 were constitutional and whether the trial court should have applied an
economic setoff pursuant to section 768.81, and did not provide any analysis of
the actual amount of the jury’s award of noneconomic damages. Id.
Given the limited number of recent similar decisions in Florida, the Court
also looked to appellate decisions from outside of Florida in determining
whether its award of non-economic damages bears a reasonable relationship to
the philosophy and general trend of prior decisions in similar cases. However,
there appear to be few appellate decisions in similar cases from outside Florida
that do not involve statutory caps. In the most recent similar appellate decision
that the Court found, the Michigan Court of Appeals upheld a jury verdict that
awarded $2.5 million in past noneconomic damages and $11,189,000 in future
noneconomic damages to the plaintiffs for severe brain damage suffered by a
baby at birth. Vanslembrouck ex rel. Braverman v. Halperin, No. 309680, 2014
WL 5462596, at *1 (Mich. Ct. App. Oct. 28, 2014). The plaintiff’s experts opined
that the baby’s injuries were consistent with hypoxic ischemic encephalopathy
and were caused by the doctor’s negligence during the delivery and birth,
including the doctor’s failure to timely stop administering Pitocin and the
failure to timely perform a C-section. Id. at *29. The child was 18 years old at
the time of the trial and could not walk, talk, or feed herself. Id. at *1. She
required full-time care. Id. The jury calculated the damages based on a life
expectancy of age 82, and calculated the future noneconomic damages at a rate
of $167,000 per year. Id. at *55 n. 28, *61. The court did not perform an indepth analysis of the amount of the award of non-economic damages.
In support of their request for noneconomic damages, the Plaintiffs have
cited to two federal district court decisions in FTCA cases involving similar
facts. The Defendant objects to the Court’s consideration of these two decisions
because they did not apply Florida law and have not been appealed on grounds
that the awards were excessive. However, given the lack of appellate decisions
in similar cases both within and outside of Florida, the Court has considered
both cases. In the first case, which involved a hypoxic ischemic brain injury
suffered by a child at birth, the court awarded the child $5 million for loss of a
normal life, $3 million for pain and suffering, $2 million for disfigurement, and
$1 million for risk of future harm, for a total of $11 million in noneconomic
damages. CSC v. United States, No. 10-910, 2013 WL 6795723, at *16-17 (S.D.
Ill. Dec. 20, 2013). In determining the amount of noneconomic damages, the
court noted that the child would never live independently, would forever be
incontinent, would never be able to have a conversation with his parents,
would require constant supervision, and had severe disfigurement. Id.
In the second case, which involved permanent brain damage suffered by
a baby due to a doctor’s negligence during the mother’s labor and delivery, the
court awarded the plaintiff $9.1 million in noneconomic damages. Arroyo v.
United States, No. 07 C 4912, 2010 WL 1437925, at *1, *16 (N.D. Ill. April 2,
2010). The court noted that the baby suffered from permanent pain, entitling
him to $2.1 million for past and future pain and suffering. Id. The court noted
that the baby’s injuries were severe and permanent, and that the baby would
always require a feeding tube, would need assistance going to the bathroom,
would potentially never talk, and would likely never walk. Id. The court
therefore awarded $5 million for loss of a normal life. Id. The court noted that
the baby has a small head, feeding tube, muscle tightness, and spastic
quadriplegia, and therefore awarded $2 million for disfigurement. Id.
All four of the above-referenced cases involved injuries similar to those
sustained by Earl Jr. The Court’s award to Earl Jr. is more than the amount
awarded to the child in Port Charlotte, but the Court’s award to Dixon is less
than the amount awarded to the mother in Port Charlotte. The Court’s award is
very similar to those in Vanslembrouck3, CSC, and Arroyo. Therefore, the
Court’s award of non-economic damages to the Plaintiffs bears a reasonable
relationship to the philosophy and general trend of these recent cases.
The Defendant argues that the Plaintiffs have presented no expert
testimony to support a finding that Earl Jr. has “the cognitive ability to
appreciate pain, loss of enjoyment of life, inconvenience, physical impairment
or diability,” and that therefore an award of non-economic damages to Earl Jr.
is not supported by the evidence. (Def.’s Mem. on Damages at 3-4, ECF No.
151.) The only case that the Defendant has provided in support of its position
Although the life expectancy used by the jury in Vanslembrouck was greater than the life
expectancy that the Court used in this case, it appears that the plaintiffs in Vanslembrouck
sought, and that the jury awarded, noneconomic damages only to the child. Here, the Court’s
award of noneconomic damages includes noneconomic damages suffered by Earl Jr.’s parents.
is a case decided in 1954 by the Florida Supreme Court. In that case, a fiveyear old boy sustained injuries in a car crash and died “some months later.”
Hooper Const. Co. v. Drake, 73 So.2d 279, 280 (Fla. 1954). The court upheld an
award of damages to the child’s father in the amount of $35,000, but held that
the evidence was not sufficient to support damages in the amount of $20,000
for the child’s pain and suffering because the child was either unconscious or
in a semi-comatose condition for the entire time after the car accident. Id. at
280-81. In more recent decisions, Florida courts have specifically held that
“awards of zero damages for future noneconomic damages are unreasonable
when there is undisputed evidence of permanent injury and a need for
treatment in the future.” See, e.g., Ellender v. Bricker, 967 So.2d 1088, 1093-94
(Fla. Dist. Ct. App. 2007) (citations omitted). Recent appellate cases in Florida
have noted that damages for pain and suffering “are difficult to calculate, have
no set standard of measurement, and for this reason are uniquely reserved to a
jury for their discretion.” Ortega v. Belony, 185 So.3d 538, 539-40 (Fla. 3d Dist.
Ct. App. 2015) (further noting that “[w]hen attempting to quantify a damage
award for pain and suffering in a personal injury case, the trier of fact deals
with the most intangible element of the award.”). Indeed, in Port Charlotte HMA,
LLC v. Suarez, the court noted that the plaintiff “has severe neurological
impairments that render her physically unable to do basic things; she will be
fully dependent on others for the rest of her life and will need 24-hour care,”
yet the court ultimately upheld the jury’s award of noneconomic damages.
2016 WL 6246703 at *1; see also Nimnicht v. Ostertag, 225 So.2d 459, 461
(Fla. 1st Dist. Ct. App. 1969) (upholding jury’s award of damages for pain and
suffering to deceased woman who was either unconscious or semi-conscious
during the 23 hours that she lived following a car crash)
Although one Florida appellate court has noted that if a plaintiff presents
“no proof of physical injury or emotional pain and suffering, courts have been
reluctant to uphold damages awards that exceed six figures,” Ernie Haire Ford,
Inc. v. Atkinson, 64 So.3d 131, 132 (Fla. 2d. Dist. Ct. App. 2011), here there
has been extensive testimony about the extent of Earl Jr.’s severe physical
ailments. Dixon and Reese-Thornton, Sr. testified that Earl Jr. cried constantly
when they brought him home from the hospital. Although the Defendant is
correct that Dr. Tomasovic testified that Earl Jr. is in a near persistent
vegetative state, no expert testified that Earl Jr. is unable to feel pain.
Therefore, the Court finds the Defendant’s argument unpersuasive.
The Court similarly rejects the Defendant’s argument that Dixon and
Reese-Thornton, Sr. are not entitled to noneconomic damages because they
have not been “supporting and loving parents.” (Def.’s Mem. of Damages at 4,
ECF No. 151.) As stated above, the Court finds that Dixon and Reese-Thornton,
Sr. are supporting and loving parents, and that their actions are indicative of
their pain and suffering. Furthermore, the Defendant has not presented any
case law requiring that parents be unfailingly supportive in order to recover
C. Distribution of Future Economic Damages
The final issue with respect to damages is the manner of distribution of
the future economic damages. “The FTCA authorizes courts to craft remedies
that approximate the results contemplated by state statutes.” See, e.g., Dutra v.
U.S., 478 F.3d 1090, 1092 (9th Cir. 2007); Cibula v. U.S., 664 F.3d 428, 433
(4th Cir. 2012). Florida Statute § 768.78 provides alternative methods for
payment of damages awards. Pursuant to § 768.78(2)(a), in any action for
damages based on personal injury or death arising out of medical malpractice,
the payment of future economic losses may be made by: (1) a lump-sum
payment for all damages, with future economic losses and expenses reduced to
present value; or (2) at the request of either party, future economic damages
may be paid by periodic payments. If a party elects to make periodic payments,
the amount of the payments “shall equal the dollar amount of all future
damages before any reduction to present value.” Fla. Stat. § 768.78(2)(b)(1).
The defendant shall be required to post a bond or security or otherwise to
assure full payment of the damages awarded. Fla. Stat. § 768.78(2)(b)(2).
The Defendant has requested to make periodic payments. (See, e.g.,
Notice, ECF No. 139.) However, at the hearing held on March 29, 2017
concerning the Defendant’s request, the Government acknowledged that it
cannot be subjected to ongoing obligations. See Lee v. U.S., 765 F.3d 521, 528
(5th Cir. 2014); Hull by Hull v. U.S., 971 F.2d 1499, 1504 (10th Cir. 1992)
(noting that some courts have interpreted the FTCA to require a lump sum
money judgment); Cibula, 644 F.3d at 433. Therefore, the Defendant has
requested to pay the entire amount of future economic damages, not reduced
to present money value, into the Court Registry, to be distributed on a periodic
basis. (Def.’s Response to Court’s Order, ECF No. 183.) In addition, the
Defendant asserted at the hearing that in the event that Earl Jr. passes away
prior to the end of the life expectancy determined by the Court, any remaining
funds in the Court Registry should revert back to the Government.
Some circuits have held that district courts in an FTCA action can order
a reversionary trust if such an arrangement is in the child’s best interest, or if
the parents or guardians of the child consent to such an arrangement. See,
e.g., Hull by Hull, 971 F.2d at 1505 (holding that the district court had the
inherent authority to order a reversionary trust in an FTCA action if it
determined that it was in the child’s best interest, and noting that the fact that
the child’s legal representative had consented to the trust was “highly
relevant”); Cibula, 664 F.3d at 433-36 (holding that the district court had
authority in an FTCA case to order a reversionary trust and noting that both
parties had urged the district court to fashion a reversionary trust). However,
some district courts have declined to impose reversionary trusts when such
trusts are not provided for by state law and where the plaintiff does not
consent to the reversionary trust. See, e.g., Peterson v. U.S., 469 F.Supp.2d
857, 860 (D. Haw. 2007) (declining to impose a reversionary trust because “not
imposing a reversionary trust comports with the principles of fairness in
allocating the risks between the parties.”); Davidson v. United States Dep’t of
Health and Human Serv’s, No. 7:06-129-DCR, 2007 WL 3231713, at *2 (E.D.
Ky. Oct. 30, 2007) (declining to impose reversionary trust where the plaintiff
did not consent, no evidence was submitted that such a trust was necessary
for the plaintiff’s protection, and state law did not provide for a reversionary
Here, the Plaintiffs have not consented to a reversionary trust.
Furthermore, Florida Statute § 768.78 does not expressly authorize a
reversionary trust. Florida Statute § 768.78 has two subsections. The first
subsection generally applies to any action in which the trier of fact awards
future economic losses in excess of $250,000. Fla. Stat. § 768.78(1)(a). In such
cases, the defendant may elect to pay the future economic losses by periodic
payments. Id. The first subsection specifically states: “if the claimant dies prior
to the termination of the period of years during which periodic payments are to
be made, the remaining liability of the defendant, reduced to present value,
shall be paid into the estate of the claimant in a lump sum.” Fla. Stat.
The second subsection of § 768.78 applies to actions “for damages based
on personal injury or wrongful death arising out of medical malpractice,” and
also provides for the payment of future economic damages by periodic
payments. Fla. Stat. § 768.78(2). However, the second subsection does not
include the provision set forth in the first subsection stating that in the event
that the claimant dies, any remaining liability shall be paid into the estate of
the claimant. See id. Rather, the second subsection is silent on what shall
happen to any remaining liability if the claimant dies prior to the termination of
the period of years during which periodic payments are to be made. The
Government argues that this silence means that any remaining funds should
revert back to it in the event of Earl Jr.’s death.
The Plaintiffs disagree, arguing that the second subsection does not
include other provisions from the first subsection that were clearly intended to
apply to medical malpractice actions. For example, the second subsection does
not include the provision set forth in the first subsection that attorney’s fees
shall be based on the total judgment and shall be paid from past and future
damages in the same proportion. See Fla. Stat. §§ 768.78(1)(f) and 768.78(2).
The Plaintiffs assert that the absence of this provision in the second subsection
cannot mean that the Florida legislature intended that attorney’s fees in
medical malpractice actions be paid differently. Similarly, the Plaintiffs assert
that the absence of a provision concerning the payment of any remaining
liability in the event of the death of the claimant does not mean that the Florida
legislature intended that any remaining future economic damages revert back
to the defendant.
No Florida court has addressed this issue, and the Court notes that it
does not appear that Florida courts typically impose reversionary trusts in
medical malpractice cases. Thus, since the statute does not specifically provide
for a reversionary trust and it is not a remedy routinely provided by Florida
courts, the Court does not find that imposing such a trust is necessary in order
to approximate state law. Since the Government has presented no argument
that a reversionary trust would be in Earl Jr.’s best interest and the Plaintiffs
have not consented to a reversionary trust, the Court declines to impose one.
The Court will, however, allow the Government to make periodic
payments towards its obligations to pay future economic damages. The
Government has offered to pay all future economic damages, not reduced to
present value, into the Court’s registry to be held in the registry of the Court
pursuant to Fed. R. Civ. P. 67. But the core purpose of Rule 67 is “to relieve a
party who holds a contested fund from responsibility for disbursement of that
fund among those claiming some entitlement [to it].” Zelaya/Capital Int’l
Judgment, LLC v. Zelaya, 769 F.3d 1296, 1302 (11th Cir. 2014). Accord
Klayman v. Judicial Watch, Inc., 650 F. App’x 741, 743 (11th Cir. May 27, 2016
(purpose of Rule 67 is to relieve the depositor of responsibility for a fund in
dispute, such as in an interpleader action). The Government wants the money
to be held by the Court so that if it prevails on appeal on one or more of the
issues it will raise on appeal (the cap on damages; the reasonableness of the
amount of damages; or the reversionary trust) it wants the money to be
preserved to be returned to the Government. But, ordering the money to be
placed in a non-special needs trust with a qualified trustee can accomplish the
same goal. And, because the Government has agreed to deposit all of the funds,
not reduced to present value, there is no need for the Government to post a
bond for the periodic payments.
The next issue relating to the periodic payments is the frequency of those
payments. The Government has argued that payments should be made to the
Plaintiff Earl Jr. on a yearly basis. The Court has considered all the evidence in
the case, including the testimony of the Defendant’s life expectancy expert who
has opined that Earl Jr. has a life expectancy of an additional 9 to 12 years. He
also opined that there is a 50% chance that Earl Jr. could live less than 9 to 12
years. With those estimates in mind, the Court orders that the periodic
payments should be made to the Plaintiff Earl Jr. as follows:
First payment to be paid immediately: cost of the first 5 years
Second payment to be paid in five years: cost of the next 4 years
Third payment to be paid in nine years: cost of the next 3 years
Fourth and all subsequent payments: cost of 1 year to be paid each year
The Court awards Plaintiff Earl Jr. the following damages:
Past and future economic damages:
Past and future non-economic damages:
Total damages for Earl Jr.
The Court awards Plaintiff Marla Dixon the following damages:
Past non-economic damages:
Future non-economic damages:
Total damages for Marla Dixon:
The Court awards Plaintiff Earl Reese Thornton the following damages:
Past non-economic damages:
Future non-economic damages:
Total damages for Earl Reese Thornton: $1,100,000
Total damages to Plaintiffs:
The future economic damages shall be paid on a periodic basis as set
forth infra. All other damages shall be payable immediately.
100% of Plaintiff Earl Jr.s’ attorneys’ fees and costs shall be payable
immediately but shall be paid from Earl Jr.’s non-economic damages so that all
of the monies paid for his economic damages will be available to pay for all of
his living and medical expenses.
The Plaintiffs shall prepare a proposed Final Judgment consistent with
this Order and Verdict within 5 days and submit to the Defendants for their
review before submitting to the Court. The proposed Final Judgment shall be
submitted to the Court within 10 days. If the parties cannot agree on the form
of the Final Judgment, each may submit its own proposed Final Judgment
within 10 days.
Done and ordered, at Miami, Florida, on April 28, 2017 nunc pro tunc
to April 17, 2017.
Robert N. Scola, Jr.
United States District Judge
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