Bryant et al v. USA et al

Filing 69

PRETRIAL ORDER. Signed by Chief Judge David R. Herndon on 3/7/13. (klh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CSC, a minor, by his parents and next
friends, PATOYA BRYANT and SEAN
COBBS, and PATOYA BRYANT and
SEAN COBBS,

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Plaintiffs,
v.
UNITED STATES OF AMERICA,
Defendant.

Civil Action No. 10-910-DRH
CJRA Track

FINAL PRETRIAL ORDER
This matter comes before the Court for Final Pretrial Conference held pursuant to
Federal Rule of Civil Procedure 16.
I.

COUNSEL OF RECORD
Plaintiff’s Counsel:

Robert S. Baizer ([e-mail])
Joseph E. Kolar ([e-mail])
BAIZER KOLAR & LEWIS, P.C.
513 Central Avenue, Suite 500
Highland Park, IL 60035
847-433-6677
847-433-6735 (fax)
Defendant’s Counsel:
Nathan E. Wyatt ([e-mail])
Assistant U.S. Attorney
Southern District of Illinois
Nine Executive Drive
1

Fairview Heights, IL 62208
618-628-3700
618-622-3810 (fax)
II.

NATURE OF THE CASE
This is a medical negligence case involving claims by plaintiffs, Patoya Bryant

and Sean Cobbs, that their son Sean suffered a severe brain injury at birth related to an
unreasonable delay in his delivery on July 31, 2009.
The United States of America is the only remaining defendant in this case.
Plaintiffs’ claims against the United States are based on the Federal Tort Claims Act
and relate to the conduct of three obstetricians (all deemed federal employees), all of
whom provided care to Ms. Bryant at Memorial Hospital of Carbondale on July 30-31,
2009, and prenatally as well.
The United States claims that Sean’s brain injury occurred before Ms. Bryant
came to the MHC on July 30, 2009. Thus, any alleged negligence by its deemed
employees was not a proximate cause of his brain injury.

III.

JURISDICTION
A.

This is an action for damages.

B.

The jurisdiction of the Court is not disputed. This Court has subject matter
jurisdiction over the plaintiffs’ tort claims against the United States under
the Federal Tort Claims Act, 28 U.S.C. § 1346(b).

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IV.

UNCONTROVERTED FACTS
The following facts are not disputed or have been agreed to or stipulated to by

the parties:
Obstetricians Involved
1.

In July 2009, Donald Bishop, M.D. was a board-certified obstetrician.

2.

In July 2009, Akua Afriyie-Gray, M.D. was a board-certified obstetrician.

3.

In July 2009, Sridevi V. Panchamukhi, M.D. was a board-certified

obstetrician.
4.

In July 2009, Dr. Bishop, Dr. Afriyie-Gray and Dr. Panchamukhi all had

privileges to practice medicine at Memorial Hospital of Carbondale of Carbondale,
Illinois (MHC). They all provided care at MHC to Patoya Bryant.
Plaintiffs
5.

Patoya Bryant (DOB: 1-21-88) and Sean P. Cobbs (DOB: 10-7-85) are the

biological parents of Sean (a son). SEAN was born on July 31, 2009, at MHC.
Admission to MHC
6.

Patoya came to MHC at about 2:10 a.m. on July 30, 2009, about 37

weeks pregnant with her first child. Patoya told MHC personnel that since 1:00 a.m.,
she had noticed decreased fetal movement. (PX1, p. 107)
7.

MHC nursing personnel placed an electronic fetal heart rate ("FHR")

monitor on Patoya and it started recording her son's heart rate at about 2:23 a.m.
8.

At 2:23 a.m., nursing personnel charted that the FHR monitor showed
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moderate variability, accelerations and no decelerations.
9.

At 3:03 a.m. and 3:20 a.m., nursing personnel again charted that the FHR

monitor showed moderate variability, accelerations and no decelerations.
10.

Dr. Afriyie-Gray reviewed the FHR monitor at 3:15 a.m. At about the

same time, Dr. Afriyie-Gray ordered STAT a fetal biophysical profile (BPP) test. The
BPP test was performed at 4:18 a.m.
July 30, 2009, 4:18 a.m. BPP Test
11.

A BPP test has four ultrasound components: breathing, body movement,

tone and amniotic fluid volume. A fifth component involves a nonstress test of the fetal
heart rate.
12.

For each component, the fetus receives a score of 2 (normal) or 0

(abnormal). Thus, a perfect score on ultrasound components is 8/8. If the heart rate
component is added, a perfect score is 10/10.
13.

The recorded result of the 4:18 BPP test was 8/8.

14.

About 4:38 a.m., nursing personnel told Dr. Afriyie-Gray the BPP score of

8 out of 8.
Initial Plan to Send Patoya Home
15.

At 4:38 a.m., Dr. Afriyie-Gray wrote the following order: “Pt (patient) may

go home. She’s to do fetal kick counts. Have her call office today to see if Dr. Bishop
wants to see her today or tomorrow.” (PX1, p. 115)
16.

At 4:42 a.m., Patoya told MHC nurse, Karen Griffin, she did not feel

comfortable going home. Nurse Griffin decided to keep Patoya at MHC.
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Continued Observation Early Morning of July 30, 2009
17.

At 7:08 a.m., nurse Griffin told Dr. Bishop that Patoya came in for

decreased fetal movement and had a BPP with a score of 8/8. (FHR, p. 30).
18.

At 7:42 a.m. and 8:30 a.m., nursing personnel charted for the first time

that the FHR monitor showed minimal variability and absent accelerations. (FHR, pp.
34 and 40)
19.

At 7:56 a.m., Dr. Bishop reviewed the FHR monitor.

20.

At about 8:30 a.m., Dr. Afriyie-Gray examined Patoya. After the

examination, Dr. Afriyie-Gray wrote a note that provided in part: Normal "BPP but FHT
(fetal heart tones) still not reassuring." Dr. Afriyie-Gray decided to admit Patoya for
observation and continuous fetal monitoring.
FHR Monitor on July 30, 2009
21.

At 0941, 1030, 1119, 1202 and 1352 on July 30, nursing personnel

charted that the FHR monitor showed minimal variability and absent accelerations.
(FHR, pp. 48-78)
22.

At 1558, 1630 and 1649 on July 30, nursing personnel charted that the

FHR monitor showed absent variability and absent accelerations. (FHR, pp. 93-99)
23.

The charting for 1558 on July 30 was the first time absent variability was

noted by nursing.
24.

At 1732 on July 30, nursing personnel charted that the FHR monitor

showed absent variability, absent accelerations and late decelerations. (FHR, p. 104)
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25.

At 1832 on July 30, nursing personnel charted that the FHR monitor

showed absent variability and absent accelerations. (FHR, p. 111)
26.

At 2000 on July 30, nursing personnel charted that the FHR monitor

showed minimal variability, absent accelerations and late decelerations. (FHR, p. 122)
27.

At 2100 on July 30, nursing personnel charted that the FHR monitor

showed minimal variability and absent accelerations. (FHR, p. 129)
Dr. Panchamukhi Review of FHR tracing
28.

At 2118 on July 30, nursing personnel notified obstetrician Dr.

Panchamukhi regarding the FHR tracing. Dr. Panchamukhi reviewed the FHR tracing
at about 2119. (FHR, p. 131)
Continued Nursing Notes of FHR Tracing
29.

From 2200 (10:00 p.m.) on July 30 to 0630 on July 31, nurses continued

to monitor and chart the FHR. During this time, they made ten entries regarding the
FHR. They charted absent variability on seven occasions and minimal variability on
three occasions. (FHR, pp. 136-197)
30.

From 2200 (10:00 p.m.) on July 30 to 0630 on July 31, nurses charted

absent accelerations on eight occasions. They noted a single acceleration on two
occasions. (FHR, pp. 136-197)
31.

For 0500 on July 31, nurses charted absent variability, absent

accelerations and late decelerations. (FHR, p. 186)
32.

No doctor saw Patoya from about 8:30 a.m. on July 30 to about 7:10 a.m.
6

on July 31.
FHR Baseline
33.

At 0303 on July 30, 2009, the baseline FHR was 150 bpm. (FHR, p. 7)

34.

At 0941 on July 30, the baseline FHR was 145 bpm. (FHR, p. 48)

35.

At 0059 on July 31, the baseline FHR was 140 bpm. (FHR, p. 157)

36.

At 0400 on July 31, the baseline FHR was 135 bpm. (FHR, p. 179)

37.

At 0600 on July 31, the baseline FHR was 130 bpm. (FHR, p. 193)

38.

At 0806 on July 31, the baseline FHR was 122 bpm. (FHR, p. 201)

39.

At 0910 on July 31, the baseline FHR was 110 bpm. (FHR, p. 208)
2nd BPP Test

40.

A second BPP test was completed at about 0710 on July 31, 2009. The

score was 2 out of 8.
41.

The first BPP test on July 30 and the second test on July 31 were both

performed by MHC-employed sonographer, Susan Lingle.
42.

At the time of both BPP tests, Ms. Lingle was a Registered Diagnostic

Medical Sonographer with the American Registry for Diagnostic Medical Sonography.
Miscommunication Regarding 2nd BPP Score
43.

A nursing note by MHC nurse Erin Shaw provides in part: "Dr. Bishop at

bedside. BPP completed. Informed of 2/8 result."
44.

Regarding the second BPP score, Dr. Bishop wrote a note at 0730 on July

31, 2009, that provided in part: “FHR c/ (with) absent to minimal variability. BPP 6/10
no breathing."
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45.

In Dr. Bishop's Operative Report (dictated July 31, 2009) for the cesarean

section delivery, he wrote as follows regarding the second BPP score:
When I arrived at hospital this morning at 6:40 a.m., she was getting the
2nd biophysical profile. The ultrasound tech was still present. I believed
that I had been told that the biophysical profile was now 6 of 8 on
ultrasound parameters and was 6 of 10 including the nonreactive NST. I
was told, “There are no breathing movements,” and I thought that there
had been points assigned for the parameters of movement, tone, and
amniotic fluid volume. However, there was a miscommunication and the
actual result on the biophysical was 2 of 10 with no points for fetal
movement, breathing or flexion-extension and 2 points for amniotic fluid.
Under the assumption that we had a more equivocal situation, I
recommended amniocentesis and discussed the risks and benefits in the
context of a biophysical profile of 6 of 10.
Dr. Bishop Examinations After 2nd BPP Test
46.

At 0710 on July 31, Dr. Bishop was at the bedside and discussed with

Patoya an amniocentesis to assess fetal lung maturity.
47.

At about 0720 on July 31, Dr. Bishop was at the bedside and performed

an amniocentesis.
48.

At about 0817 on July 31, Dr. Bishop was at Patoya's bedside discussing

his plan of care for her and her baby.
49.

About 0830 on July 31, Dr. Bishop scheduled a cesarean section for noon

on July 31. He then returned to his office to see other patients.
50.

At about 0910 on July 31, MHC nurse Angela Boatright spoke to Dr.

Bishop by phone and gave him an update on the FHR.
51.

At about 0922 on July 31, the baseline FHR dropped to about 100 bpm.
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52.

Shortly before 0924 on July 31, the FHR dropped to about 60 bpm. Dr.

Bishop was advised by phone of the drop in the FHR and he ordered a STAT cesarean
section delivery.
53.

About 0924, the FHR monitor was disconnected and Patoya was taken to

an operating room for a cesarean section delivery of her baby.
54.

Dr. Bishop rushed back from his office and made the skin incision for the

cesarean section at 0936.
55.

Sean was born at 0938 on July 31.
Sean's Apgar Scores

56.

An Apgar score describes the condition of a newborn at set times after

57.

An Apgar score is based on the following five components: heart rate,

birth.

respiratory effort, muscle tone, reflex and color. For each component, a newborn can
receive a score of 0-2 points. A score of 7 – 10 is considered normal.
58.

Sean's Apgar scores were 0 at one minute; 1 at five minutes; and 5 at ten

minutes.
59.

The 0 score at one minute means Sean had no heart rate, no respirations,

limp tone, no reflex response and blue or pale color at that time.
Test of Cord Blood Gas
60.

At birth, blood was drawn from an artery and vein in Sean's umbilical cord

and tested by the MHC lab. The cord blood pH was 6.822 (arterial) and 7.077 (venous).
At 1013, Sean had a low base excess of -15.
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Prenatal Treatment of Patoya Bryant's Gestational Diabetes
61.

On May 14, 2009, Dr. Bishop gave Patoya a 1-hour gestation diabetes

screen with a result of 157 (normal 65-139).
62.

On June 10, 2009, Dr. Bishop gave Patoya a glucose tolerance test

(GTT). A GTT is a lab test to check how a person's body breaks down sugar. A GTT is
one test used to determine if a person has diabetes.
63.

Patoya's GTT results were:

Glucose fasting:
1 hour:
2 hour:
3 hour:
64.

255H
357H
355H
340H

(65-95)
(65-180)
(65-155)
(65-140)

On July 12, 2009, a urinalysis test for Patoya revealed a glucose level of

300 and ketone of 5.
65.

The GTT and urinalysis test results confirmed Patoya was a gestational

diabetic.
66.

On July 17, 2009, Dr. Bishop discussed insulin with Patoya versus

glyburide for treatment of her gestational diabetes. Glyburide is a pill which is an
alternative to insulin shots.
67.

Dr. Bishop's note of his July 17 visit with Patoya provides:

“Explained need for glycemic control + insulin as 1st line regimen.
Unwilling to give self injections or take them. Discussed glyburide as
possible alternative. Expect better glycemic control c/ pt. being compliant
on glyburide vs noncompliant on insulin. Start 5mg dly.” (SWH22)
68.

After July 17, Patoya took glyburide.

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69.

After Patoya was admitted to MHC on July 30, 2009, she received insulin

shots from MHC personnel.
V.

AGREED TO ISSUES OF LAW
The parties agree that the following are the issues to be decided by the Court:

1.
Did Dr. Bishop and/or Dr. Afriyie-Gray and/or Dr. Panchamukhi violate the
standard of care for an obstetrician?
2.
If the answer to issue 1 is affirmative, were any violations of the standard of care
by Dr. Bishop and/or Dr. Afriyie-Gray and/or Dr. Panchamukhi a proximate cause of
Sean's permanent brain injury?
3.
If the answers to issues 1 and 2 are affirmative, what is the amount of money
which will reasonably and fairly compensate Sean for the elements of damages listed in
section VIII of this order?
4.
Defendant has raised an affirmative defense of contributory negligence regarding
Patoya Bryant’s role in controlling her gestational diabetes.
Plaintiffs view this issue as follows: “Was Patoya Bryant the sole proximate cause of
Sean’s permanent brain injury?”
Defendant views this issue as follows: “Did Patoya Bryant’s own negligence contribute
to Sean’s injuries?”
The parties disagree whether the conduct of Patoya Bryant, who is suing in a
representative capacity, can be used to reduce Sean’s recovery in this case (as
defendant argues) or whether her conduct must be the sole proximate cause of Sean’s
injuries (as plaintiff argues) .

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VI.

WITNESSES
A.

List of witnesses the plaintiffs expect to call, including experts.

Parties, Employees of Parties and Deemed Employees
Patoya Bryant
Sean Cobbs
Donald Bishop, M.D.
Akua Afriyie-Gray, M.D.
Sridevi V. Panchamukhi, M.D.

l.

Mother
Father
Obstetrician
(Deemed federal employee)
Obstetrician
(Deemed federal employee)
Obstetrician
(Deemed federal employee)

Expert witnesses
(FRCP 26(a)(2)(B) expert witnesses)

Theonia K. Boyd, M.D.
Boston, MA
Richard Boyer, M.D.
Salt Lake City, Utah
Bruce Bryan, M.D.
St. Louis
Charles Dietzen, M.D.
Zionsville, IN
Harlan R. Giles, M.D.
Pittsburgh, PA
Stephen Glass, M.D.
Seattle, WA
Charles M. Linke, Ph.D.
Champaign, IL
Michelle L. Murray, Ph.D., RNC
Albuquerque, NM
Jan Klosterman, RN
St. Louis
Thomas Sullivan, Ph.D.
Fairfield, OH

Placental pathologist
Pediatric neuroradiologist
Obstetrician
Pediatric physical medicine
and rehabilitation
Obstetrician/Maternal Fetal
Medicine
Pediatric neurology
Economist
Labor and delivery nursing
& fetal heart rate monitoring
Life care planner
Pediatric neuropsychologist

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2.

Non-expert witnesses.
(FRCP 26(a)(2)(C) witnesses)

Teresa Sykes
Valesta Cobbs
Erin Shaw
Angela Boatright
Susan Lingle
Sandra Fark
Murphysboro, IL
Mindy Birkner
Carlyle, IL
Gail M. Durkota
Carbondale, IL
Jacqueline Gomes
Carbondale, IL
Jacqueline A. Wade
Carbondale, IL
Sadie A. Hunsaker
Carbondale, IL
Nicole D. Roach
Carbondale, IL
Linda A. Bunselmeyer
Carbondale, IL
Cirilo Sotelo-Avila, M.D.
St. Louis

B.

Patoya Bryant's mother
Father Sean Cobbs' mother
MHC labor and delivery nurse
MHC labor and delivery nurse
Ultrasound technician at MHC
Sean’s development therapist
Sean’s occupational therapist
Sean’s speech therapist
Sean’s physical therapist
Sean's speech therapist
Sean's speech therapist
Sean's physical therapy
assistant
Sean's occupational therapist
Pathologist
(placental pathology)

List of witnesses defendant expects to call, including experts:
1.

Parties and Deemed Employees

Patoya Bryant
Sean Cobbs
Donald Bishop, M.D.
Akua Afriye-Gray, M.D.
Sridevi V. Panchamukhi, M.D.

Mother
Father
Obstetrician (deemed
employee)
Obstetrician (deemed
employee)
Obstetrician (deemed
employee)

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2.

Expert witnesses.

Allison Cahill, M.D.
St. Louis, MO
Harvey J. Kliman, M.D.
Woodbridge, CT
(by deposition)
Gordon Sze, M.D.
New Haven, CT
(by deposition)

Obstetrician/Maternal Fetal
Medicine
Pathology

Thomas R. Ireland
St. Louis, MO
Shay Jacobson, RN
Burr Ridge, IL

Economist

3.

Neuroradiology

Life care planner

Non-expert witnesses.

Thomas Geller

Erin Shaw
Angela Boatright

Pediatric Neurology
(treating); Cardinal Glennon
Children’s Hospital
MHC Nurse
MHC Nurse

Susan Lingle

MHC Nurse

[C.
Rebuttal Witnesses. The plaintiff may call rebuttal witnesses and
the defendant may call sur-rebuttal witnesses as may be necessary,
without prior notice thereof to the other party.]

VII.

EXHIBITS
See attached Exhibit Stipulation.

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VIII.

DAMAGES
Plaintiffs' Itemized Statement of All Damages
Element
Lower bound
Upper bound
Diminished earnings capacity
(High school education)
$1,416,203
$2,131,884
or
(College education)
$2,586,385
$3,964.866
Life care plan
(Home Care)
$10,312,607
$15,155,881
or
(Facility Care)
$7,841,243
$11,099.750
Disfigurement
Disability or loss of normal
life
Past and future pain and
suffering

The Defendant disputes these damages.
IX.

BIFURCATED TRIAL
The parties do not want a bifurcated trial.

X.

TRIAL BRIEFS
Trial briefs will be filed no later than June 15, 2013.

XI.

LIMITATIONS, RESERVATIONS AND OTHER MATTERS
A.

Trial Date. Trial is set for the week of July 15, 2013.

B.

Length of Trial. The probable length of trial is 10 days. The case will be
listed on the trial calendar to be tried when reached. The case will be a
bench trial.

C.

Number of Jurors. Not applicable.
15

D.

Voir Dire. Not applicable.

E.

Motions in Limine. Motions in limine shall be filed no later than twenty
(20) days before the Final Pretrial Conference. Responses, if any, shall be
filed within ten (10) business days thereafter. Oral argument on motions
in limine will only be allowed in exceptional circumstances and will be
scheduled when the Court’s calendar permits. Due to the nature of
motions in limine, failure to file said motions by this deadline generally will
not prejudice a party’s ability to move in limine prior to the jury’s
impanelment. Later-filed motions, however, may be stricken if their
consideration would delay the timely start of the trial.

F.

Jury Instructions. Not applicable.

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IT IS ORDERED that the Final Pretrial Order may be modified at the trial of the
action, or prior thereto, to prevent manifest injustice or for good cause shown. Such
modification may be made either on motion of counsel or sua sponte by the Court.

Digitally signed by
David R. Herndon
Date: 2013.03.07
15:34:28 -06'00'

DATED: March 7, 2013

DAVID R. HERNDON, CHIEF JUDGE
UNITED STATES DISTRICT COURT
APPROVED AS TO FORM AND SUBSTANCE:
s/Robert S. Baizer
s/Joseph E. Kolar
_____________________________________
ATTORNEY FOR PLAINTIFFS
s/Nathan E. Wyatt
_____________________________________
ATTORNEY FOR DEFENDANT

NOTE:

This order should be submitted as a proposed order directly to
chambers ([e-mail]) with counsel’s s/
signatures provided.

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