TEMPLE UNIVERSITY HOSPITAL, INC. v. THE UNITED STATES OF AMERICA
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE MARK A. KEARNEY ON 4/14/17. 4/14/17 ENTERED AND COPIES E-MAILED.(kw, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
TEMPLE UNIVERSITY HOSPITAL,
THE UNITED STATES OF AMERICA
: CIVIL ACTION
: NO. 16-1073
April 14, 2017
FINDINGS of FACT and CONCLUSIONS of LAW
The Federal Torts Claims Act requires we, like a jury, resolve fact disputes and evaluate
witness credibility when a hospital sues the United States seeking indemnity or contribution
towards a multi-million dollar state court settlement based on alleged medical negligence by a
labor and delivery doctor deemed to be a federal employee. Following a bench trial, we evaluate
the federal labor and delivery doctor’s alleged negligence for delivering a baby with several birth
injuries. We find, based on a preponderance of the evidence, both the doctor and hospital nurses
equally share in the negligence creating an increased risk of harm during hours of inaction,
requiring the United States contribute $4,000,000 to the $8,000,000 settlement paid by the
hospital to the patients to resolve the state court negligence case.
Our analysis begins with a treating obstetrician referring his 37-week pregnant patient to
the Temple University Hospital emergency room for immediate evaluation of decreased fetal
movement. Upon the expectant mother arriving midday, the hospital’s nursing staff and its labor
and delivery doctor noted several non-reassuring factors related to the decreased fetal
movements but the doctor failed to immediately attend to them. After three hours of
communication breakdowns between the professionals and after the labor and delivery doctor
began and finished a vaginal delivery and an elective caesarian delivery on other patients, the
labor and delivery doctor turned his attention to perform a now urgent cesarean upon the mother
and shortly thereafter delivered the baby with decreased fetal movements born with several birth
The patients sued the hospital in Philadelphia County state court. After two years of
fact and expert discovery leading up to a jury trial with the hospital anticipating liability
exceeding $50 million, the hospital settled with the mother and child for $8 million.
The hospital strategically decided not to add the treating labor and delivery doctor as a
deemed federal employee in the Philadelphia County jury trial, but after settling for $8 million,
now sues the United States alleging the labor and delivery doctor is the only responsible party
and the United States must reimburse it for some or all of its settlement payment, plus attorney’s
fees and interest, under contribution and common law indemnity theories.
Evaluating the credibility of fact and expert witnesses, we now issue post-trial findings
under Federal Rule of Civil Procedure 52(a)(1) in support of our accompanying Order entering
judgment in favor of the hospital and against the United States for $4,000,000. We find the
United States’ deemed federal employee equally liable for breaching a standard of care of a labor
and delivery doctor and causing the birth injuries. We order the United States reimburse 50% of
the reasonable $8 million settlement of a substantial birth injury case awaiting a jury in the
Philadelphia Court of Common Pleas. We have no basis for directing the payment of attorney’s
fees, pre-judgment interest or costs as part of our finding the United States partially responsible
on a contribution claim.
I. Findings of Fact
On February 23, 2012, minor J.M., by and through his parent (collectively
“Patients”), sued Temple University Hospital, Inc. (“Hospital”) in the Philadelphia County Court
of Common Pleas for negligence arising from the obstetrical, labor, and delivery medical care
provided to J.M. and his mother S.M. in connection with J.M.’s birth at the Hospital on August
3, 2009 (the “Underlying Action”).1
Patients, represented by experienced catastrophic injury trial counsel, initially
demanded $100 million in settlement.2
J.M. is diagnosed with global development delay, spasticity, seizure disorder,
dysphagia, quadriplegic pattern cerebral palsy, microcephaly, and visual impairment.3 J.M.’s
neurological disabilities are permanent.4
The Hospital estimated J.M.’s expected future medical costs at $140,000
annually. Patients’ life care expert estimated J.M.’s expected future medical costs at $275,000
annually, and assumed J.M.’s life expectancy to age 76.8, the normal life expectancy for a male
born in 2009.5
By 2014, the Hospital’s economic experts estimated the present value of J.M.’s
life care plan, designed by Patients’ life care expert, to be between $8.6 and $18 million.6
Considering J.M.’s potential life expectancy, J.M.’s predicted future medical
costs, the potential economic and non-economic damages such as lost earnings and hedonic
damages and inflation, the Hospital’s experienced defense counsel in the Underlying Action
advised it could face a verdict of $50 million or more.7
After the close of discovery, with a trial ready date and after deliberations with its
Board, the Hospital settled the Underlying Action for $8 million.8
The Hospital, having elected to not sue the treating physician in the same suit,
then turned to sue the treating labor and delivery doctor Dr. Clinton Turner, a deemed employee
of the United States. Dr. Clinton Turner served as the Hospital’s attending obstetrician on the
day of J.M.’s birth, rendering medical care and treatment to S.M. and J.M.9
At the time of J.M.’s birth, Delaware Valley Community Health Center
(“DVCHC”) employed Dr. Turner.10 Neither Dr. Turner nor DVCHC provided care to S.M. or
her infant J.M. before the August 3, 2009 birth.11
The parties agree DVCHC is a federally funded health center covered under the
Federal Tort Claims Act by the Secretary of Health and Human Services.12
The parties also agree Dr. Turner is a deemed federal employee acting within the
scope of his employment with the Public Health Service.13
In August 2009, the Hospital employed all members of the Labor and Delivery
Team providing medical care to S.M.14
At all times relevant to S.M.’s and J.M.’s treatment, Dr. Turner was the Hospital’s
ostensible agent who held Dr. Turner out as its employee.15
The July 21, 2014 settlement of the Underlying Action extinguished any and all
liability of Dr. Turner to Patients.16
The Hospital timely submitted a Notice of Claim of the Underlying Action under
the Tort Claims Act to the United States on August 17, 2015. The United States denied the
Hospital then sued the United States seeking contribution, contractual indemnity,
and common law indemnity.18 We dismissed the Hospital’s contractual indemnity claim before
The Underlying Action: S.M. presents at Triage at Noon.
On August 3, 2009, at 37 weeks gestation, S.M. met with her obstetrician, Dr.
Stanley Santiago, reporting decreased fetal movement.19
Dr. Santiago referred S.M. to the Hospital for evaluation in the Labor and
Dr. Santiago filled out a Consultation Request form addressed to Triage
requesting an “NST” and “AFI” for “complaints of decreased fetal movement.”21 “NST” means
non-stress test and “AFI” means amniotic fluid index.22
Electronic fetal monitoring is the equivalent of a non-stress test.23
The amniotic fluid test provides clinicians with information about the fluid status
around the fetus. A normal amount of amniotic fluid indicates a degree of fetal health; an
abnormal amount of amniotic fluid suggests a possible problem with the health of the fetus or the
mother’s water may have broken.24
An amniotic fluid test is performed by ultrasound and, in addition to gathering
information regarding the status of amniotic fluid, also tells the clinician the status of the
mother’s uterus, the baby’s movement, the tone of the baby, and breathing movements of the
baby.25 Fetal movement, fetal breathing, and fetal tone are all components of a biophysical
profile, an assessment tool for fetal health.26
S.M. registered with Triage at 12:08 p.m.27
The Triage registrar completed the top part of the Labor and Delivery Physicians
Triage Record (“Triage Record”) noting “CC: dec. [decreased] fetal movement.”28
In August 2009, the Hospital staffed its Triage with two registered nurses, a first
year medical resident, and a nurse practitioner, considered a mid-level clinician.29 Two attending
physicians staffed the Labor and Delivery unit, with patients assigned to one of two “teams.”30
Nurse Practitioner Sarah Daukaus, a Hospital employee or agent, completed the
History of Present Illness (“HPI”) section of the Triage Record. 31 Ms. Daukaus noted S.M.
“presents with decreased fetal movement. Denies leakage of fluid or vaginal bleeding.”32
Registered nurses employed by, or agents of, the Hospital set up and monitored
bedside fetal monitoring.33
The Hospital began fetal heart rate monitoring at 12:19 p.m.34
At 12:23 p.m., Nurse Omalabake Fadeyibi noted decreased fetal movement on the
OB Nursing Triage form.35
At 12:30 p.m., Nurse Fadeyibi noted a baseline fetal heart rate of 135 beats per
minute (“BPM”), irregular contractions, no accelerations or decelerations of the fetal heart rate,
and absent long term variability in the fetal heart rate.36
Nurse Practitioner Daukaus noted on the Triage Record fetal heart tones (“FHTs”)
In August 2009, the term “non-reassuring” meant the heart rate pattern raises a
concern the fetus may be in distress; in other words, the heart rate does not “reassure” the
clinician of the fetus’ well-being.38
The term “non-reassuring,” no longer used to describe fetal heart rates, is
considered an imprecise term used to describe a wide variety of fetal heart tracings. The term
“non-reassuring” does not necessarily mean an ominous tracing and does not necessarily mean a
tracing needing immediate delivery; it could mean either of these situations, but it could also
mean a tracing requiring further evaluation. It is generally not considered “good,” but does not
necessarily indicate “bad.”39
Dr. Turner testified although the term "non-reassuring" is broad, he understood
S.M. as "having some problems with her heart tones," but he didn't "know exactly what they
Dr. Turner admitted "non-reassuring" could include decelerations and late
decelerations, and he expected the nursing staff to report decelerations but did not receive such
A fetal heart rate tracing looks at the base line heart rate and the variability in the
heart rate. An absence of long term variability in the heart rate is generally considered an
unfavorable sign of fetal well-being.42
While a fetal heart monitor records the heart rate of the fetus, it is also recording
the mother’s uterine contractions and the effect of the contractions on the fetal heart rate. A
“deceleration” is a fall in the fetal heart rate. “Late” decelerations are an unfavorable sign and
indicate a drop in fetal oxygen with a contraction and a resulting drop in fetal heart rate.43
“Accelerations” are an increase of the heart rate with fetal movement.
Acceleration with fetal movement is considered a reassuring finding.44
Decreased fetal movement is an indication of impending problems, as fetuses
experiencing hypoxemia - a decrease in oxygen - will stop moving in response to the condition.45
Nurse Practitioner Daukaus testified she considered the fetal heart “non-
reassuring” because she found no accelerations in the fetal heart rate; found decelerations in the
fetal heart rate; and found minimal variability of the fetal heart rate. However, she did not make
a note of these specific findings in the medical record.46
On the assessment and plan (“A/P”) section of the Triage Record, Nurse
Practitioner Daukaus noted the non-stress test and amniotic fluid index as “cancelled” despite Dr.
Santiago’s request for these tests.47
The Hospital performed the equivalent of a non-stress test on S.M. while in
Triage, as requested by Dr. Santiago, when it placed S.M. on the fetal monitor.
The Hospital did not perform an amniotic fluid index test in Triage. Nurse
Practitioner Daukaus did not perform the amniotic fluid test in Triage because of Dr. Turner’s
later decision to admit S.M., and she assumed the test would be performed by in Labor and
Nurse Practitioner Daukaus did not note in the medical record Dr. Turner
cancelled the amniotic fluid test.49
Dr. Turner denies telling Nurse Practitioner Daukaus to cancel the amniotic fluid
Nurse Practitioner Daukaus communicated with Dr. Turner about S.M.’s
decreased fetal movement and placement on the fetal monitor and her assessment the strip
Nurse Practitioner Daukaus noted “reviewed with Dr. Turner” on the Labor and
Delivery Triage Record.52
Nurse Practitioner Daukaus completed a four-page Obstetrics History and
Physical Examination (“Obstetrics H & P”) form at 12:55 p.m.53
Nurse Practitioner Daukaus started the Obstetrics H & P form while S.M. was still
in Triage noting: “decreased fetal” under History Presenting Illness; “NST FHR non-reassuring”
under the Physical Examination section.54
Nurse Practitioner Daukaus completed the Assessment and Plan of Care section
of the Obstetrics H & P form.55 The assessment noted “reduced fetal movement” and a “nonreassuring strip” and the plan included admission in anticipation of delivery, electronic fetal
monitoring, and administration of intravenous (“IV”) fluids.56
At some point between 12:19 and 12:55, Nurse Practitioner Daukaus checked a
box on the Obstetrics H & P form indicating she notified the attending physician, Dr. Turner.57
communications with Dr. Turner.
We find Dr. Turner spoke to Nurse Practitioner Daukaus no later than 12:55 p.m.
about S.M.’s complaint of decreased fetal movement and assessment of non-reassuring fetal
monitoring strips and, based on his conversation with Nurse Practitioner Daukaus, Dr. Turner
decided to admit S.M. into the Hospital’s Labor and Delivery unit.58
Nurse Practitioner Daukaus did not have the authority to admit patients.59
Dr. Turner does not recall the conversation he had with Nurse Practitioner
Daukaus or whether the conversation occurred by phone or through a nurse. Dr. Turner assumes
a conversation occurred based on Nurse Practitioner Daukaus’ note in the medical record. 60
Dr. Turner admitted if he does not hear from either the nursing staff or residents,
he assumes either “everything is okay” or the evaluations are not yet completed and the staff has
not gotten back to him.61
Dr. Turner testified in the absence of hearing otherwise, he “just go[es] right on
by doing [his] daily activities.”62
When asked why he did not call for a cesarean section when told about S.M.’s
fetal heart tracings and decreased fetal movement, Dr. Turner testified a non-reassuring fetal
heart tracing does not “tell [him] a lot” and, had he been told of repetitive late decelerations and
no variability, “that’s a different thing.”63
Even if he knew S.M. had experienced recurrent late decelerations, he would still
employ interventions to try to resolve the situation before performing a cesarean section.64
When Dr. Turner learned of S.M.’s non-reassuring fetal heart tracing at the time
of admission, he did not ask anyone for the basis of the non-reassuring assessment because he
expected the residents to evaluate S.M. and give him updates on her status and assumed other
staff members would keep him up to date.65
Dr. Turner delivered Patient #26—not J.M.—by operative vaginal birth at 1:04
P.M.66 Dr. Turner estimated he went to the delivery room for Patient # 26 at approximately
12:45 or 12:50 p.m.67 Dr. Turner estimated he stayed with Patient # 26 for another thirty to
thirty-five minutes after the 1:04 p.m. delivery.68
Dr. Turner decided to admit S.M.69
The Hospital, at Dr. Turner’s order, admitted S.M. to Labor and Delivery at 1:22
We find Dr. Turner’s explanations for his lack of personal attention to S.M. upon
her presentation during her seventy-plus minutes at the Hospital are not entirely credible.
Having evaluated the expert testimony, Dr. Turner’s standard of care must include attention to
patients presenting with exceptional concerns expressed by the referring obstetrician and the
We do not find the standard of care allows a doctor to transfer his entire
responsibility, described by the United States’ expert as “captain of the ship”, entirely to nurses
and residents. We find it much more likely he did not view S.M.’s non-reassuring decelerations
as requiring his expertise absent someone telling him to evaluate S.M.
B. Post-admission treatment also lacks communication and attention.
Once Dr. Turner admits a patient to Labor and Delivery, the Hospital’s Labor and
Delivery nurses and professionals place the patient on a fetal monitor and the nursing staff is
responsible for monitoring and regularly assessing the fetal monitor.71
The Hospital’s nursing staff is expected to check the fetal monitoring strips every
30 minutes and every 10 minutes when a patient is close to delivery. The Hospital expects nurses
to document fetal heart monitoring results every 30 minutes and to report a problem to a
physician or a resident if a problem is identified. Reporting to a physician may an oral report, but
an oral report must be noted in the record.72
The standard of care in documenting fetal monitoring strips requires an
assessment and documentation to accurately reflect the tracing in the medical record, and such
documentation should be made every 30 minutes. The standard of care requires documentation
every 15 minutes where there is a non-reassuring strip. 73
Nurses are expected to document the fetal heart rate, the character of the fetal
heart rate, whether there are accelerations or decelerations, the variability, and the patient’s
response to interventions.74
The Hospital’s policy on managing non-reassuring fetal heart rate tracing
provides a nurse “may initiate specific treatment” in response to a non-reassuring fetal heart
tracing. The treatment is referred to as nursing “interventions” and includes repositioning the
patient, oxygen by facemask, and increasing I.V. fluids.75
The Hospital’s nursing staff may initiate interventions without physician orders.76
The Hospital’s policy requires documentation of: the type of deceleration;
interventions administered and the response or lack of response in the fetal heart tracing;
physician notification and his/her response; and any planned treatment for the patient.77
If a nurse finds a non-reassuring strip, and interventions have not improved the
situation, nurses are expected to notify a physician and continue using the interventions.78
Upon admission to Labor and Delivery, Gul Shabon, R.N. became S.M.’s primary
nurse.79 Nurse Shabon restarted the fetal monitor at 1:24 p.m.80
Nurse Shabon’s responsibilities included monitoring fetal heart tracings, reporting
abnormalities, and performing interventions where monitoring showed abnormalities.81
Fetal heart rate monitors are visible on computer monitors posted throughout the
Labor and Delivery Unit, including at nursing stations and physicians’ break room.82 In the first
thirty minutes after admission to Labor and Delivery, Nurse Shabon found no improvement in
the fetal heart tracings.83 Nurse Shabon does not remember if she told the charge nurse about the
fetal heart strips.84
Nurse Shabon documented only one deceleration despite other decelerations on
At 2:10 p.m., Nurse Shabon noted in the medical record Dr. Erin Myers, a first-
year resident, obtained consent forms from S.M.86 Dr. Myers did not examine S.M. or review
the fetal heart tracings.87
Nurse Shabon does not remember whether she notified a physician of S.M.’s
status, but recalls two residents, Dr. Myers and Dr. Espaillat, came into S.M.’s room. Nurse
Shabon does not remember what she said to Dr. Meyers or Dr. Espaillat. Nurse Shabon did not
note in the medical record any abnormal fetal heart tracings.88
S.M. waited for Dr. Turner’s direction.89
As of 1:30 p.m., at the conclusion of Patient # 26’s case, Dr. Turner had not
Dr. Turner testified he had no reason to examine S.M. based on the information
he received from nursing staff.91
As of 1:35, Dr. Turner knew of S.M.’s admission, a history of some period of
time of decreased fetal movement, and a non-reassuring fetal heart tracing.92
Dr. Turner testified he expected the nursing staff in Labor and Delivery to take
interventions such as administering I.V. fluids, providing oxygen, and changing the position of
the patient to improve fetal heart rate.93
Dr. Turner testified he expected the nurses to keep him updated.94
For reasons never credibly explained, the professionals and Dr. Turner moved to
an elective surgery while S.M. waited for care.95
After leaving the delivery of Patient # 26, and without visiting or assessing S.M.,
Dr. Turner chose to begin with Patient # 27, an elective cesarean section.96
At 1:35 p.m., Dr. Turner went into the operating room on the Labor and Delivery
unit to deliver Patient # 27, signing a “time out protocol.”97 As the name suggests, a “time out
protocol” requires the physician to take a “time out” before the procedure to verify the patient
and proper procedure to be performed.98
Dr. Turner testified he estimates he “scrubbed in” for Patient 27’s cesarean
section around 2:00 p.m.99 He delivered Patient # 27’s baby at 2:34 p.m.100 A third-year resident,
Dr. Zandomeni, assisted Dr. Turner with the delivery of Patient # 27.101
Between the 1:35 p.m. time-out for Patient # 27 and before “scrubbing in” around
2:00 p.m., and before Dr. Espaillat performed the biophysical profile on S.M., Dr. Turner
testified he could have gone to S.M.’s room, located close by the operating room, and could have
pulled up S.M.’s fetal heart monitoring to review.102
Dr. Turner testified he had no reason to do so because the staff had not reported
anything to him.103
We find Dr. Turner’s “no reason” mantra to lack credibility given the facts told to
Dr. Turner upon admission. Dr. Turner’s attempt to shift all the blame to the Hospital’s nursing
staff and other professionals belies his central role. He is the treating physician and not just there
to react to stimuli from others who point him in a certain direction. He must take responsibility
and prioritize patients. The Hospital shares in this obligation but the treating physician must
fulfill his standard of care.
Dr. Turner believed the “overwhelming majority” of non-reassuring fetal heart
tracings correct themselves with intervention and, having no information from the residents or
nursing staff, assumed S.M.’s status improved or evaluations were not yet complete.104
There is no documentation in the medical record of physician notification after
12:55 p.m., and there is no documented evidence of repositioning S.M. or administering S.M.
With respect to physician notification, there is nothing in the medical record from
12:55 p.m. to 2:50 p.m. of any notification to a physician. 106 We have no understanding why the
Hospital’s nursing staff did not notify Dr. Turner of S.M.’s condition.
Dr. Luis Espaillat, a second-year resident in obstetrics and gynecology, arrived on
the Hospital’s Labor and Delivery unit in the early afternoon and began reviewing fetal monitor
Dr. Espaillat reviewed S.M.’s fetal monitor strips on the computer monitor
located in the residents’ lounge. After reviewing S.M.’s fetal monitor strip, Dr. Espaillat went to
S.M.’s room to examine her because he “didn’t like her tracing” and thought “it was a little too
flat,” explaining he did not see “a lot of variability” in the tracing of the fetal heart rate.108
At 2:50 p.m., the medical record shows Dr. Espaillat performed a biophysical
profile by ultrasound on S.M.109 As a second-year resident, Dr. Espaillat had the authority to
perform a biophysical profile without first getting permission from an attending physician.110
A biophysical profile examines five different components: fetal movement; fetal
breathing; amniotic fluid index; gross movements; and the non-stress test which is the fetal heart
tracing strip. Each component is given a score of zero if abnormal, or a score of 2 if normal. The
scores for each component are added up on a scale of 8 or 10; 10 if the non-stress test (fetal heart
tracing) is a component, 8 if the non-stress test is not a component.111
S.M.’s biophysical profile resulted in a score of 2. Dr. Espaillat found only the
amniotic fluid test normal, for a score of 2; all other components received a zero.112
Dr. Espaillat became concerned about possible acidosis and the lack of oxygen,
both of which are detrimental to the health of a fetus.113
As a second-year resident, Dr. Espaillat did not have the authority to decide
whether S.M. should be delivered.114
At some point between 2:50 p.m., when he began the biophysical profile, and
3:10 p.m., when he entered a note on the medical record, Dr. Espaillat reported his findings from
the biophysical profile to Dr. Turner who, at that time, was in the delivery room with Patient #
Dr. Turner admitted the score of 2 on S.M.’s biophysical profile concerned him
and is an abnormal finding, but he still wanted additional information including talking to S.M.
and examining her to gather more details and to review the monitor strips himself.116
Dr. Turner told Dr. Espaillat to start Pitocin to prepare S.M. for delivery and he,
Dr. Turner, would examine the patient when he finished with Patient #27.117 Dr. Turner first
testified he remembered discussing only the biophysical profile results with Dr. Espaillat, but
then testified he did not tell Dr. Espaillat to start Pitocin.118 We find Dr. Turner’s lack of
attention renders his credibility lacking. Dr. Espaillat recalled a direction to start Pitocin to begin
the delivery process.
Although his concern level rose after speaking to Dr. Espaillat, Dr. Turner did not
tell Dr. Espaillat to locate another attending physician.119 Dr. Turner testified he did not need to
tell Dr. Espaillat to contact the other attending physician because “that’s a decision he can make”
and, if Dr. Espaillat felt S.M. needed immediate intervention, he could have gone to the other
attending physician on the unit as “residents routinely go to the other attending.”120
At 3:10 p.m., Dr. Espaillat entered a note on the medical record recording the
results of the biophysical profile, notice to Dr. Turner, the plan to start Pitocin for the induction
of labor ordered by Dr. Turner, and the readjustment of the fetal heart monitor.121
There is nothing in the medical record evidencing communication to Dr. Turner
regarding S.M.’s condition between the time Nurse Practitioner Daukaus spoke with Dr. Turner
by 12:55 p.m. and the time Dr. Espaillat reported his findings to Dr. Turner sometime after 2:50
p.m. and before 3:10 p.m.
Dr. Turner remained with Patient # 27 to close the incision, and did not ask Dr.
Zandomeni to close because, as a third-year resident, he felt she needed help to close.122
Dr. Turner estimated Patient # 27’s cesarean section ended at 3:30 p.m.123 Dr.
Turner testified S.M.’s biophysical profile concerned him, but he did not consider it a “dire
emergency” and he felt he could wait until he finished with Patient # 27.124
C. Dr. Turner attends to S.M. almost three hours after knowing of her
decelerations and decreased fetal movement.
Dr. Turner estimated he went to see S.M. for the first time at 3:40 p.m. 125 Dr.
Turner reviewed the fetal heart monitor strips and upon review of the entire tracing, observed
decreased variability and late decelerations.126
These fetal strips were available to Dr. Turner on monitors on the Labor and
Delivery unit all afternoon.127
Dr. Turner’s examination revealed S.M. was not in active labor, but he discovered
meconium, a sign of distress in the baby.128
The medical record shows S.M. in the operating room at 3:56 p.m. to begin
administration of anesthesia.129
At 4:00 p.m., Dr. Turner entered a note on the medical record of S.M.’s admission
for decreased fetal movement and non-reassuring fetal heart rate and for delivery by cesarean
Dr. Turner delivered baby J.M. by “urgent” cesarean section at 4:31 p.m.131
Dr. Turner never explained why this 4:31 p.m. cesarean section needed to be
“urgent,” at least as described by the Hospital staff in the admittance register.
Dr. Turner did not request assistance or ask any other physician or healthcare
professional at the Hospital to find another physician to evaluate, examine, or deliver S.M.132
Upon birth, J.M. suffered from multiple permanent neurological disabilities.133
D. Patients’ malpractice claim in Philadelphia Court of Common Pleas.
The Patients wanted to know whether medical negligence caused any or all of
J.M. permanent disabilities. They retained Thomas J. Duffy, Esquire, a trial lawyer with
experience in birth injury cases in the Philadelphia Court of Common Pleas.
Patients sued the Hospital for negligence in the Philadelphia Court of Common
Pleas on February 23, 2012.
The Hospital also retained experienced defense counsel. Its outside defense
counsel recommended a settlement in this case, estimating a possible verdict exposure in the
Philadelphia County Court of Common Pleas as high as $50 million.134
Hospital decided not to sue Dr. Turner in the same case brought by the Patients.
The Hospital did not join Dr. Turner in the Underlying Action, triggering removal to federal
court, for a number of reasons: the difficulty in managing a bench trial for Dr. Turner as a
deemed federal employee versus a jury trial on the claims against the Hospital; and, based on its
experience involving the United States defending deemed federal employees, the Hospital’s
concern it would be in a “two front” battle, defending against the Patients’ claims and the United
States’ anticipated cross-claim including joining other Hospital personnel not named in the
In the two year history of the Underlying Action, the Hospital assessed the case
and identified difficulties in defending the case including the care received by S.M. before
delivery; causation, including a concern regarding continued hypoxic injury to J.M.; the nature of
J.M.’s injuries and resulting costs of care; the value of lost life pleasure to J.M.; and, concerns
regarding the Hospital’s experts at trial.136
As to the development of its causation defense, the Hospital’s experts could not
rule out ongoing hypoxia contributing to J.M.’s injury from the time of S.M.’s presentation to
until delivery. It also faced difficult questions regarding the adequacy of another expert, Dr.
Phelan, challenged in other medical malpractice actions.137
Another of the Hospital’s experts in the Underlying Action opined the results of
the biophysical profile showed J.M. came to the Hospital with evidence of prior neurologic
injury; the results of the biophysical profile required delivery, but not an urgent cesarean section,
characterizing the status of fetus as a stable situation indicative of a neurologically injury child;
Dr. Turner’s actions were within the standard of care; J.M. did not deteriorate from the time S.M.
arrived at the Hospital to the time of delivery; and there is no evidence on the fetal monitor strip
delivery earlier than 4:31 p.m. would have had any different neurologic outcome.138
The Hospital had an additional concern about Dr. Espaillat’s 3:10 p.m. progress
note missing from the original medical record. After J.M.’s delivery and before the medical
record left the Labor and Delivery unit, Dr. Turner made copies of certain portions of the chart,
including Dr. Espaillat’s progress note. For reasons unclear on the record before us, the Hospital
never located the original of Dr. Espaillat’s progress note, and only received a copy of it when
Dr. Turner’s attorney in the Underlying Action produced it in discovery. 139 Dr. Turner does not
deny asking a clerk to make a copy of S.M.’s medical record.140
Evaluation of expert testimony on the three main defenses.
The United States raised three main substantial defenses during our non-jury trial:
Dr. Turner did not deviate from a standard of care; Dr. Turner did not cause the damage either
because the birth injuries existed before Dr. Turner’s involvement or the Hospital’s nurses
caused the damages and not him; and, the Hospital overpaid to resolve the state court case given
J.M.’s potential life expectancy.
A. Dr. Turner’s standard of care.
Hospital experts Drs. Manning, McHarg and Elliott.
The Hospital’s first expert Dr. Frank Manning is board certified in obstetrics and
gynecology and maternal fetal medicine.141 According to the United States’ expert, Dr. Manning
invented the biophysical profile used by Dr. Espillat.142
Dr. Manning opined S.M.’s presentation with a history of decreased fetal
movement and findings of decreased fetal movement and abnormal fetal tracing on admission
created an obstetric emergency requiring intervention by Dr. Turner as the attending
Dr. Manning opined Dr. Turner had an obligation to see S.M. and determine her
immediate management including the degree of fetal compromise, whether delivery should
occur, and how the baby should be delivered, and, if Dr. Turner could not see S.M. at that time,
to arrange for another doctor to see her.144
Dr. Manning opined the information on which Dr. Turner had an obligation to act
became available to Dr. Turner shortly after S.M. arrived at the Hospital when Nurse Practitioner
Daukaus assessed S.M. and spoke to Dr. Turner no later than 12:55 p.m.145
Dr. Manning opined Dr. Turner’s failure to assess S.M. and make decisions
regarding her management at 12:55 p.m. is a breach of the standard of care.146
Dr. Manning disagreed with the United States’ expert, Dr. Christian Pettker, on
the standard of care. Dr. Manning disagreed Nurse Practitioner Daukaus failed to give Dr. Turner
information. Dr. Manning opined Dr. Turner failed to act on the information.147
The Hospital also relied upon Dr. Malcolm McHarg’s expertise. He is board
certified by the American Academy of Psychiatry and Neurology and qualified as an expert in
Dr. McHarg opined J.M.’s neurologic injuries were caused by low oxygen and
low blood flow before birth, and the delay in delivering J.M. increased the risk of harm.149
Dr. McHarg opined J.M.’s injury “could have and probably did occur prior” to
S.M.’s presentation at the Hospital, however, the conditions after presentation at the Hospital did
not improve and continued causing injury.150
Dr. McHarg cannot state beyond a reasonable doubt injury occurred after S.M.’s
presentation at the Hospital.151
Dr. McHarg does not agree there is a basis for an opinion all of J.M.’s injury
occurred before S.M. presented at the Hospital.152
The Hospital also proffered expert testimony on the standard of care from Dr.
John Elliott. He is board certified in obstetrics and gynecology and maternal-fetal medicine.153
Dr. Elliott testified decreased fetal movement is a possible warning sign of
decreased oxygen delivery, but admitted in 95% of the time or greater a report of decreased fetal
movement is a “false alarm.”154
Dr. Elliott opined the biophysical profile was the final, overwhelming piece of
evidence S.M. needed to be delivered; as of 12:55 p.m. the fetal monitor strip showed
contractions with late decelerations, minimal variability, and the patient complained of decreased
fetal movement, all of which indicated S.M. at 37 weeks gestation “absolutely mandated
Dr. Elliott opined Dr. Turner delayed delivery from 3:10 to 4:31 p.m., and Dr.
Espaillat’s report of the biophysical profile results constituted an emergency.156
Dr. Elliott opined Dr. Turner should have evaluated S.M. earlier; Dr. Turner knew
of decreased fetal movement and Nurse Practitioner Daukaus reported to him a non-reassuring
fetal strip. Dr. Elliott opined if Dr. Turner evaluated S.M.’s fetal heart strip himself, he should
have realized baby J.M. was hypoxemic and bordering on acidotic and the combination of
decreased fetal movement, no accelerations, minimal variability, and late decelerations mandated
Dr. Elliott opined Dr. Turner should have evaluated S.M. between the delivery of
Patient # 26 and the elective cesarean section of Patient # 27, and delivered S.M. immediately.158
Dr. Elliott opined J.M. was not acidotic from approximately 1:00 p.m. to 2:00
p.m., and J.M. became acidotic during the time before delivery.159
Dr. Elliott disagreed with the United States’ expert Dr. Boyd’s opinion J.M’s
injury occurred one week before admission to the Hospital, opining there is nothing in the
pathology report timing J.M.’s injury.160
Dr. Elliott disagreed with Dr. Pettker’s interpretation the fetal heart tracings
showed a negative normal contraction stress test. Dr. Elliott interpreted the tracings as a positive
contraction stress test indicating a problem with the fetus, and opined the medical team,
including Dr. Turner, had an obligation as the attending physician to evaluate S.M.161
The United States’ expert on standard of care: Dr. Pettker
Dr. Christian Pettker, expert witness for the United States, is board certified in
obstetrics, gynecology, and maternal fetal medicine.162
Dr. Pettker testified to the standard of care regarding a patient such as S.M. with
fetal heart strips upon admission. For a patient at 37 weeks pregnancy, presenting with decreased
fetal movement, and who is not in labor, the standard of care is to observe further, continue
monitoring for another 30 to 60 minutes, and provide resuscitative measures, including
repositioning the mother, administering I.V. fluids and oxygen.163
Dr. Pettker opined the care Dr. Turner provided to S.M. is consistent with the
general practice standard of care.164
Dr. Pettker testified the standard of care does not require an attending to check
fetal monitoring strips without further information from the nursing staff, even where a patient
presents with non-reassuring fetal heart monitor strips.165
Dr. Pettker testified where a physician admits a patient but does not receive an
update on the status of the patient since the time of admission, the standard of care is the
physician would not be expected to check fetal monitoring strips absent a report the patient’s
condition is worsening.166
Dr. Pettker opined Dr. Turner did not know, because the nursing staff did not tell
him, of late decelerations and whether S.M.’s condition improved or worsened.167
Dr. Pettker opined as the “captain of the ship,” Dr. Turner relies on information
and reporting from the staff in Labor and Delivery.168
Dr. Pettker opined Dr. Turner’s actions at the time Dr. Espaillat reported the
results of the biophysical profile as appropriate within the standard of care. Dr. Turner could not
have left the operating room of Patient # 27 to examine S.M., and properly told Dr. Espaillat to
prepare S.M. for delivery.169
Dr. Pettker disagreed with Dr. Manning’s opinion S.M. required immediate
B. Cause of J.M.’s injury.
Hospital’s position: Dr. Turner’s delay increased risk of injury.
Dr. Manning opined on causation. Although he did not know when the process of
J.M.’s injury began, Dr. Manning opined when S.M. arrived at the hospital, J.M. exhibited
evidence of ongoing hypoxemia insult and continued exposure to hypoxemia is detrimental.171
Dr. Manning opined brain injury due to hypoxemia is a progressive phenomenon,
and J.M.’s injury continued while he remained undelivered.172 Dr. Manning opined hypoxemia
can be reversed if it detected when the fetus is in compensation before the fetus deteriorates in
utero, and the earlier the intervention, the less damage there will be.173
Dr. Manning opined the late decelerations show J.M.’s brain stem recognized a
fall in oxygen producing a heart rate change evidencing a functional brain stem. A fetus that is
totally decompensated does not exhibit late decelerations. This evidence, in Dr. Manning’s
opinion, shows J.M. should have been delivered to prevent continuing injury. 174
Dr. Manning opined J.M. suffered ongoing progressive hypoxemic injury while in
utero, specifically between 12:17 p.m. and the time of deliver at 4:24 p.m.175
The United States’ first causation position: likely pre-existing injury eliminates causation.
Dr. Theonia Boyd, expert witness for the United States, is board certified in
anatomic pathology and pediatric pathology and qualified as an expert in placental pathology. 176
162. Dr. Boyd examined five slides of S.M.’s placental tissue.177
Dr. Boyd drew two conclusions from examining S.M.’s placental slides: (1) there
is evidence in the placenta of nonacute blood flow restrictions which began “remotely” from
labor and delivery; and (2) there is evidence of nonacute fetal stress from the relative lack of
oxygen because of the blood flow restrictions.178
Dr. Boyd opined the timing of the event – blood flow restrictions – occurred days
to weeks before delivery, with Dr. Boyd estimating a minimum of one week before delivery. 179
Dr. Boyd’s minimum of one week is a “rough estimate” and it “could be so many weeks beyond
or earlier than that” but she could not definitely opine because once a certain pattern in the
placenta appears, the finding does not change.180
As to the second conclusion, Dr. Boyd opined the timing of the event – hypoxic
stress where the fetus’ body registers it does not receive a normal amount of oxygen – occurred
days and possibility a week or more before the August 3, 2009 birth.181
Dr. Boyd opined the cause of J.M.’s hypoxia is a result of flow restriction
between the placenta through the umbilical cord to the baby.182
Dr. Boyd attributed the restriction of blood flow to a problem with the umbilical
The United States’ second causation position: nurses caused the injury and not Dr. Turner.
The United States offered the expert testimony of Katherine Bizal, R.N. on the
nursing standard of care.
Nurse Bizal opined the Hospital’s nurses failed to implement nursing
interventions for the nonreassuring fetal heart rate strip; failed to document if interventions were
done if at all; and failed to communicate with care providers.184
Nurse Bizal found no documentation of physician notification after 12:55 p.m.; no
evidence of repositioning S.M.; no evidence of the administration of oxygen.185
With respect to physician notification, Nurse Bizal testified there is nothing in the
medical record from 12:55 p.m. to 2:50 p.m. of any notification to a physician.186
Nurse Bizal opined the Hospital’s nursing staff did not comply with the Hospital’s
policy on management of nonreassuring fetal heart tracing, and specifically decelerations,
because Nurse Shabon documents only one deceleration despite other decelerations on the
strip.187 This includes failure to document decelerations while in triage.188
Nurse Bizal opined the standard of care in documenting fetal monitoring strips
requires an assessment and documentation to accurately reflect the tracing in the medical record,
and such documentation should be made every 30 minutes.189 The standard of care requires
documentation every 15 minutes where there is a nonreassuring strip.190
Nurse Bizal opined the nursing staff did not comply with the Hospital’s policy on
fetal monitoring charting and management because they did not properly document the medical
record and provide an accurate assessment of the overall fetal and maternal wellbeing through
Nurse Bizal testified she identified a total of 17 decelerations each of which
should have been documented under the standard of care and Hospital policy.192
The Hospital offered the expert testimony of Dr. David Acker on the nursing
standard of care. Dr. Acker is board certified in maternal fetal medicine.193
Dr. Acker opined the Hospital’s nurses met the standard of care, finding in all
aspects of assessment, care, and documentation; the nurses followed policies, used the chair of
command to report to Dr. Turner; met all applicable standards of care expected in Labor and
Delivery and Triage.194
Dr. Acker opined Nurse Practitioner Daukaus communicated to Dr. Turner
regarding S.M.’s nonreassuring strips, but admitted there is no record of any communications
from the nursing staff to Dr. Turner after Daukaus’ conversation with him.195
Dr. Acker opined Nurse Practitioner Szott accurately interpreted the fetal monitor
strip under the Hospital’s policies and communicated it to Dr. Turner.196 Once S.M. is admitted
to Labor and Delivery, Dr. Turner is “in charge.”197
C. Reasonableness of the $8 million settlement.
The United States’ argument: Hospital paid too much for life care.
The United States offered Dr. Robert Shavelle, a Ph.D. in applied statistics and
fellow in the American Academy for Cerebral Palsy and Developmental Medicine, as an expert in
life expectancy for children with cerebral palsy.198
Dr. Shavelle reviewed the life-care plans submitted in the Underlying Action and
opined on the statistical life expectancy of a child similar to J.M. born with cerebral palsy in
Dr. Shavelle opined the life expectancy in late 2013 or early 2014, life expectancy
of a child similar to J.M. is approximately 20 additional years from age 4 (born in 2009).200
Dr. Shavelle testified the percentage of children similar to J.M. living to age 70 is
about 1 percent, and to age 74, one-half of 1 percent.201
The United States also offered expert witness Dr. Edward Mathis, an expert in
Dr. Mathis reviewed Dr. Shavelle’s report on life expectancy, and opined the
economic damages would be reduced if life expectancy is reduced to age 20 to 24 years old.203
The Hospital’s arguments based on facts known at settlement.
The Hospital settled the Underlying Action in July 2014, after its senior counsel
evaluated the case with its defense counsel; internally investigated the allegations of the
complaint; retained experts to review the medical records; conducted an independent medical
examination of J.M.; considered Patients’ expert reports; considered J.M.’s condition; economic
projections; and, after presentation to the Hospital Reserve Committee.204
Richard Margulies, Esquire, represented the Hospital in the Underlying Action.
Mr. Margulies and his law firm recommended a settlement in this case, estimating a possible
verdict exposure in the Philadelphia County Court of Common Pleas as high as $50 million.205
Mr. Margulies testified to the difficulties in defending the case including the care
received by S.M. prior to delivery; causation, including a concern regarding continued hypoxic
injury to J.M.; the nature of J.M.’s injuries and resulting costs of care; and concerns regarding
the Hospital’s experts at trial.206
Mr. Margulies testified his law firm retained a pathology expert who could not
give the Hospital an opinion the injury occurred before S.M.’s arrival at the Hospital and with
regard to the possibility of continuing injury from the time of S.M.’s admission to delivery.207
Mr. Margulies testified to concerns regarding Dr. Espaillat’s 3:10 p.m. progress
note missing from the original medical record. Mr. Margulies testified after J.M.’s delivery and
before the medical record left the Labor and Delivery unit, Dr. Turner made copies of certain
portions of the chart, including Dr. Espaillat’s progress note. Dr. Turner’s attorney in the
Underlying Action produced Dr. Espaillat’s progress note during discovery.208
Mr. Margulies testified the Hospital’s economics expert relied on the Patients’
life-care plan which assumed a life expectancy of age 75.209
Mr. Margulies testified the Hospital and the Patients each had economic experts
and life-care plans, and the jury would evaluate life expectancy in dispute, with both parties’
experts’ opinions to be considered and determined by the jury.210
Analyzing and valuing a life care plan is one aspect of damages. The Hospital
also needed to consider the hedonic damages potential.
The Hospital’s expert, A. Roy DeCaro, Esquire, credibly opined on the
reasonableness of the $8 million settlement given the potential of a large verdict; the Hospital’s
experts estimating future medical costs in the range of $8 to $15 million; the potential risks of
the Hospital’s defense of the case including liability and causation; issues with the Hospital’s
experts on causation; sympathetic parties; trial in the Philadelphia County Court of Common
Pleas; the law of Pennsylvania favoring plaintiffs generally, and the facts of the case.211
When the Hospital settled the Underlying Action in July 2014, J.M. suffered from
permanent neurologic injuries requiring lifelong care to meet his daily needs and substantial
Conclusions of Law
Under the Federal Tort Claims Act, district courts “shall have exclusive
jurisdiction on civil actions on claims against the United States, for money damages, . . . for . . .
personal injury . . . caused by the negligent or wrongful act or omission of any employee of the
Government while acting within the scope of his office or employment, under circumstances
where the United States, if a private person, would be liable to the claimant in accordance with
the law of the place where the act or omission occurred.”213
The events of this action took place in Philadelphia. Pennsylvania law applies.
Once Dr. Turner is found to be a deemed federal employee and found to be acting
within the scope of his employment, the sole remedy for any alleged malpractice by him is
against the United States under the Federal Tort Claims Act.214
There is no dispute DVCHC, a federally funded health center eligible for
coverage under the Federal Tort Claims Act, employed Dr. Turner; Dr. Turner is a deemed
federal employee acting within his scope of employment with the Public Health Service; and Dr.
Turner is an ostensible agent of the Hospital.
The Hospital, having elected to not sue the United States’ deemed employee in
the Philadelphia state court, must now show both Dr. Turner’s negligence caused the Patients’
injuries and the United States should be entirely responsible under a common law indemnity
theory or partially responsible under a contribution claim permitted by the Pennsylvania General
A. Dr. Turner breached the standard of care causing damage.
We must first determine whether there is sufficient evidence to find Dr. Turner
liable for negligence causing injury to the Patients. To state a claim for negligence under
Pennsylvania law, “a plaintiff must allege facts which prove the breach of a legally recognized
duty or obligation or the defendant that is causally related to actual damages suffered by the
Medical malpractice actions sounding in negligence “can be broadly defined as
the unwarranted departure from generally accepted standards of medical practice resulting in
injury to a patient, including all liability-producing conduct arising from the rendition of
professional medical services.”216
To prove the duty and breach of duty elements, “a plaintiff must show that the
defendant’s act or omission fell below the standard of care, and therefore, increased the risk of
harm to the plaintiff.”217
A labor and delivery doctor is required to employ the care and judgment of a
reasonable person in rendering care to a patient. Thus, a patient can prevail by establishing a
doctor’s negligence “without proof of a breach of the standard of care if the [patient] can
establish the healthcare provider failed to exercise reasonable care.”218
When, as here, the fact finder faces diametrically opposed qualified opinions as to
the standard of care, we should remember the medical profession is not the sole arbiter of
We find the Hospital’s experts credibly defined the standard of care applying to
S.M. when she appeared in the Hospital Triage and over the next four hours. We find Dr. Turner
had an obligation to do more than rely on nurses and await his next direction. We find Nurse
Daukaus credibly testified she told Dr. Turner of S.M.’s medical issues. He is the “captain of
the ship” and, knowing of S.M.’s decreased fetal movements, decelerations and concerns in
nursing reports, we cannot fathom a standard of care allowing a labor and delivery doctor to have
“no reason” to attend to S.M. When he did attend to S.M., the delivery of J.M. became urgent.
Dr. Turner admits had he known of these facts, he may have acted differently. We find he knew
these facts or possibly overlooked them. As shown below, we hold the nurses equally responsible
for not ensuring repeated notice to Dr. Turner. But we find he had notice and have no credible
explanation as to why he did not intervene earlier. He is not a technician moving from delivery
room to delivery room at the nurses’ direction. He is an experienced and, from every indication,
otherwise thoughtful doctor.
While Dr. Pettker is an impressive witness, we do not find his standard of care
testimony to be credible when, as here, S.M. appears at 12:08 P.M. with a treating obstetrician’s
note on decreased fetal movements, nursing reports confirming the issue and then the labor and
delivery doctor does not check the fetal monitors let alone attend to S.M. Dr. Pettker’s standard
of care may apply in a situation where there is sudden onset of injury or lack of information
provided to the doctor; we find his opinion is not as credible where there is a claim upon
presentation, confirmed by nurses and residents and the doctor does not find “reason” to attend to
his patient until after two interim surgeries, including an entirely elective cesarean delivery for
Patient #27 while S.M. waited with ongoing fetal distress for at least two hours.
Pettker admitted minimal variability upon admission, intermittent late decelerations and
prolonged late deceleration at 2:38 p.m.220
Applying the Incollingo standard, we find Dr. Turner failed to exercise reasonable
care notwithstanding the conflicting doctor-defined “standards of care.”
Regardless of Dr.
Pettker’s standard allowing labor and delivery doctors to defer entirely to nurses and not
independently examine S.M., we find Dr. Turner failed to exercise reasonable care as the captain
of the labor and delivery ship on August 3, 2009.
If a plaintiff shows a breach of the standard of care, the plaintiff “then must
demonstrate ‘the causal connection between the breach of the duty of care and the harm alleged:
that the increased risk was a substantial factor in bringing about the resultant harm.’”221
In Hamil v. Bashline, 392 A.2d 1280 (Pa. 1978), the Pennsylvania Supreme Court
applied the Restatement (Second) of Torts § 323 to “relax the degree of certitude normally
required of plaintiff’s evidence in order to make a case for the jury as to whether a defendant
may be held liable for the plaintiff’s injuries: Once a plaintiff introduced evidence a defendant’s
negligent act or omission increased the risk of harm to a person in plaintiff’s position, and that
the harm was in fact sustained, it becomes a question for the jury as to whether or not that
increased risk was a substantial factor in producing the harm.”222
Under Pennsylvania law, once a plaintiff demonstrates a defendant’s acts or
omissions increased the risk of harm to another, “such evidence furnishes a basis for the factfinder to go further and find that such increased risk was in turn a substantial factor in bringing
about the resultant harm; the necessary proximate cause will have been made out if the jury sees
fit to find cause in fact.”223
A plaintiff must make a showing by a preponderance of the evidence: “As on
other issues in civil cases, the plaintiff is required to produce evidence that the conduct of the
defendant has been a substantial factor in bringing about the harm he has suffered, and to sustain
his burden of proof by a preponderance of the evidence. This means that he must make it appear
that it is more likely than not that the conduct of the defendant was a substantial factor in
bringing about the harm. A mere possibility of such causation is not enough; and when the
matter remains one of pure speculation and conjecture, or the probabilities are at best evenly
balanced, it becomes the duty of the court to direct a verdict for the defendant.”224
This case presents a difficult causation question as no doctor can opine the birth
injuries exclusively occurred while under Dr. Turner’s care for four hours. Every doctor agrees
there is evidence of the injury beginning before midday on August 3, 2009. The question is
whether, given possible additional causes of injury, Dr. Turner’s conduct introduced an
additional risk affecting the patient’s health. This increased risk must constitute a substantial
factor in bringing about the injuries.225
Proof of increased risk does not necessarily prove causation and the Hospital,
largely through Dr. Boyd, argues the outcome would have been the same for the Patients
regardless of Dr. Turner’s conduct.
While we find Dr. Boyd’s testimony is credible as to an earlier onset of problems,
she did not, nor could she, opine as to increased risk of harm during the four hours of Dr.
Turner’s care. We find Dr. Manning and the Hospital’s experts credibly explained the ongoing
and increased risk to J.M. from delay with ongoing decelerations. Dr. Manning credibly opined
hypoxemia can be reversed if detected when the fetus is in compensation before the fetus
deteriorates in utero, and the earlier the intervention, the less damage there will be. Dr. Turner
essentially admits the immediate need to deliver the baby when he finds out more facts later in
the afternoon and moves for an urgent caesarian delivery. Dr. Turner admits if he had been told
of repetitive late decelerations and no variability, it’s a “different thing” than simply being told
nonreassuring.226 But he still would have tried interventions to resolve. He does not dispute
strips show late decelerations but only argues not being told by the nurses. 227
We find his delay, given the progressive nature of harm to J.M., increased the risk
to J.M. While close, we find negligence and causation is shown by a preponderance of the
evidence. While we can never know for certain, we find Dr. Manning’s credible testimony
opining as to a labor and delivery doctor’s concern for immediate attention comports with Dr.
Turner’s understanding. Dr. Boyd’s opinion as to the onset of hypoxic stress does not change
our finding Dr. Turner and the nurses should have immediately turned to fully evaluate the
Patients upon arrival and not automatically assume the decelerating strips here are the same as
We agree with the United States the Hospital’s nurses and staff share a role in this
negligence. We find Nurse Bizal’s credible testimony confirms the nurses and staff should have
played a more central role in notifying Dr. Turner.
We found admitted instances of
undocumented events in treating S.M. The nurses breached a standard of care in their
documentation and efforts to find another physician or care for S.M.
But the nurses are not any more responsible than Dr. Turner. This is a shared
symbiotic relationship requiring communication and not direction. Dr. Turner is required to do
more than show up at delivery tables when directed by nurses. Conversely, the nurses must do
more than rely on a doctor’s attention. Dr. Turner had the right to rely upon information from
the nurses. He claims he did not have all the information and upon learning all the information,
moved to an urgent caesarian delivery.
We find Dr. Turner’s testimony not credible as to lacking information. A resident
doctor found the information on a monitor and attended to S.M.
Dr. Turner could have
examined and monitored. He did not. He found “no reason” to attend to S.M. Dr. Turner agrees
if we were to find notice to him, he would have attended to S.M. We believe Nurse Daukaus,
Dr. Espaillat and the medical records confirming, in part, notice to Dr. Turner hours before he
turned his attention to J.M.
Under the governing Pennsylvania law, Dr. Turner increased the risk of harm to
the Patients by inaction. We recognize the impossibility of precisely knowing J.M.’s in utero
status at 12:08 P.M compared to birth injuries over four hours later. But we will not allow Dr.
Turner to raise conjecture as to his injuries at 12:08 P.M. compared to 4:31 P.M. when his
inaction caused this increased substantial risk of harm.
B. The Hospital is entitled to contribution for $4,000.000.
Unlike a direct claim from Patients against the United States where we would
focus only on whether the Patients established a medical negligence claim, the Hospital seeks
indemnity from the United States or, alternatively, contribution for Dr. Turner’s alleged
Under Pennsylvania law, the right of common law indemnity “rests upon a
difference between the primary and the secondary liability of two persons each of whom is made
responsible by the law to an injured party. It is a right which enures to a person who, without
active fault on his own part, has been compelled, by reason of some legal obligation, to pay
damages occasioned by the initial negligence of another, and for which he himself is only
Common law indemnity is a “fault shifting mechanism, operable only when a
defendant who has been held liable to a plaintiff solely by operation of law, seeks to recover his
loss from a defendant who was actually responsible for the accident which occasioned the
Pennsylvania law provides for a statutory right of contribution among joint
tortfeasors.230 “Joint tortfeasor” is defined as “two or more persons jointly or severally liable in
tort for the same injury to persons or property, whether or not judgment has been recovered
against all or some of them.”231
Contribution under Pennsylvania law “exists when a ‘joint tortfeasor has
discharged the common liability or paid more than his pro rata share,’ and the joint tortfeasor’s
liability ‘to the injured persons has been extinguished by the settlement.’”232
The party seeking either indemnity or contribution must prove reasonableness of
On its indemnity claim, the Hospital seeks the entire $8 million it paid to settle the
Underlying Action plus interest at Pennsylvania’s 6% per annum legal rate of interest, attorney’s
fees and costs incurred in defending the Underlying Action.
Under Pennsylvania law, an indemnitee is entitled to attorney’s fees and costs
incurred in the underlying defense litigation.234
Contribution, by contrast, is a creature of Pennsylvania statute known as the
“Uniform Contribution Among Tort-feasors Act.” 235
Pennsylvania law does not permit recovery of attorney’s fees, costs or
prejudgment interest when succeeding on a contribution claim.
The Hospital and Dr. Turner equally share in the negligence and communication
breakdowns leading to this delay.
Dr. Turner is not solely responsible for the harm and we deny the Hospital’s claim
The United States is responsible, on a statutory contribution basis, for one half of
the reasonable settlement.
The Hospital’s payment of $8 Million is a reasonable settlement of the Patients’
claim in the Court of Common Pleas of Philadelphia County. We find Attorney DeCaro credibly
explained, without contradiction, the likely recovery for a plaintiff on this claim before a jury in
the Philadelphia state court. The Hospital’s internal counsel and experienced medical malpractice
counsel valued the case far in excess of $8 Million, including one estimate of $50 Million. The
Patients retained highly regarded trial counsel known for winning jury trials on birth injuries in
the state court. The Hospital’s main hope focused on convincing a jury of a lack of causation –
having the jury find J.M.’s injuries pre-dated the August 3, 2009 presentation. The Hospital,
while having some medical expertise consistent with the United States’ present arguments of no
liability, faced issues with a sympathetic birth injury plaintiff particularly on hedonic damages.
The life plan damages are affected by the anticipated truncated life but, even assuming a shorter
life span, a jury would consider the reason for the shorter life span. Having evaluated the trial
testimony of the key witnesses in our non-jury trial, we can also appreciate the Hospital’s
concern with Dr. Turner’s entire reliance upon nurses’ directions as to his next steps. Dr.
Turner’s credibility would also be challenged by the missing medical record including questions
regarding whether removal of a medical record evidences intent to conceal. We found Dr. Turner
strained his credibility by attempting to affix all blame for his inaction on nursing actions. He
knew his role and failed to meet the standard of “captain of the ship” described by his expert Dr.
The Pennsylvania statute authorizing contribution among joint tort-feasors does
not mention interest, costs or attorney’s fees. We decline to craft a remedy beyond the relief
afforded by the General Assembly.
After consideration of several credible medical experts but particularly evaluating the
credibility of Dr. Turner, we find the Hospital met its burden of proof of showing Dr. Turner,
deemed a federal employee, negligently attended to the Patients on August 3, 2009. Dr. Turner
increased the risk of harm to the Patients with inaction for approximately four hours. We find the
Hospital’s $8 million settlement is a reasonable settlement given the likely hedonic damages and
several proof issues before a jury in the Philadelphia Court of Common Pleas. But, as we find
the Hospital and its nurses equally share in the harm to the Patients, we deny the Hospital’s
indemnity claim but award the Hospital $4,000,000 under the Pennsylvania statutory
contribution claim, without interest, costs or attorney’s fees.
Stipulation of Facts, Joint Exhibit (“J.E.”) 1 at ¶ 3.
Id. at ¶ 4.
Id. at ¶ 50.
Id. at ¶ 56.
Id. at ¶¶ 5–6.
Id. at ¶ 7.
Id. at ¶ 8.
Id. at ¶¶ 9–10; Notes of Testimony (“N.T.”) January 9, 2017 at p. 288 (ECF Doc. No. 76).
J.E. 1 at ¶¶ 19–20.
Id. at ¶ 15.
Id. at ¶ 19.
Id. at ¶ 14.
Id. at ¶ 16.
Id. at ¶ 20.
Id. at ¶¶ 21, 26.
Id. at ¶ 11.
Id. at ¶¶ 12–13.
See Second Amended Complaint (ECF Doc. No. 19). We granted the United States’ motion to
dismiss the Hospital’s contractual indemnity claim (ECF Doc. No. 34, 35).
J.E. 1 at ¶ 23.
Id. at ¶ 23.
Id. at ¶ 22; J.E. 2-120.
N.T. January 9, 2017 at p. 37.
N.T. January 11, 2017 at pp. 117-118 (ECF Doc. No. 78).
Id. at p. 118.
Id. at pp. 118–19.
Id. at p. 119.
J.E. 1 ¶ 24; J.E. 2-57.
Id. ¶ 29; J.E. 2-57; N.T. January 9, 2017 at p. 123-124.
N.T. January 9, 2017 at pp. 142-143.
Id. at p. 145.
J.E. 1 ¶ 29; J.E. 2-57; N.T. January 9, 2017 at pp. 123-124.
J.E. 2-57; N.T. January 9, 2017 at p. 124.
J.E. 1 ¶ 31.
J.E. 2-57; N.T. January 9, 2017 at p. 124; J.E. 1 ¶ 30.
J.E. 10-17; J.E. ¶ 33.
J.E. 2-71; J.E. ¶ 33.
J.E. 2-57; N.T. January 9, 2017 at p. 125.
N.T. January 9, 2017 at p. 33.
N.T. January 11, 2017 at pp. 115–16.
N.T. January 10, 2017 at p. 124.
Id. at p. 126.
N.T. January 9, 2017 at p. 34.
Id. at pp. 35–36.
Id. at p. 37.
Id. at p. 32.
Id. at pp. 125–26.
Id. at pp. 126–27.
Id. at pp. 151–54.
Id. at p. 154.
N.T. January 10, 2017 at p. 126.
N.T. January 9, 2017 at p. 133.
J.E. 2-58 through 2-61; N.T. January 9, 2017 at p. 131.
J.E. 2-58, 2-59; N.T. January 9, 2017 at pp. 131-133.
N.T. January 9, 2017 at pp. 133-135.
J.E. 2-60; N.T. January 9, 2017 at pp. 134-136.
J.E. 1 ¶ 35; N.T. January 9, 2017 at p.138.
N.T. January 9, 2017 at pp. 133-134; N.T. January 10, 2017 at pp. 118-120, 128-129.
N.T. January 9, 2017 at p. 129; J.E. 1 ¶ 37.
N.T. January 10, 2017 at pp. 129-130.
Id. at pp. 142-143.
Id. at p. 143.
Id. at pp. 143-144.
Id. at p. 144.
Id. at pp. 177-178.
J.E. 1 ¶ 38.
N.T. January 10, 2017 at p. 104.
Id. at p. 116.
N.T. January 9, 2017 at p. 134; J.E. 1 ¶ 36.
J.E. ¶ 39. The underlying medical record reports a 1:20 P.M. admission.
Margaret Brown, R.N. is the former nurse manager in Labor and Delivery at the Hospital from
2001 through 2016 and, from 2009 to 2012, the nursing administrator for the maternal infant
division at The Hospital. Ms. Brown testified to the Hospital’s nursing policies in 2009. N.T.
January 12, 2017 at pp. 41, 47.
Id. at pp. 50–51.
N.T. January 11, 2017 at p. 236.
N.T. January 12, 2017 at pp. 53–54.
N.T. January 12, 2017 at pp. 48-49.
J.E. 13-2 – 13-3.
N.T. January 12, 2017 at p. 52.
J.E. 2-66; N.T. January 10, 2017 at p. 223.
N.T. January 10, 2017 at pp. 220-221.
J.E. ¶ 32.
N.T. January 10, 2017 at pp. 224-226; J.E. 2-71, 2-72.
N.T. January 10, 2017 at p. 225.
J.E. 2-72 – 2-73; N.T. January 11, 2017 at p. 228.
J.E. 2-73; Dep. of Dr. Erin Myers at p. 51.
Dep. of Dr. Erin Myers at pp. 52-53.
N.T. January 10, 2017 at pp. 237-39.
Id. at pp. 109–10.
Id. at pp. 106, 109–10.
Id. at pp. 128, 143–44, 182.
Id. at pp. 202-203.
Id. at p. 136.
Id. at p. 138.
Id. at p. 109–10, 202.
J.E. 14-1; N.T. January 10, 2017 at p. 202.
J.E. 70-7, 14-1.
N.T. January 10, 2017 at p. 107.
Id. at pp. 113–14.
J.E. 14-1, 14-2.
N.T. January 10, 2017 at p. 115.
N.T. January 10, 2017 at pp. 181-182.
Id. at p. 182.
Id. at p. 183.
N.T. January 11, 2017 at pp. 215-219.
Id. at p. 220.
N.T. January 9, 2017 at pp. 164–65, 168, 176.
Id. at pp. 167-169.
N.T. January 9, 2017 at p. 170.
Id. at pp. 170-173.
Id. at pp. 173-174.
Id. at pp. 174-175.
Id. at p. 175.
Id. at pp. 175–76.
N.T. January 10, 2017 at p. 150.
N.T. January 9, 2017 at p. 177.
N.T. January 10, 2017 at pp. 148, 151-152.
Id. at pp. 151-153.
N.T. January 10, 2017 at pp. 200-01.
Id. at p. 202; J.E. 1 ¶ 41.
N.T. January 10, 2017 at p. 201.
Id. at p. 202.
N.T. January 10, 2017 at pp. 155-157.
J.E. 1 ¶ 32.
N.T. January 10, 2017 at pp. 157-158.
J.E. 1 ¶ 45.
Id. at ¶ 46.
J.E. 14-1; N.T. January 10, 2017 at p. 161.
J.E. 1 ¶ 49.
Id. ¶ 56.
N.T. January 10, 2017 at pp. 46–47.
N.T. January 9, 2017 at pp. 258–63. It is hard for us to now second guess the Hospital’s
lawyering strategy in the state court. Through their strategy, it obtained a reasonable settlement
of $8 million. This case is different because the United States, as shown here, principally defends
Dr. Turner arguing there is no negligence by any professional due to a lack of causation. The
Hospital may have benefited from this expertise, although the Hospital obtained a similar
opinion of no negligence for Dr. Dein. See n. 138, infra. We still fail to understand risking a jury
trial in the Philadelphia Court of Common Pleas as opposed to a bench trial in this Court, even if
the United States’ alternative defenses focused on Hospital negligence. We would understand the
merits of each Defendant’s arguments and are unlikely to be swayed into finding the Hospital
liable simply because the United States’ experts say so. As a bottom line, the Hospital paid two
sets of lawyers and agreed to pay $8 million to avoid a jury resolution in Philadelphia state court
but now seeks to allocate some portion of its liability to Dr. Turner in this Court.
N.T. January 10, 2017 at pp. 47–52.
N.T. January 10, 2017 at pp. 47-55; N.T. January 9, 2017 at pp. 270-274, 278; J.E. 36.
N.T. January 10, 2017 at pp. 261–62, 265. The Hospital also considered the opinion
supporting its position of no negligence provided by its retained expert Dr. Dein, an obstetrician,
in the Underlying Action. Dr. Dein provided an opinion to the Hospital’s counsel concluding the
actions of all the health care providers at the Hospital including Dr. Turner met the acceptable
standard of care. Dr. Dein told the Hospital the fetal heart strips indicated S.M. needed
evaluation, needed to be admitted, provided with hydration, monitoring and evaluation with an
eye towards delivery. Dr. Dein told the Hospital his interpretation of the “false positive” rates in
fetal monitor strips, and the risks of emergency cesarean section outweighed any need S.M. had
for the procedure. Dr. Dein told the Hospital the results of the biophysical profile showed J.M.
came to the Hospital with evidence of earlier neurologic injury; the results of the biophysical
profile required delivery, but not an urgent cesarean section, characterizing the status of fetus as
a stable situation indicative of a neurologically injury child. Dr. Dein told the Hospital his
opinion Dr. Turner’s actions were within the standard of care, and J.M. did not deteriorate from
the time S.M. arrived at the Hospital to the time of delivery, and there is no evidence on the fetal
monitor strip delivery earlier than 4:31 p.m. would have had any different neurologic outcome.
Id. at p. 257–66.
Id. at pp. 54–58; N.T. January 9, 2017 at p. 268.
N.T. January 10, 2017 at pp. 166–69.
N.T. January 9, 2017 at p. 22. The parties stipulated all witnesses retained to testify as experts
in this case are qualified to testify as experts within their respective specialties and subspecialties
(J.E. 1 ¶ 2).
N.T. January 11, 2017 at p. 160.
N.T. January 9, 2017 at pp. 28–29, 40–41.
Id. at pp. 28–29, 40–42.
Id. at pp. 29–30, 69.
Id. at pp. 28–29, 41–42.
Id. at pp. 79–80.
N.T. January 10, 2017 at p. 3.
Id. at pp. 6–7.
Id. at pp. 7–8, 19.
Id. at p. 10.
Id. at pp. 18, 39–40.
October 11, 2016 Elliott dep. at p. 18.
Id. at pp. 28–29, 53–54.
Id. at pp. 41–42.
Id. at p. 43.
Id. at pp. 43–44.
Id. at pp. 44–45, 47.
Id. at pp. 49–50.
Id. at pp. 59–62.
N.T. January 11, 2017 at pp. 102–03.
Id. at pp. 122–23.
Id. at pp. 164–65.
Id. at pp. 165–167.
Id. at pp. 167–68.
Id. at p. 135.
Id. at pp. 135–36.
Id. at p. 129.
Id. at pp. 155–160.
N.T. January 9, 2017 at p. 70.
Id. at pp. 70–71.
Id. at pp. 71–72.
Id. at p. 75.
N. T. January 11, 2017 at pp. 4, 10.
Id. at pp. 12–13.
Id. at p. 13.
Id. at pp. 15–16.
Id. at p. 16.
Id. at p. 17.
Id. at pp. 41–43, 68.
Id. at p. 214.
Id. at pp. 215–19.
Id. at p. 220.
Id. at p. 228; J.E. 13.
N.T. January 11, 2017 at pp. 230, 235–36.
Id. at p. 236.
Id. at pp. 233–34, J.E. 13-4.
N.T. January 11, 2017 at pp. 238–39.
October 17, 2016 Acker dep. at p. 44.
Id. at pp. 51–52.
Id. at pp. 79–81.
Id. at p. 81.
N.T. January 12, 2017 at pp. 2–3, 5.
Id. at pp. 6–7.
Id. at p. 18.
Id. at pp. 36–37.
N.T. January 11, 2017 at p. 75.
Id. at pp. 79–80.
N.T. January 9, 2017 at pp. 264–84. The Hospital’s Reserve Committee is comprised of
approximately 27 people including the Chairman and Chief Executive Officer of the Hospital’s
health system, the Chief Medical Officer, department chairs, risk managers, and physicians. Id.
at p. 253. The Reserve Committee authorized the Hospital’s senior counsel to settle the litigation.
Id. at 286.
N.T. January 10, 2017 at pp. 46–47.
Id. at pp. 47–52.
Id. at pp. 53–54.
Id. at pp. 55–58.
Id. at pp. 61–62.
Id. at pp. 62–64.
N.T. January 9, 2017 at pp. 208–210, 218–221.
J.E. 1 ¶ 58.
28 U.S.C. § 1346(b)(1). See Lomando v. U.S., 667 F.3d 363, 373–75 (3d Cir. 2011).
42 U.S.C. § 233(a).
Green v. Pennsylvania Hosp., 123 A.3d 310, 315-316 (Pa. 2015) (citing Scampone v.
Highland Park Care Ctr., LLC, 57 A.3d 582, 596 (Pa. 2012)).
Toogood v. Owen J. Rogal, D.D.S., P.C., 824 A.2d 1140, 1145 (Pa. 2003).
Green, 123 A.3d at 316 (citing Scampone, 57 A.3d at 596).
Estate of Goldberg v. Nimoityn, 193 F.Supp.3d 482, 489 n.3 (E.D. Pa. 2016) (citing
Incollingo v. Ewing, 282 A.2d 206 (Pa. 1971)).
Nimoityn, 193 F.Supp.3d at 489 n.3. (“In practical terms, Incollingo represents an application
to medical negligence actions of the principles set forth in Judge Hand’s famous decision in The
T.J. Hooper, 60 F.2d 737 (2d Cir. 1932), limiting the power of the medical profession to be the
sole arbiter of what constitutes appropriate care.”)
N.T. January 11, 2017, pp. 121–22, 125–26.
Green, 123 A.3d at 316 (quoting Stampone, 57 A.3d at 596)).
Hamil, 392 A.2d at 1286.
Id. at 1288.
Id. at 1288, n.9 (quoting Comment (a) to Section 433B of the Restatement (Second) of Torts).
Sacks v. Mambu, 632 A.2d 1333 (Pa. 1993); O’Rourke on behalf of O’Rourke v. Rao, 602
A.2d 362 (Pa. Super. 1992); Clayton v. Sabeh, 594 A.2d 365 (Pa. Super. 1991).
N.T. January 10, 2017, pp.143–44.
Id. at pp. 145, 157, 189.
MIIX Ins. Co. v. Epstein, 937 A.2d 469, 472 (Pa. Super. 2007) (quoting Builders Supply Co.
v. McCabe, 77 A.2d 368, 370 (Pa. 1951)).
Sirianni v. Nugent Bros., Inc., 506 A.2d 868, 871 (Pa. 1986); Kinney-Lindstrom v. Med. Care
Availability and Reduction of Error Fund, 73 A.3d. 543, 558 (Pa. 2013) (“[i]ndemnity is a
common law remedy which shifts the entire loss from one who has been compelled, by reason of
some legal obligation, to pay a judgment occasioned by the initial negligence of another who
should bear it.”) (quoting Willet v. Pa. Med. Catastrophe Loss Fund, 702 A.2d 850, 854 (Pa.
42 Pa. C.S.A. § 8324.
Id. § 8322.
MIIX Ins. Co., 937 A.2d at 472 (quoting Swartz v. Sunderland, 169 A.2d 289, 291 (Pa.
Id.; see also Swartz, 169 A.2d at 225–226.
Fleck v. KDI Sylvan Pools, Inc., 981 F.2d 107, 117 (3d Cir. 1992).
42 Pa. C.S.A. § 8321.
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