Late et al v. United States of America

Filing 121

FINDINGS OF FACT AND CONCLUSIONS OF LAWSigned by Honorable Sylvia H. Rambo on 4/20/17. (ma)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
CHRISTINA LATE and NATHAN
ARMOLT, as parents and natural
guardians of D.A., a minor, and in
their own right,
Plaintiffs,
v.
UNITED STATES OF AMERICA,
Defendant.

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Civ. No. 1:13-CV-0756

Judge Sylvia H. Rambo

FINDINGS OF FACT & CONCLUSIONS OF LAW
I.

Background
On March 22, 2013, Plaintiffs filed a complaint against the United States

pursuant to 42 U.S.C. § 1346(b)(1) of the Federal Tort Claims Act related to
injuries sustained by minor-Plaintiff D.A. during his birth. (Doc. 1.) After
unsuccessful attempts at mediation and settlement (Docs. 9 & 46), and a
subsequent two-year stay to allow more time to accurately gauge D.A.’s
development and the effects of his brain injury (Doc. 53), a six-day bench trial
commenced on September 19, 2016. Based on the evidence submitted at that trial,
the court now sets forth its findings of fact and conclusions of law.

II.

Findings of Fact
Pregnancy and Birth of D.A
1. D.A. was born on February 21, 2012 at Keystone Women’s Health

Center, a federally supported community health center.
2. Plaintiffs Christina Late and Nathan Armolt are the parents and natural
guardians of D.A.
3. Ms. Late graduated high school in 2003 and subsequently attended
Shippensburg University for one year. She then obtained a diploma in medical
billing, coding, and transcription from the Computer Learning Network. Ms. Late
has worked as a service professional at Olive Garden restaurant for nine years, and
is a full-time employee.
4. Mr. Armolt is a high school graduate and is employed as a distribution
professional in an Amazon warehouse.
5. Dr. Thomas Orndorf is an obstetrician employed by Keystone Women’s
Health Center and was an employee of the United States.
6. Dr. Orndorf delivered D.A. on February 21, 2012.
7. During prenatal care, Ms. Late was also under the care of Hilary Ginter,
M.D., who is board-certified in obstetrics and gynecology.
8. Throughout Ms. Late’s prenatal care with Keystone Women’s Health
Center her pregnancy was normal.
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9. Sometime before 10 p.m. on February 20, 2012, Ms. Late presented at
Chambersburg Hospital with complaints of contractions and leaking of fluid.
10. Dr. Ginter was the attending physician on-call between 6 p.m. and 7 a.m.
the following morning. Dr. Ginter stayed at the hospital while on call.
11. During the initial six hours of labor after admission, Ms. Late had
regular contractions. Ms. Late also had two episodes of vomiting during
contractions, a symptom she also experienced during the delivery of her first child.
12. Dr. Ginter testified she had no concerns with respect to Ms. Late’s
progress at any time during the night. Ms. Late had a normal labor curve
throughout the night, with normal progress of dilation and station.
13. Dr. Ginter also testified she did not have any concerns regarding the fetal
heart tracings or fetal well-being at any time.
14. At 7 a.m., Dr. Orndorf assumed physician care of Ms. Late.
15. Neither Dr. Orndorf nor any of the nurses expressed any concern
regarding Ms. Late’s labor or progress, or about the baby’s heart rate or that the
baby was “stuck.”
16. Dr. Orndorf did not explain to Ms. Late that any type of intervention was
necessary, including the use of forceps.
17. At 7:39 a.m., after only one push, Dr. Orndorf applied Laufe forceps.
18. Dr. Orndorf pulled once and then removed the forceps.
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19. Although the baby was not yet crowning, Dr. Orndorf re-applied the
forceps and forcefully pulled three more times. During this period, Dr. Orndorf
was straining, red-faced and sweaty.
20. Dr. Orndorf removed the forceps. With maternal pushing, baby D.A. was
delivered.
21. D.A. weighed 3,909 grams at birth. At one minute, he had an Apgar of 7;
at five minutes, his Apgar score was 9.
22. Upon initial assessment, D.A.’s head showed moulding and forceps
marks.
23. Dr. Orndorf admitted that Ms. Late made normal progress during the
three stages of labor.
24. Dr. Orndorf admitted that progress from a -1 station at 5:31 a.m. to a +1
station at 7:30 a.m. reflected a good rate of descent.
25. Dr. Orndorf admitted it is common in labor to have variable
decelerations and late decelerations. He also admitted that a return to baseline,
accelerations, and good variability after a deceleration in fetal heart rate are
reassuring and normal. He also admitted that Category 2 decelerations are common
in labor.
26. Dr. Orndorf admitted vomiting is a common occurrence for women in
labor, which does not raise any concerns.
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27. Dr. Orndorf admitted that, when he began the delivery, the fetal heart
tracings were reassuring with accelerations of more than ten beats per minute and
variability.
28. Dr. Orndorf admitted that, at 7:30 a.m., there was no concern for
immediate fetal compromise.
29. Dr. Orndorf also admitted that he had no concern about the adequacy of
Ms. Late’s pushing or her efforts in pushing.
30. Dr. Orndorf admitted that forceps can increase the risk of injury to mom
and baby.
31. Dr. Orndorf also admitted that the higher the baby is positioned in the
birth canal at the time forceps is applied, the risk of injury is also higher.
32. Dr. Orndorf admitted he expected Ms. Late to have an easy delivery.
33. Dr. Orndorf admitted protraction of the first stage of labor is never an
appropriate indication for forceps delivery.
34. Dr. Orndorf admitted the policy at Chambersburg Hospital and at
Keystone Women’s Health Center was to use the American College of Obstetrics
and Gynecology guidelines as best practices.
35. Dr. Orndorf admitted that American College of Obstetrics and
Gynecology guidelines provide the only indications for a forceps delivery is a

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prolonged second stage, where the mother is pushing for two hours, concern over
maternal effort, and suspicion of immediate potential fetal compromise.
36. Dr. Orndorf stated there was no prolonged second stage, no concern for
maternal effort, and no suspicion of immediate fetal compromise. Also, Dr.
Orndorf applied forceps at 7:39 a.m., while D.A. was at +1 station, which is
considered a “mid-forceps” delivery that poses a higher risk to the baby.
37. Dr. Orndorf testified that, following birth, D.A.’s Apgar scores were
normal at one minute and five minutes. He admitted that he had no concerns about
baby D.A.’s well-being at the time, or about any pre-labor injury. Dr. Orndorf
testified that he did not order a lab test for cord blood gas, as he had no concerns
about D.A. having suffered hypoxia.
Dr. Orndorf’s Negligence
38. Dr. Andrew Gerson is a board-certified obstetrician-gynecologist with a
subspecialty in maternal-fetal medicine. Maternal-fetal medicine focuses upon
risks to the mother and child during pregnancy.
39. Dr. Gerson serves as a peer reviewer for both Obstetrics and Gynecology
and the American Journal of Obstetrics and Gynecology. A peer reviewer is a
physician recognized as an authority in a specific area of medicine.
40. Dr. Gerson is also familiar with the standard of care for an obstetrician
performing an operative delivery with forceps.
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41. The court qualified Dr. Gerson as an expert in obstetrics and maternalfetal medicine, and finds that Dr. Gerson provided all of his opinion testimony to a
reasonable degree of medical certainty.
42. Dr. Gerson testified that D.A.’s fetal heart tracings from 10 p.m. until 7
a.m. were normal with minimal or moderate variability, which predicted a
vigorous, well-oxygenated baby that one would expect to have normal Apgar
scores, as D.A. did.
43. Dr. Gerson stated that intermittent decelerations are typical in 95 percent
of labors. Nothing in the tracings during any part of the labor raised any unusual
concerns.
44. Dr. Gerson testified that mid-forceps deliveries are only indicated under
severe emergencies that are either life threatening to the mother or to the baby
because of the high and frequent risk of harm, including a high rate of skull
fractures.
45. Dr. Gerson noted that Dr. Orndorf admitted at his deposition that his
delivery of D.A. was a mid-forceps delivery.
46. Dr. Gerson testified that the fetal heart tracings remained reassuring up
until delivery and did not indicate a need for intervention.
47. There was never a risk of immediate fetal jeopardy during the course of
Ms. Late’s labor.
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48. Dr. Gerson opined that Dr. Orndorf deviated from the standard of care
because neither the mother nor baby suffered from any condition for which use of
forceps was indicated.
49. Dr. Gerson noted that forceps delivery when the baby is occiput
posterior, like D.A. was, has a 2.5 times increase in the risk of birth trauma.
50. Dr. Gerson described how forceps are to be applied and that the
application of forceps to D.A. deviated from the standard of care and caused his
skull fractures.
D.A.’s Injuries and Developmental Issues
51. Dr. Neal Madan qualified as an expert in pediatric neuroradiology, and
all of his opinions were given to a reasonable degree of medical certainty.
52. Dr. Mark Dias qualified as an expert in pediatric neurological surgery
and neurotrama, and all of his opinions were given to a reasonable degree of
medical certainty.
53. Dr. Eric Marsh qualified as an expert in pediatric neurology with special
qualifications in child neurology, clinical neurophysiology and pediatrics, and all
of his opinions were given to a reasonable degree of medical certainty.
54. Plaintiffs’ medical experts opined that Dr. Orndorf’s traumatic forceps
delivery caused D.A. multiple skull fractures, pervasive bleeding in the brain, and
severe destruction to the cerebellum and brain stem. These injuries caused D.A. to
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suffer breathing difficulties, seizures, headaches, inability to sleep, and multiple
brain surgeries.
55. As a result of his traumatic birth, D.A. suffered fractures of the occipital
and parietal bones, which in turn caused extensive bleeding within the cerebellum.
The resulting hydrocephalus, hemorrhaging, and swelling in D.A.’s brain created a
mass effect, pushing the brain stem against his skull and causing an acquired
Chiari malformation as well as encephalomalacia, which is permanent damage to
large areas of his brain’s white matter.
56. As a result of the hydrocephalus, D.A. had to have a shunt placed in his
brain to drain the excess fluid.
57. To date D.A. has had six brain surgeries and is at risk of needing shunt
revisions that will require future surgeries.
58. Dr. Marsh opined that D.A.’s brain will never recover from its injuries.
The brain is incapable of healing because there is no re-cell growth. D.A. will
suffer from dysmetria, ataxia, and hemiparesis his entire life. He will always have
mis-coordination of limb movements, uneven gait, and weakness on his right side,
which will limit his ability to function.
59. Although he may make some progress, he will not become neurotypical.

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60. Dr. Lee Ann Annotti qualified as an expert in psychology,
neuropsychological evaluations, and psychoeducational assessments of children,
and all of her opinions were given to a reasonable degree of medical certainty.
61. Dr. Annotti stated that D.A. has delays in communication, including
expressive communication, and has deficits with social-emotional functioning,
adaptive functioning, problem-solving cognition, and motor development.
62. Dr. Annotti concluded that D.A. deficits are pervasive and will impact
him for his entire life.
63. D.A. understands language, but is unable to express himself, reason or
use language appropriately.
64. D.A. is operating at a 50% delay with respect to abstract reasoning,
problem solving, and cognitive skills that are very important to functioning in the
world.
D.A.’s Future Prognosis
65. D.A. has and will continue to have severe intellectual disability which
will require life-long supervision and likely residential placement in an appropriate
facility.
66. D.A. has and will continue to have significant deficits in socialemotional, motor, and cognitive functioning that negatively affects his

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development currently and will continue to negatively affect his functioning over
his lifetime.
67. D.A. will not be able to live independently.
68. D.A. will not be able to functionally read, write, or solve abstract
problems.
69. D.A. will not be able to manage his adult life, care for himself, or
manage his personal finances.
70. D.A. will be unable to drive a car.
71. D.A. fatigues quickly and currently relies on a stroller. In the future,
D.A. will need a motorized wheelchair as he is too weak to roll a wheelchair
himself. He will also require a van capable of transporting the motorized
wheelchair.
72. D.A.’s most profound weaknesses are in executive functioning, memory,
language skills, motor skills, social-emotional, sensorimotor functioning and
sensory weaknesses.
73. D.A.’s language skills will impact his relationships as he will be unable
to communicate and have conversations with same age peers. He will be unable to
participate in a relationship that requires mutual give and take and mutual
understanding.
74. Although D.A. does not have autism, he displays autistic behavior.
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75. As D.A. has grown older, he has continued to have aggressive emotional
outbursts, including crying and striking his parents, sibling, and teachers.
76. As of May 2014, D.A.’s life expectancy was an additional 74.8 years, his
father’s life expectancy was an additional 40.3 years, and his mother’s was an
additional 52.9 years.
77. D.A. is expected to outlive both of his parents by approximately 22
years.
78. The court finds that at age 22, D.A. will be too difficult for his parents to
handle in the home and he will be required to go to an assisted living facility for
care.
79. D.A. will require physical, vocational, and speech therapy, as well as
counseling, at least up until age 22.
80. Mona Yudkoff qualified as an expert in rehabilitative nursing, case
management and life care plans, pediatric rehabilitative nursing, and pediatric case
management and healthcare plans, without objection from defense counsel.
81. A life care plan is a determination of what services are required for an
individual to function that would not have been required absent a specific injury.
82. In preparation for her life care plan for D.A., Ms. Yudkoff reviewed
medical records, expert reports, school records, and therapy notes.

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83. The life care plan prepared by Ms. Yudkoff is reasonable and medically
necessary.
84. D.A. will require medical surveillance by various physicians in the
nature of neurological testing, shunt replacement, orthopedics, and MRIs.
85. D.A. will require behavioral, educational, and language therapies during
school years, from age 4 to 21.
86. D.A.’s parents will require counseling to cope with D.A.’s behavioral
and educational modifications until he is age 22.
87. Attendant care will be required to supervise D.A. after school and on
non-school days.
88. D.A. will require placement in a long term care facility by age 22.
89. D.A. will require future surgeries related to his shunt.
Damages
90. Plaintiffs have incurred $103,967.10 in past medical expenses caused by
D.A.’s birth injuries.
91. Plaintiffs will incur $200,000 in future medical costs for future surgeries
on D.A.’s brain.
92. D.A. will require future medical surveillance in the nature of
neurological testing, shunt replacement, opthamological exams, orthopedics, and
MRIs as follows:
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a. From age 4 to 21, $1,910 per year for a total of $34,380.
b. From age 22 to life, $1,071 per year for an estimated 54.9 years for
a total of $58,797.90.
93. D.A. will require behavioral, educational, language and other therapies
during his school years from age 4 to 21 at an annual cost of $69,984 for a total of
$1,259,712.
94. D.A. will require attendant care to aid in his supervision and care at a
discounted annual rate of $25,184 while D.A. is age 4 to 12, for a total of
$226,656, and then at an annual rate of $49,634 for ages 13 to 21 for a total of
$446,706.
95. From age 22 to life (a period estimated to last 54.9 years), D.A. will
require placement at a long term care facility at a rate of $128,480 per year for a
total of $7,053,552.
96. When D.A. enters a long term care facility, he will no longer need
outside behavioral, educational, language, and other therapies, nor will he require
case management not provided by the facility.
97. The total present-day cost of D.A.’s future medical and attendant care,
based on the report of Ms. Yudkoff minus the deductions stated in Paragraph 96 of
this memorandum, is $9,279,803.90.

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98. The future value of D.A.’s economic damages contained in his life care
plan, as calculated by Mr. Lally on a year-by-year basis, minus the reductions
stated in Paragraph 96 of this memorandum, is $32,994,383.50.
99. D.A. has lost his ability to earn wages from gainful employment in the
future, and has lost the opportunity to receive the fringe benefits that would have
been associated with his future employment. The court finds that D.A.’s lost
earning potential is based on his attainment of an associate’s degree and being
employed during his work life expectancy.
100. D.A. has endured past pain and suffering, and will suffer from pain,
embarrassment, humiliation, and loss of life’s pleasures in the future. D.A.’s
injuries occurred at birth and will cause him to suffer for the entirety of his life.
The brain injuries are severe, permanent, and will prevent D.A. from performing
life’s basic functions and caring for himself.
101. D.A.’s disfigurement is permanent in the form of a large scar on the
back of his head due to his brain surgeries, and his shunt drainage tubing is visible
under his skin. D.A. is also disfigured in the form of both increased and decreased
tone, which causes him weakness on his right side as well as an uneven gait.

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III.

Conclusions of Law
1. The parties do not dispute that Pennsylvania law applies to Plaintiffs’

medical malpractice claim, which sounds in negligence.
2. Under Pennsylvania law, a plaintiff in a medical malpractice action must
establish: (1) a duty owed by the physician to the patient; (2) that the physician
breached that duty; (3) that the breach was a proximate cause of, or a substantial
factor in, bringing about the harm suffered by the patient; and (4) the patient
suffered damages as a direct result of the harm. See Toogood v. Rogal, 824 A.2d
1140, 1145 (Pa. 2003).
3. The Pennsylvania Medical Care Availability and Reduction of Error Act
(“MCARE”) allows for plaintiffs in a medical malpractice action to recover both
economic and non-economic losses. See 40 Pa. Cons. Stat. § 1303.509. MCARE
provides that the trier of fact shall make separate determinations for loss of
earnings, past and future non-economic damages, and past medical and other
related expenses in lump sums, as well as future medical and related expenses by
year. See id.
4. When considering future damages, the trier of fact “may incorporate into
any future medical expense award adjustments to account for reasonably
anticipated inflation and medical care improvements as presented by competent
evidence.” Id. at § 1303.509(b)(2). “In the context of a claim for future medical
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expenses, the movant must prove, by expert testimony, not only that future medical
expenses will be incurred, but also the reasonable estimated cost of such services.”
Keifer v. Reinhart Foodservices, LLC, 563 F. App’x 112, 116 (3d Cir. 2014)
(quoting Mendralla v. Weaver Corp., 703 A.2d 480, 485 (Pa. Super. Ct. 1997)).
5. As to non-economic damages, the trier of fact may award damages based
on the plaintiff’s pain and suffering, embarrassment and humiliation, loss of ability
to enjoy the pleasures of life, and disfigurement. See Catlin v. Hamburg, 56 A.3d
914, 924-25 (Pa. Super. Ct. 2012). In determining the amount of damages, the trier
of fact is to consider:
(1) the age of the plaintiff; (2) the severity of the injuries;
(3) whether the injuries are temporary or permanent; (4)
the extent to which the injuries affect the ability of the
plaintiff to perform basic activities of daily living and
other activities in which the plaintiff previously engaged;
(5) the duration and nature of medical treatment; (6) the
duration and extent of the physical pain and mental
anguish which the plaintiff has experienced in the past
and will experience in the future; (7) the health and
physical condition of the plaintiff prior to the injuries;
and (8) in case of disfigurement, the nature of the
disfigurement and the consequences for the plaintiff.
Pa. R. C. P. 223.3.
6. Dr. Orndorf was acting within the scope of his employment when he
delivered D.A. through the unnecessary use of forceps.
7. Dr. Orndorf’s delivery of D.A. on February 21, 2012 fell below the
standard of care and as such was negligent.
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8. Dr. Orndorf’s negligence was a direct and substantial factor in causing
D.A.’s injuries.
9. D.A. suffered harm and resultant damages from the injuries inflicted
upon him by Dr. Orndorf.
10. Pursuant to the FTCA, Dr. Orndorf was an employee of the United
States, and the United States is thereby liable for his negligent conduct within the
scope of his employment. See 28 U.S.C. § 1346(b)(1).
11. The parents of D.A. are entitled to recover $103,967.10 from the United
States in a lump sum for past medical expenses and to pay off a lien.
12. The United States is liable and shall pay to D.A.’s parents or legal
guardian the sum of $32,994,383.50 for D.A.’s future medical and attendant care.
Payments for future years shall be made pursuant to MCARE, 40 Pa. Cons. Stat.
§ 1303.509.
13. The United States is liable and shall pay on behalf of D.A. the following
in a lump sum:
a. pain and suffering, loss of life’s pleasures, humiliation, and
disfigurement for the past and the future the sum of $5,000,000.
b. for loss of earning capacity, based on attaining an associate’s
degree and working through his work life expectancy, the sum of
$2,733,551.
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c. for loss of the value of fringe benefits the sum of $820,065.
14. The aforesaid sums shall be paid into a trust fund account or other plan
which shall be approved by both parties and submitted for approval by this court.

s/Sylvia H. Rambo
SYLVIA H. RAMBO
United States District Judge
Dated: April 20, 2017

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