1st of America Bank, Mid-Michigan, NA v. US

• Decision Date: 10 December 1990
• Docket Number: No. 87-CV-74774-DT.,87-CV-74774-DT.
• Parties: 1ST OF AMERICA BANK, MID-MICHIGAN, N.A., Successor Conservator of the Estate of Michaela King, a minor; Lucinda E. King, individually; and Robert W. King, individually, Plaintiffs, v. The UNITED STATES of America, Defendant.
• Court: U.S. District Court — Western District of Michigan

752 F. Supp. 764

1ST OF AMERICA BANK, MID-MICHIGAN, N.A., Successor Conservator of the Estate of Michaela King, a minor; Lucinda E. King, individually; and Robert W. King, individually, Plaintiffs, v. The UNITED STATES of America, Defendant.

No. 87-CV-74774-DT.

United States District Court, E.D. Michigan, S.D.

December 6, 1990.

As Amended December 10, 1990.

John W. Grigg, John W. Piggott, Seward, Tally & Piggott, P.C., Bay City, Mich., for plaintiffs.

James A. Brunson, Asst. U.S. Atty., Bay City, Mich., Lt. Col. Michael L. Fox, Claims & Tort Litigation Staff, Washington, D.C., for defendant.

OPINION

GILMORE, District Judge.

This is a complicated medical malpractice case brought against the United States under the Federal Torts Claim Act, 28 U.S.C. 2671, et seq., (FTCA) alleging medical malpractice by physicians at the Wurtsmith Air Force Base, Oscoda Michigan, in the delivery and resuscitation of Michaela King on September 5, 1985.

In a trial lasting more than two weeks, 19 physicians testified for Plaintiff and Defendant.¹ For the reasons set forth herein, the Court determines that the Air Force physicians were guilty of malpractice, and that that malpractice was a proximate cause of the cerebral palsy, cortical blindness, and retardation of Michaela King.

I

Lucinda E. King, wife of Airman First Class Robert W. King, consulted physicians at Wurtsmith Air Force Base in February of 1985 for prenatal care. An ultrasound at approximately 8 weeks indicated a due date of September 25, 1985. In the early weeks of the pregnancy, Mrs. King experienced some vaginal bleeding, which was stopped with bed rest. Testimony of all physicians who considered the bleeding was that it was not unusual and did not indicate a high risk pregnancy. Mrs. King had regular prenatal care, but missed a July appointment because she went to Eugene, Oregon, for a period of over a month to help care for her mother, who was recuperating from surgery. The pregnancy proceeded normally.

On September 4, 1985, Mrs. King had a spontaneous rupture of membranes — her water broke. She was admitted to Wurtsmith Air Force Base Hospital at 12:30 p.m., and was instructed to walk the halls during the day, in an effort to naturally induce labor. She had occasional contractions, but did not go into labor. The fetus was intermittently monitored with an external fetal monitor, and Mrs. King stayed overnight at the hospital.

When labor had not begun by the following morning, labor was induced by use of the drug Pitocin, which causes uterine contractions. The drug was administered through an IV, and was periodically increased through the course of the labor. The induction began at 6:45 a.m. in a labor room. Mr. King was present throughout the labor and delivery. The contractions and fetal heart rate were monitored with an external fetal monitor. Testimony was conflicting about whether the monitor was working properly on this day, or whether it could properly monitor contractions in light of Mrs. King's strong reactions to contractions.

At 9:45 a.m., Dr. Philip Lawrence, who had completed his shift for that day at 8:00 a.m., but was temporarily covering for the other obstetrician on the floor, Dr. Brad Epstein, performed a vaginal examination on Mrs. King. She was 4-5 cm. dilated and 90% effaced. At that time, she was experiencing a great deal of pain in her labor, and Nurse Christy Kinnaird asked Mrs. King if she wanted a pain killer. She stated that she did, and Dr. Lawrence ordered 10 mg. of a narcotic pain killer, Nisentil. Nurse Kinnaird administered the drug through the IV. At 10:50 a.m. Dr. Lawrence approved and Nurse Kinnaird administered an additional 20 mg. of Nisentil subcutaneously. No physician examined Mrs. King before she was given the second dosage, but Dr. Epstein saw her at 11:05 a.m., and that examination revealed that she was dilated 6-7 centimeters.

By 11:20 a.m., Mrs. King was completely dilated and 100% effaced. She was experiencing uncontrollable urges to push. The fetal heart monitor was disconnected, and she was rushed to the delivery room. Dr. Epstein performed a mid-line episiotomy. Mrs. King gave a mild push and delivered the baby's head. The doctor, based on his routine practice, suctioned the baby, and then rotated the baby and delivered the shoulders. He allowed Mr. King to pull the baby completely out. The child was a girl, named Michaela. Birth occurred at 11:31 a.m.

Dr. Epstein towelled off the baby and placed her on her mother's chest and abdomen. The baby did not cry or move. He then draped the baby with another towel and gently rubbed her. Nurse Kinnaird encouraged Mr. King to take a picture, and he took one or two. Dr. Epstein then clamped the umbilical cord and allowed Mr. King to cut it. Dr. Epstein then drew blood from the umbilical cord and Nurse Kinnaird walked away to prepare the baby's armbands.

At some point, Mr. King asked "Why is my baby so blue?" and was informed that all newborns are blue.

At one minute after birth, Airman VanAsdale, a delivery room technician, performed the one minute APGAR, which was 0. The APGAR is an evaluation of an infant in five categories: heart rate, respiration, muscle tone, reflex irritability and color.²

Airman VanAsdale found no heartbeat in Michaela. When so informed, Dr. Epstein carried her to the warming table and placed her head slanting down. While he prepared to put a bag and mask on the baby, Nurse Kinnaird and Airman VanAsdale began tactile stimulation. When that was ineffective in resuscitating her, Nurse Kinnaird ran to the phone and called for Dr. Roberto Caro, a pediatrician. She asked that he come immediately.

Dr. Epstein placed the oxygen mask on Michaela and established an airway and Nurse Kinnaird began chest compressions. They continued using the bag and mask for one or two minutes, but Michaela did not gain color or show signs of vitalization. A five-minute APGAR indicated a score of one. Michaela's heart rate was 40 beats per minute, which is not sufficient to sustain circulatory perfusion. She had no other respiration, muscle tone or reflexes, and her color was still cyanotic.

Dr. Caro arrived in the delivery room and took over the resuscitation. He immediately placed an endotracheal tube through Michaela's mouth and into her trachea. It was stipulated that the tube was placed at 11:37, six minutes after Michaela's birth.³ Only after intubation did Michaela begin to turn pink and show signs of life.

At 11:40 a.m., Dr. Caro administered Narcan, a substance used to neutralize the depressant effects of Nisentil on a fetus. Michaela's 10 minute APGAR, done at approximately 11:41 a.m., was 5. At 11:46 a.m., the endotracheal tube was removed, but no testing of Michaela's blood gases was done before the tube was taken out because the hospital's machine for testing blood arterial gases was broken down. Her level of acidosis, a condition of decreased ph or increased acidity in the blood, and hypercarbia, a condition of increased carbon dioxide in the blood, were not checked.⁴ These, as well as asphyxia or hypoxia, a decrease of oxygen in the blood, can cause damage to brain cells. Michaela's blood pressure was never taken in the delivery room or later in the nursery. During the course of the resuscitation, Colonel Hartison, the hospital commander came to the delivery room and reassured Mr. King about what had just happened. Dr. Lawrence, the other obstetrician, also came into the delivery room.

After the baby's resuscitation, Dr. Epstein delivered Mrs. King's placenta and she was returned to the labor room. Mr. King accompanied Michaela to the nursery. Michaela was placed in an oxyhood with oxygen at 40%. Dr. Caro's initial examination of Michaela showed that she had a weak cry, had hypoactive (or decreased) muscle tone, was sluggish, had constricted pupils, had decreased reflexes and had a decreased Moro reflex. Her 15 minute APGAR was 8. Her head circumference was 32.5 cm. and her weight was 6 lbs. 12 oz. Dr. Caro ordered six hours of monitoring and was concerned about seizures developing in the first 24-48 hours as a result of the anoxic episode at birth.

During the course of the afternoon, a few alarms on the monitor went off when Michaela's breathing dropped below a certain level, but she spontaneously recovered from each of these episodes. Dr. Caro's check of Michaela at the end of the day demonstrated that she remained hypoactive and that her eyes were now slightly dilated. He was also concerned that the baby was not sucking or swallowing well and had trouble breast-feeding. He told the nursing staff to start an IV if Michaela did not feed better. Later that night, a nurse started the IV. Michaela did not cry when stuck with the needle. Thereafter, one of the nurses called Dr. Caro at home and described to him Michaela's facial grimaces and jerking movements, which were stilled when she was held. He determined these were not seizures and did not come in to check her.

Over the course of the next few days, Michaela remained floppy⁵, and continued to have difficulty feeding. In the first 24 hours, her head size, or at least the measurement of her head size, showed an increase of one centimeter, to 33.5 cm. She developed a slightly jaundiced condition. She was able make urine and pass meconium. On September 9, 1985, after being kept in the hospital one additional day, Michaela was discharged. Her discharge diagnosis, made by Dr. Adam Mezoff, Chief of Pediatrics at Wurtsmith Air Force Base Hospital, was "severe perinatal asphyxia," "abnormal neurological examinations secondary to above." The Kings were told to watch for seizure activity.

Michaela returned to the hospital on Sept. 11, 1985, because Dr. Caro had ordered a brain ultrasound, or echoencephalography to determine if Michaela's precipitous birth could have caused any hemorrhaging into the brain. Michaela was still floppy, but the results of the brain ultrasound were negative.

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