Dixon v. United States, Civil Action No. 15-23502-Civ-Scola
| Decision Date | 28 April 2017 |
| Docket Number | Civil Action No. 15-23502-Civ-Scola |
| Parties | Marla Dixon and Earl Reese-Thornton, Sr., individually and as parents and natural guardians of Earl Reese-Thornton, Jr., Plaintiffs v. United States of America, Defendant. |
| Court | U.S. District Court — Southern District of Florida |
The Plaintiffs bring this action under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671, et seq., and Florida law, alleging that doctors at a federally supported health center committed medical malpractice during the birth of Marla Dixon's and Earl Reese-Thornton, Sr.'s son, Earl Jr. The Amended Complaint (ECF No. 34) alleges that, on December 2, 2013, Plaintiff Marla Dixon went into labor and was admitted to North Shore Medical Center ("North Shore"). Dr. Ata Atogho, an employee of the Jesse Trice Community Health Center ("Jessie Trice"), was the delivering doctor. Dixon's pregnancy had not been diagnosed as high risk. However, during labor the baby's heart rate decelerated. The United States alleges that Dr. Atogho advised Dixon to undergo a caesarean section ("C-section"), but Dixon refused. The Plaintiffs allege that Dixon requested a C-section several times, and that Dr. Atogho refused, telling her to "keep pushing." Dixon ultimately delivered Earl Jr. vaginally after Dr. Atogho used a "Kiwi" vacuum three times during the delivery. The vaginal delivery caused Earl Jr. to have irreversible brain damage.
Count One of the Complaint asserts an FTCA claim against the United States for the medical negligence of Dr. Atogho. Count Two asserts an FTCA claim against the United States for the vicarious liability of Jessie Trice for Dr. Atogho's negligence. Plaintiffs seek the following damages for Earl Jr.: past and future pain and suffering; loss of capacity for the enjoyment of life; permanent and total disability; loss of capacity to earn money or be gainfully employed in the future; past and future disfigurement and scarring; past and future mental anguish; past economic damages, including medical expenses; future medical expenses; and supportive, palliative, rehabilitative, nursing care and treatment for the rest of his life. Plaintiffs Dixon and Thornton, Sr. seek past and future non-economic damages, including but not limited to, mental pain and suffering; and past and future loss of filial consortium.
Both parties filed motions for summary judgment. The Court granted summary judgment on the limited factual issue that the vaginal birth of Earl Jr. led to his injuries, but did not grant summary judgment with respect to the issue of legal causation. (Order on Cross Mtns. for Summ. J., ECF No. 110.) The Court also granted summary judgment on the factual issue that Dixon was a Medicaid recipient at the time of Earl Jr.'s birth. (Id.) The issues remaining to be determined are: (1) the standard of care that Dr. Atogho owed to the Plaintiffs; (2) whether Dr. Atogho breached the applicable standard of care; (3) if Dr. Atogho breached the standard of care, whether the breach proximately caused Earl Jr.'s injuries; (4) whether any party or non-party caused or contributed to Earl Jr.'s injuries; (5) the amount of damages, if any, due Plaintiffs; and (6) whether any damages should be reduced, limited, or set-off pursuant to Florida Statute Sections 766.118 and 768.
On March 9, 10, 14 and 20, 2017, the Court held a non-jury trial. Prior to the trial, the parties submitted their pretrial stipulations (ECF Nos. 106, 107), as well as their proposed findings of fact and conclusions of law (ECF Nos. 112, 114.) The Court has carefully reviewed these submissions. After considering the credible testimony and evidence, and the applicable law, the Court finds that Dr. Atogho breached the standard of care by not offering a C-section to Dixon and such breach caused the injuries to Earl Jr. As a result, the Court finds in favor of the Plaintiffs on Counts One and Two of the Complaint. The Court awards the Plaintiffs a total of $33,813,495.91.
Irene Dixon (by videotaped deposition taken May 25, 2016)
After obtaining consent from the parties during the Calendar Call on February 28, 2017, the Court watched the videotaped deposition of Irene Dixon in chambers on March 2, 2017.
Irene is 57 years old and has resided in Jacksonville, Florida for the past 47 years. She has never been to Miami. She is the mother of Marla Dixon, having adopted her at the age of eight. Irene has been diagnosed with memory problems and is taking Aricept.
Marla has two brothers: Derrick Dixon and Darrell Dixon. Marla lived with Irene until Marla graduated from high school. After she graduated from high school, Marla moved to Miami. Once Marla was in Miami, Irene had contact with her two years later when Marla called to say she was pregnant and on the way to the hospital to have a boy and everything was fine. After thebaby was born, Marla called again and said she had a boy named Earl. A day or two after the birth, Marla called again to say the doctor and nurse told her the baby had brain damage. Approximately two weeks after the birth, she learned about a law suit. In December 2013, Irene's son Darrel Dixon lived with her.
Irene saw the baby when he was brought to a hospital in Jacksonville by Marla. She visited the baby in the hospital. Marla has three children: Earl Jr., Serinity, and a third child whose name she cannot pronounce. Irene speaks to Marla by phone every couple of weeks. Irene has a good relationship with Earl Reese-Thornton, Sr. but does not see or speak to him very often.
Dr. Richard S. Boyer (by deposition transcript)
With the parties' agreement, the Court reviewed the deposition testimony of Dr. Boyer taken on September 21, 2016.
Dr. Boyer is licensed to practice medicine in Utah. He received his M.D. at the University of Utah and is board-certified by the American Board of Radiology and Diagnostic Radiology. He holds certificates of added qualification in neuroradiology and pediatric radiology and currently limits his practice to pediatric radiology. Dr. Boyer has given over a hundred depositions and has consulted for cases in Florida but has never testified in Florida.
Dr. Boyer disagrees with two findings or observations reflected in Dr. Sze's report. They both agree that Earl Jr. suffered a hypoxic ischemic injury but Dr. Sze described the pattern of injury as a mixed type "with elements of both the acute profound pattern and the partial prolonged pattern." Dr. Boyer does not use the term "partial prolonged." Dr. Boyer refers to this as a total cortical pattern and in parentheses, near total brain pattern. The distinction between the two doctors is more in the nomenclature.
There are a couple of issues of timing where Dr. Boyer does not completely agree with Dr. Sze. Under the heading "Timing of Injury," subheading "Ultrasound," Dr. Sze wrote, "Abnormalities are generally detected after approximately 24 hours and demonstrated better in the subsequent 24 hours." Dr. Boyer believes we can see abnormalities on ultrasound earlier than 24 hours and he uses the window of 12 to 24 hours for when abnormalities may be seen on ultrasound after a hypoxic ischemic brain injury. Dr. Boyer has reviewed hundreds of ultrasounds of neonates within the first 24 to 48 hours.
Dr. Sze also writes that he would have thought that Earl Jr.'s ventricles would have opened by 24 hours, and the fact that they did not means that there may have been cerebral edema from injury and that it generally takes two days for that to happen. So, Dr. Sze is pushing the time when the injuryoccurred prior to labor and Dr. Boyer disagrees with that. Dr. Boyer believes that the literature establishes that it takes two to three days for this phenomenon of reopening to occur; it's a normal phenomenon for the small ventricles to open up after the baby is born. Dr. Boyer believes the ventricles follow that pattern so he disagrees with Dr. Sze. Dr. Boyer believes there are objective criteria upon which to base the timing of the injury based upon the openness of the ventricles in a neonate. Marvin Nelson wrote a paper in Pediatric Radiology in 2003 and there was a supportive paper in 2010.
During the birthing process, as the baby is head-down in the womb and the uterus contracts, it squeezes the baby's head and it tends to squeeze fluid out of the ventricles, which are fluid spaces inside the brain and squeezes out fluid spaces around the brain. As the baby goes through the birth canal, that process occurs, and so it is like wringing out a sponge, and it's a normal phenomenon. From Dr. Nelson's paper, when they looked at over 100 ultrasounds in the first 24 hours of life, about 80 percent of babies had small ventricles. It's over the next 2 to 3 days that the ventricles will open up to normal size so the fluid re-accumulates in the brain and around the ventricles, and that's a normal phenomenon.
That may or may not be affected by an ischemic event. Many hypoxic ischemic injuries to the brain are very discrete in terms of the parts of the brain that are injured and it's not a sufficient enough portion of the brain to affect the ventricular size. So, some people make the mistake in trying to make that jump. You have to know what parts of the brain were affected and how much.
In some cases of hypoxic ischemic injury, less commonly in neonates and more commonly in older children and adults, there's a fairly predictable curve or process of swelling of the brain which begins to be recognizable between about 24 and 48 hours. It lasts for a maximum of between 48 and 72 hours and then wanes and gets back to its normal size by the end of five to seven days. That is the classic edema course.
Babies don't usually follow that for a couple of reasons. First, there is the superimposed reopening phenomenon. Second, babies have more fluid in and around their brains than older children and adults do. Third, is that babies have open...
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