Yong Juan Zhao ex rel. Zhao v. United States
| Decision Date | 22 August 2019 |
| Docket Number | Case No. 17-454-NJR-GCS |
| Citation | 411 F.Supp.3d 413 |
| Parties | YONG JUAN ZHAO, ON BEHALF OF her minor son, Steven ZHAO, Plaintiff, v. UNITED STATES of America, Defendant. |
| Court | U.S. District Court — Southern District of Illinois |
Kelly T. Crosby, Thomas Q. Keefe, III, Thomas Q. Keefe, Jr., Keefe, Keefe & Unsell, PC, Belleville, IL, for Plaintiff.
Adam E. Hanna, Laura J. Barke, Assistant U.S. Attorney, Fairview Heights, IL, for Defendant.
Yong Juan "Maggie" Zhao filed this medical malpractice action under the Federal Tort Claims Act ("FTCA") on behalf of her young son, Steven Zhao.1 Mrs. Zhao alleges that negligent care by her physician, Dr. Paul Cruz, during her pregnancy with Steven resulted in shoulder dystocia and permanent injury to Steven's right brachial plexus.
The Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §§ 1346(b) and 2674. At the time of his treatment of Mrs. Zhao, Dr. Cruz was an employee of Christopher Greater Area Rural Health Planning Corporation ("CRHPC"), a federally supported grant clinic, and thus he is deemed an employee of the United States Public Health Service in accordance with 42 U.S.C. § 233(g). Venue is uncontested and proper as CRHPC operates within, and Dr. Cruz and the Zhao family reside in, the Southern District of Illinois. The alleged negligence giving rise to Mrs. Zhao's claim also occurred in the Southern District of Illinois. And it is likewise uncontested that Mrs. Zhao exhausted her administrative remedies with the United States Department of Health and Human Services by submitting an administrative tort claim seeking damages in the amount of $30,000,000.
The Court conducted a bench trial from April 9-10, 2019, and now makes the following findings of fact and conclusions of law.
Dr. Paul Cruz is a now-retired obstetrician/gynecologist ("OB/GYN") who obtained his Illinois medical license in 1988 and practiced for twenty-eight years (Doc. 51, pp. 516-17). He was born in New York and attended school, including medical school, in Puerto Rico (Id. ). As he did at CRHPC, throughout his career Dr. Cruz focused his obstetrical practice on treating mainly underserved, Medicaid-dependent women (Id. at pp. 518-19). Ms. Zhao was not a patient of Dr. Cruz until her pregnancy with Steven (Doc. 46, p. 48).
Steven Zhao is the fourth child born to Maggie and Zhi Qiang Zhao (Id. at p. 351). Steven has three older brothers: Kevin, Alex, and Benjamin (Id. at pp. 351-52). The parties stipulated that Mrs. Zhao gave birth to the three older boys via vaginal delivery with no complications (Doc. 41). Her second son, Alex, was a very large baby, weighing eleven pounds, twelve ounces (Ex. 10, p. 4). Mrs. Zhao later estimated that her labor with Alex lasted six hours, but she was unfamiliar with what the "second stage of labor" denoted (Doc. 48, pp. 360, 386). To effect Alex's delivery, Mrs. Zhao had to give birth seated on the edge of a chair bending her chest toward her knees while a doctor or nurse on each side helped hold her up, another doctor pressed on her abdomen, and another doctor was underneath her to get the baby out (Id. at p. 360). Mrs. Zhao testified that she told Dr. Cruz about the maneuvers required for Alex's delivery, but neither he nor anyone in his office asked her how long her labor with Alex lasted (Id. ).
Mrs. Zhao was thirty-five years old when Steven was born (Ex. 18, p. 2). Her pregnancy with Steven was unplanned (Id. at p. 354). After Steven's birth, Mrs. Zhao underwent a fallopian tube occlusion procedure for the purpose of permanent birth control, performed by Dr. Cruz (Id. ). That procedure failed, so Mrs. Zhao chose an intrauterine device ("IUD") to prevent future pregnancies (Id. at pp. 354-55; Doc. 51, pp. 548-50).2
Mrs. Zhao and her husband are first generation Chinese immigrants and permanent residents of the United States. (Doc. 48, pp. 351, 378). They operate a Chinese buffet restaurant attached to a mall in Marion, Illinois, where Mrs. Zhao estimates she now works forty hours per week (Id. at p. 351). The buffet is the Zhaos' only source of income (Id. at p. 379). During Mrs. Zhao's pregnancy with Steven, the business was doing well enough for Mrs. Zhao to hire someone to help her work at the buffet, but, because the adjacent mall has closed down, business has declined (Id. at pp. 379, 389).
The Zhaos do not speak or understand English (Id. at pp. 390, 401; Doc. 51, p. 434). Mrs. Zhao required a translator to accompany her to all obstetrical visits and to the hospital (Doc. 51, p. 438, 520). The Zhao family speaks Chinese at home, as do the children (Doc. 48, p. 351).
Steven briefly attended the trial in this case and was observed to be a typically rambunctious, taciturn four-year-old. Steven's right arm is obviously damaged. Steven can speak English (Ex. 8, pp. 20, 25). He currently attends an early childhood/pre-kindergarten program where he receives special education services because his right arm injury limits his ability to otherwise benefit from or participate in the classroom. (Doc. 51, p. 482). Additional impacts and specifics of Steven's disability are discussed below.
When he was born and his head delivered—after two attempts to vacuum extract his head – Steven's shoulders remained stuck inside his mother for nine minutes (Doc. 47, pp. 130, 152). Steven weighed eleven pounds, six ounces when he was born on June 15, 2014 (Doc. 46, p. 95).
Mrs. Zhao's first prenatal visit with Dr. Cruz occurred December 13, 2013. At that visit, Mrs. Zhao communicated a number of things to Dr. Cruz: she was not happy with this unplanned pregnancy; she wanted to be sterilized; and, in the event she needed a Cesarean section for delivery of the baby, she wanted a tubal ligation performed at the time of the Cesarean section (Doc. 46, p. 79-80). Her desire for tubal ligation following a Cesarean section is charted on the first page of Dr. Cruz's medical records (Ex. 10, p. 1).
Dr. Cruz classified Mrs. Zhao's pregnancy as "high risk" because at the time thirty-five years of age was accepted as "advanced" maternal age (Doc. 51, pp. 523-24).
As a matter of course, Dr. Cruz and his staff asked patients about previous pregnancies in order to gather information pertinent to management of the current pregnancy (Doc. 46, p. 44). In Mrs. Zhao's case, Dr. Cruz's nurse practitioner noted the date and state of Mrs. Zhao's three previous live births; that the births were vaginal; and the weight of the babies (Ex. 10, p. 4). The birth weight of Mrs. Zhao's second son, Alex, was noted to be 11.12 pounds (Id. ).3
Dr. Cruz did not ask Mrs. Zhao—nor did he know if anyone at his office had asked—details or anomalies of her previous pregnancies, labors, deliveries, or postpartum management (Doc. 46, pp. 48-49). For example, Dr. Cruz did not know or find out at how many weeks Mrs. Zhao delivered her previous babies (Id. at p. 49). He did not know or find out in which hospitals or in which cities Mrs. Zhao had previously delivered, nor did he seek records from those facilities (Id. at p. 64). He did not know or investigate the length of the second stage of labor of any of Mrs. Zhao's previous deliveries—even the delivery of eleven-pound, twelve-ounce Alex (Id. at pp. 55-56). The section of Dr. Cruz's prenatal record for "comments/complications" of Mrs. Zhao's previous births was blank—Dr. Cruz assumed that meant there had been no complications (Id. at p. 49). Dr. Cruz also assumed that the blank sections for gestational age, length of labor, and anesthesia meant Mrs. Zhao had not known when asked; he again assumed she had been asked (Id. at pp. 50-52). There was no satisfactory explanation for why he assumed that blank spaces on one section of the form denoted "there were none" (complications) and blank spaces on another section of the same form denoted "patient didn't know" (Id. at p. 52).
Additional information regarding Mrs. Zhao's previous pregnancies, labors, deliveries, and postpartum healing would admittedly have been important with respect to managing Mrs. Zhao's pregnancy and delivery of Steven (Id. at p. 53). For example, a previous lengthy labor would indicate the previous labor had been extended or difficult (Id. at pp. 53-54). It would have alerted Dr. Cruz to the probability of another extended or difficult labor, particularly a prolonged second stage of labor (Id. at p. 56). The main cause of a prolonged second stage of labor is cephalopelvic disproportion—discrepancy between the size of the baby's head and the maternal pelvis (Id. ).
Despite minimal knowledge of her labors and deliveries, Dr. Cruz was confident in Mrs. Zhao's "proven pelvis" because she had previously given birth to an eleven-plus-pound baby (Id. at p. 57). Dr. Cruz admitted, however, that Mrs. Zhao's delivery of a large baby with no complications in the past did not preclude the possibility that the labor and delivery had been lengthy or difficult (Id. at p. 62). Even with Mrs. Zhao's "proven pelvis," there was no way to determine whether she experienced cephalopelvic disproportion during her previous deliveries, because there is no such history recorded in Dr. Cruz's records, and her past records were not obtained (Id. at p. 63). In other words, there very well might have been cephalopelvic disproportion during Alex's delivery, despite the fact he was delivered without permanent injury (Id. at p. 62).
A birthweight of eleven pounds, twelve ounces is "macrosomic." Dr. Cruz identified "macrosomia" as a birthweight over 4,000 grams—eight pounds, ten ounces (Id. at pp. 58-59).4 Dr. Cruz knew Mrs. Zhao had a previous macrosomic birth (Id. at p. 67). He knew the information of a previous macrosomic birth was significant (Id. ). And Dr. Cruz admitted that the previous macrosomic birth was material to management of Mrs. Zhao's pregnancy, labor, and delivery of Steven because a previous macrosomic baby increases the risk of a...
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