Traumatic Brain Injury Case against Federal Government Results in $33.8M Verdict

A Miami family was awarded $33.8 million in a 2013 medical malpractice lawsuit against a federally funded health clinic, after an obstetrician was found negligent during delivery of their baby. The clinic serves many of Miami’s low-income and uninsured residents.

A young mother was in the final stage of labor and ready to deliver her baby at a Miami health center when the obstetrician arrived. The delivery was not meant to be high risk, but over a 90-minute period, a series of errors resulted in the newborn suffering severe brain damage, according to the lawsuit.

Court records state that the baby had a “category 3” fetal heart rate, which a medical expert testified indicates the baby is starved of blood and oxygen and at risk for brain damage or death. Yet, the obstetrician failed to offer and perform a C-section, ordered nurses to restart the drug Pitocin which strengthens contractions, and even tried three times to deliver the baby using a vacuum device called a “Kiwi.” The complaint also alleged that the obstetrician walked away from the patient’s room for long periods, once for an eight-minute phone call from his stockbroker. By the time the baby was delivered, he was blue in the face and his limbs were limp. The infant was revived, but by then had severe brain damage due to lack of oxygen, according to the lawsuit.

The baby boy went home nearly two months after he was born, but has been hospitalized about 30 times since then. Doctors have performed a tracheotomy to help the baby breathe and inserted a feeding tube into his stomach. He cannot speak or sit up without falling over. He has scoliosis and cerebral palsy, and he takes dozens of medications every day. He will require a lifetime of round-the-clock care.

The plaintiff’s attorney said the case was helped by a nurse who testified that the obstetrician lied when he wrote a note that read “refused c/s” on her patient record, a reference to a C-section. The nurse testified that she had not left the room during the entire episode and that the doctor never offered the patient a C-section. Medical experts said that a C-section could have prevented the baby’s brain damage.

Fortunately, the judge did not limit the award to Florida’s $250,000 statutory cap. However, the U.S. Government has not accepted responsibility and has threatened an appeal, according to the plaintiff’s attorney.

The obstetrician, who was immune from personally liable in the judgment, joined the medical facility in 2012. At that time, he signed a contract that paid him $350 for every delivery. Records indicate that he delivered approximately 2,000 babies prior to this tragic incident in December 2013. It was later discovered that this was not the first such medical malpractice claim involving the doctor. Three other 2013 incidents resulted in lawsuits. Two cases involved babies who are permanently brain damaged, and a third who is disabled for life, according to lawsuits filed by those families.

Despite numerous malpractice suits against him, there have been no disciplinary action taken and the obstetrician still holds his Florida medical license. He now works in private practice and has privileges at two different facilities.

How does this happen?

Most people are not aware when a doctor has a history of medical malpractice because monetary settlements with injured patients are often confidential. In other cases such as this one, the doctor isn’t the named defendant in the lawsuit. Furthermore, state agencies typically don’t investigate a doctor for malpractice unless a patient files a formal complaint. At that point, records only become public if a health department investigatory panel issues a probable-cause finding, opening the door to prosecution. In this case that would mean that either the state health department is unaware of the prior three incidents, the agency has investigated and found no probable cause to prosecute the obstetrician, or there is an ongoing investigation — nearly four years later.

Without any paper trail and limited penalties for bad doctoring, patients are left in the dark and as a result there will be more innocent victims of such negligence. To add insult to injury, proponents of tort reform are now seizing the opportunity with a GOP-controlled Congress.

Despite given a pro-citizen name, the “Protecting Access to Care Act” (HR1215) is anything but pro-citizen. It is simply the latest measure intended to deny the rights of innocent victims, making it even harder to seek justice. One key component of HR1215 is to bypass state laws and make healthcare claims federal cases; imposing a $250,000 cap on non-economic damages. That means no matter how much your life has been affected due to medical negligence, it isn’t worth more than $250,000.

Champions of limiting plaintiffs’ access to the courts usually talk about “frivolous” lawsuits. The real problem with medical malpractice is medical malpractice, not so-called “frivolous” claims. There is no reason, none, to immunize doctors from the damage they cause due to negligence. Taking away the rights of patients injured by negligent doctors will do nothing to improve health care. The only thing HR 1215 will do is promote more unsafe medical care, erode consumers’ rights, and reward wrongdoers. Any attempt to take power away from a jury is an attempt to take power from our citizens. It especially causes an adverse effect on the most vulnerable — those who are less able to establish lost wages and other economic losses, such as women, children and low income members of society. When the victim can’t recover from the wrongdoer, the only alternative is to shift the burden to the taxpayers through Medicaid, Medicare, and assistance programs.

The judge in this case did the right thing. If there is an appeal and the Florida Supreme Court sides with the defendant, this young child will become victimized again, this time by tort reform. Let’s hope that in the event there is an appeal that the Appeals Court does the right thing, too.

Mark Bello is the CEO and General Counsel of Lawsuit Financial Corporation, a pro-justice lawsuit funding company.