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Parents blamed misuse of forceps for baby's brain injuries

Amount:

$41,651,966.60

Type:

Decision-Plaintiff

State:

Pennsylvania

Venue:

Federal

Court:

U.S. District Court, Middle District of Pennsylvania, Harrisburg

Injury Type(s):

head-fracture, skull; head-skull, deformity; brain-brain damage (encephalomalacia); brain-hydrocephalus; brain-cerebral palsy; brain-brain abnormalities; brain-internal bleeding; brain-Arnold-Chiari malformation / Chiari malformation; other-seizure; other-hematoma; other-swelling; other-physical therapy; epidermis-contusion; sensory/speech-speech/language, impairment of; arterial/vascular-hemorrhage; surgeries/treatment-decompression surgery; mental/psychological-autism; mental/psychological-cognition, impairment; pulmonary/respiratory-respiratory

Case Type:

Medical Malpractice - OB-GYN, Childbirth, Birth Injury, Brain Injuries, Cerebral Palsy

Case Name:

Christina Late and Nathan Armolt, as parents and natural guardians of D.A., a minor, and in their own right v. United States of America, No. 1:13-cv-00756-SHR

Date:

April 20, 2017

Parties

Plaintiff(s):

D. A. (Male, 15 Hours), 

Nathan Armolt (Male), 

Christina Late (Female, 20 Hours)

Plaintiff Attorney(s):

Shanin Specter; Kline & Specter, P.C.; Philadelphia, PA, for D. A., Nathan Armolt, Christina Late ■ Regan S. Safier; Kline & Specter, P.C.; Philadelphia, PA, for D. A., Nathan Armolt, Christina Late

Plaintiff Expert(s):

Eric Marsh; M.D., Ph.D.; Pediatric Neurology; Philadelphia, PA called by: Shanin Specter, Regan S. Safier ■ John Lally; C.P.A.; Accounting; Pittsburgh, PA called by: Shanin Specter, Regan S. Safier ■ Mona Yudkoff; R.N., M.P.H., C.R.R.N.; Life Care Planning; Bala Cynwyd, PA called by: Shanin Specter, Regan S. Safier ■ Neel Madan; M.D.; Neuroradiology; Boston, MA called by: Shanin Specter, Regan S. Safier ■ Andrew Gerson; M.D.; Fetal Medicine; Wynnewood, PA called by: Shanin Specter, Regan S. Safier ■ Lee Ann Annotti; Ph.D.; Psychology/Counseling; New York, NY called by: Shanin Specter, Regan S. Safier

Defendant(s):

United States of America

Defense Attorney(s):

G. Michael Thiel; U.S. Attorney's Office; Scranton, PA, for United States of America ■ Michael J. Butler; U.S. Attorney's Office; Harrisburg, PA, for United States of America

Defendant Expert(s):

Jane McGowan; Neonatology; Philadelphia, PA called by: G. Michael Thiel, Michael J. Butler ■ Marc Weinstein; Lost Earnings (Economics); Philadelphia, PA called by: G. Michael Thiel, Michael J. Butler ■ Terry Leslie; Vocational Rehabilitation; Lancaster, PA called by: G. Michael Thiel, Michael J. Butler ■ Gordon Sze; Neuroradiology; New Haven, CT called by: G. Michael Thiel, Michael J. Butler ■ Rebecca Chick; Life Care Planning; New Cumberland, PA called by: G. Michael Thiel, Michael J. Butler ■ Zachary Grinspan; Pediatric Neurology; New York, NY called by: G. Michael Thiel, Michael J. Butler ■ Jennifer Cross; Pediatrics; New York, NY called by: G. Michael Thiel, Michael J. Butler

Facts:

On Feb. 21, 2012, plaintiff D.A. was born at a federally supported community health center, in Chambersburg. D.A. had been delivered by obstetrics-gynecologist Thomas Orndorf. On Feb. 21, at 7:28 a.m., plaintiff Christina Late, D.A.'s mother, was positioned for pushing, and Orndorf had presented to her bedside for the first time. The fetal monitoring continued to be reassuring. Late claimed that, at 7:39 a.m., when the fetus was at the plus-one station, without any obstetrical or medical indication to do so, nor any discussion of the risks involved or alternatives to the procedure, Orndorf attempted a mid-forceps delivery. The physician placed the forceps around the fetal head inaccurately and pulled with such force that Late fell off the examination table. Orndorf removed the forceps and then reapplied them and pulled three more times, again pulling Late off the table. The forceps were removed, and D.A. was born. Late asserted that Orndorf applied the forceps when there was no indication to do so; he applied the forceps when the baby was still high in the birth canal; he misapplied the forceps on the right side of D.A.'s face and the back left side of his head; and used too much force and traction on the forceps when delivering D.A. At the time of his birth, D.A. had forceps marks on the right side of his face. The child suffered brain damage and permanent physical and cognitive impairment. Late and the child's father sued the federal government, alleging that Orndorf was negligent in his use of the forceps while delivering D.A. Late's expert in maternal fetal medicine opined that Orndorf improperly placed the forceps, as confirmed by the location of D.A.'s skull fractures, and compounded the error by applying excessive force. The use of excessive force, in combination with improper placement of forceps, increases risk of harm to the baby which in this case led to D.A. suffering disastrous injuries.

Injury:

At 15 hours post-birth, D.A. developed breathing difficulties, dropping blood counts, and scalp swelling. A head CT scan showed multiple skull fractures, brain bleeds, and brain compression. The fractures involved left occipital and left parietal regions with displacement and overlapping of bones. Additionally, there was intraparenchymal hematoma (bleeding in functional brain tissue) involving the left cerebellar hemisphere and bleeding in the subarachnoid cisterns and tentorial region. The child had a large bilateral cephalhematoma (bleeding between the skull and connective tissue) and compression of the fourth ventricle. D.A. was transferred to a neonatal intensive care unit for surgical management and treatment. His head imaging continued to show the effects of his traumatic birth with mass effect in the posterior fossa and bleeding into nearly every layer of the brain. He was further diagnosed with intraventricular hemorrhage, encephalomalacia (a softening or loss of brain tissue), asymmetric dilation of the lateral ventricles, and chronic static encephalopathy. He was eventually discharged and later had an additional reservoir placed and then ultimately a permanent ventricularperitoneal shunt, a device used to relieve pressure on the brain. In the ensuing years, D.A. underwent multiple hospitalizations. Late's expert in pediatric neurology opined that D.A. will be severely impacted with moderate to severe intellectual disability and autistic features. The child requires lifelong supervision with either a professional trained to handle an individual on the severe end of the autistic spectrum, or a residential placement in an appropriate facility. According to the expert, D.A.'s brain will never recover from its injuries, since 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, the expert stated. Late's expert in neuroradiology cited D.A.'s radiographic studies to opine that the imaging demonstrated an extensive birth trauma with multi-compartmental hemorrhage, hemorrhagic and non-hemorrhagic parenchymal contusions, calvarial fractures (skullcap fractures), and a Chiari 1 malformation (in which brain tissue extends into the spinal canal). According to the expert, the child suffers from severe and permanent physical and cognitive neurologic impairment. He has undergone additional brain surgery with a decompression of a Chiari malformation caused by persistent hydrocephalus (an abnormal accumulation of fluid in the brain). He receives physical, occupational and speech therapies weekly. He remains without speech or an ability to communicate; he does not sign and has almost no vocabulary. D.A. is significantly behind in cognitive development, communication, social and emotional development, and adaptive development. Late's expert in psychology testified 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. D.A.'s deficits are pervasive and will impact him for his entire life. He understands language, but is unable to express himself, reason or use language appropriately. According to the expert, D.A. is operating at a 50 percent delay with respect to abstract reasoning, problem solving, and cognitive skills that are very important to functioning in the world. According to Late's life-care planner, D.A. will require future medical surveillance in the nature of neurological testing, shunt replacement, ophthalmological exams, orthopedics, and MRIs. He will require behavioral, educational, language, and other therapies during his school years from age four to 21. D.A. will also require attendant care to aid in his supervision. From age 22 to life (a period estimated to last 54.9 years), D.A. will require placement at a long-term care facility. The expert testified that, 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. His parents sought to recover $32,994,383.50 in future medical costs. They also sought $2,727,381 to $6,717,770 in lost earnings. According to D.A.'s parents, he suffers from autistic features, suffers from severe and uncontrollable outbursts and does not interact with other children. He is prone to aggression and will strike anyone around him, including his parents, 5-year-old sister, and grandmother. He has to be carefully watched for self-injurious behavior, like head banging. He will never be able to live independently, have meaningful speech or comprehension, play a contract sport, or ride an amusement park ride. His parents further testified that D.A. has severe sleep disturbances and often wakes up screaming after only an hour or two of sleep. His parents sought damages for past and future pain and suffering. According to the government's expert in neurology, who examined the child, D.A.'s cognitive ability appears to be within the normal range, and he can be educated in the public school setting and encouraged to have age-appropriate curriculum. The expert found that D.A. understood what was said, followed directions briskly, could produce language and make speech sounds, but his rhythm of language seemed distorted because his cadence was off. D.A.'s fine motor skills were very good, as he could use his thumb and forefinger to make very fine manipulations of the gears on the wheels of a toy, the expert testified. The expert acknowledged that D.A. has portions of his brain that will not regenerate, but stated that the other parts of D.A.'s brain will compensate for the injuries. D.A. will need ongoing therapy in his school-aged years, but he will achieve independence and self-care skill by adolescence, and achieve independence into adulthood, the expert concluded. The government's expert in pediatric development, who examined D.A., testified that he had only minor long-lasting effects from his brain injury, and would be able to graduate from high school, live independently, and have a fairly normal life. According to the expert, D.A. is currently of at least average cognitive ability, as he can understand language and follow directions. D.A. will continue to improve in his ability to learn, his expressive language and motor skills will improve, and he will become fully independent in all self-care skills by adolescence.

Result:

Following a bench trial, the court found that Orndorf was negligent and his negligence was a factual cause of D.A.'s injuries. D.A. was determined to receive $41,651,966.60.

D. A.: $103,967 Personal Injury: Past Medical Cost; $32,994,384 Personal Injury: Future Medical Cost; $2,733,551 Personal Injury: Future Lost Earnings Capability; $5,000,000 Personal Injury: past and future pain and suffering; $820,065 Personal Injury: loss of fringe benefits

Trial Information:

Judge:

Sylvia H. Rambo

Trial Length:

6  days

Editor's Comment:

This report is based on information that was provided by plaintiffs' and defense counsel.