CHICAGO – Chief U.S. District Judge Nancy Rosenstengel properly ordered the U.S. to pay a mother more than $8 million for a delivery that damaged and disfigured her son’s arm, Seventh Circuit appellate judges ruled on June 29.
They expressed astonishment at the position of the U.S., calling it unrealistic, unsupported, disappointing, and not persuasive.
Yong Juan Zhao of Marion sued the U.S. in 2017, on behalf of son Steven.
His delivery ripped out and stretched nerve roots from his spine.
Zhao’s lawyer Tom Keefe of Swansea claimed obstetrician Paul Cruz, working at a federally supported clinic in Carbondale, breached the standard of care.
Keefe claimed Cruz underestimated delivery weight by three pounds six ounces, and claimed Cruz failed to take into account a previous birth of nearly 12 pounds.
At delivery, he claimed, Cruz used suction to bring out the baby’s head but couldn’t bring forth the shoulders.
He claimed a doctor with smaller hands arrived and helped bring Steven out. He was blue, he wasn’t breathing, and his heart wasn’t beating.
At bench trial last year, assistant U.S. attorney Adam Hanna proposed to limit damages to past medical expenses.
Rosenstengel rejected the proposal and granted Zhao $8,297,967.77.
She found Cruz failed to order an ultrasound examination, which would have confirmed or debunked his weight estimate.
She wrote that if he had ordered one at a prenatal visit or when Zhao presented in labor, he could have avoided everything that happened.
She found that prior to delivery, he failed to recommend Caesarean section or inform Zhao of the risks in vaginal birth.
“Mrs. Zhao testified that different times throughout her pregnancy, she wanted a Caesarian section and expressed as much to Dr. Cruz,” Rosenstengel wrote.
She found he failed again to recommend Caesarean section at delivery.
She found he used a vacuum extractor when Steven’s size in proportion to his mother’s pelvis indicated against it.
“It was certainly foreseeable that this large baby’s shoulders would get jammed inside his mother’s pelvis when Dr. Cruz forced the baby into a too tight space by using a vacuum to suck the baby’s head through,” she wrote.
She found he should have used a procedure to make more room so he could grasp the posterior arm, that he more probably than not pulled Steven’s head with too much force and that he pulled on it four times in nine minutes.
She wrote that she observed Steven in court and his right arm and hand were smaller than his left.
She quoted testimony that his right arm and hand would differ from the left in muscle size and in the bones themselves.
“Every time he is unable to join in a basketball game with his friends; every time he has to enlist the help of his left hand to reach up and brush his hair, or to eat, or to dress; every time he notices a stranger or new acquaintance do a double take when they see his right arm, he will suffer some amount of emotional distress,” she wrote.
She awarded $70,000 a year in lost earnings, the difference between a $100,000 job and a $30,000 job.
She multiplied that by 37.9 years for a total of $2,653,000.
She awarded $2 million for loss of a normal life, $2 million for pain, suffering and emotional distress, and $1,500,000 for disfigurement.
She awarded $64,967.77 in past medical expenses and $80,000 in future expenses.
For the appeal, the Justice Department in Washington assigned Karen Schoen.
Hanna stayed on the case but Schoen filed the brief and presented oral argument.
She challenged the award for lost earnings as speculative.
She challenged the awards for loss of normal life, pain, and disfigurement as arbitrary and excessive.
Circuit Judge David Hamilton delivered the opinion 24 days after argument, and his tone showed why the judges wrapped it up more quickly than usual.
Hamilton found the argument that Steven should receive no compensation beyond medical expenses “disappointing and not persuasive.”
“To our astonishment, the government argued before the district court that Steven was not disfigured, would not need further medical care, and suffered no pain or emotional distress from his injury,” he wrote.
He wrote that the government claimed Steven wouldn’t experience loss of normal life because his injury occurred at birth and he would know no alternative.
He found that position “unrealistic and entirely unsupported, further increasing our confidence that the district court did not err.”
He wrote that Steven became distressed when he saw other children engaging in physical activities he couldn’t join.
He wrote that Steven told his mother he wants an arm like his brother’s.
On earnings, the judges found Rosenstengel didn’t abuse her discretion in choosing the figures she did.
Hamilton wrote that the difficulty of deciding compensation for a victim five years old didn’t justify an award of zero.
Circuit judges Frank Easterbrook and Michael Scudder concurred.