United States District Court, S.D. Florida
Marla Dixon and Earl Reese-Thornton, Sr., individually and as parents and natural guardians of Earl Reese-Thornton, Jr., Plaintiffs
United States of America, Defendant.
AMENDED VERDICT AND ORDER FOLLOWING NON-JURY
N. SCOLA, JR. UNITED STATES DISTRICT JUDGE
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.
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.
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.
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.
Summary of the Testimony
Dixon (by videotaped deposition taken May 25, 2016)
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.
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
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 the baby 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.
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.
Richard S. Boyer (by deposition transcript)
the parties' agreement, the Court reviewed the deposition
testimony of Dr. Boyer taken on September 21, 2016.
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.
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
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.
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 injury
occurred 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
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.
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.
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.
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
sutures, which are quite pliable. Sutures are the joints
between the calvarial plates, and that is what allows a baby
to get through the birth canal without shattering its skull.
A baby's head is much more pliable than an older child or
adult's head, and they accommodate for swelling that way.
That classic edema curve typically does not occur; it is
unusual to see it in a neonate. Even a few months later that
classic curve may occur, but not in a neonate.
there might be some cases in which the time that it takes for
the ventricles to reopen would provide some indication as to
the timing of the hypoxic ischemic injury.
Boyer agrees with Dr. Sze that the imaging demonstrates
abnormalities of hypoxic ischemic injury and they both saw
the same injury. Dr. Boyer also agrees with Dr. Sze that the
hypoxic ischemic event occurred at or near the time of labor
and delivery. However, Dr. Boyer disagrees with Dr. Sze's
opinion that the ventricles are slightly discrepant.
Boyer states that Dr. Sze's opinion is misleading because
it is based upon two different events having occurred. Dr.
Boyer believes there were not two events but a continuum or
progression of things going from bad to worse and that caused
these kinds of injuries to the brain.
is a timeline for the manifestations of the injury and Dr.
Boyer gave some parameters for that timeline. Looking at the
injury to the deep grey matter structures, what Dr. Sze calls
the profound pattern, if that were the only injury we know it
takes a minimum of 10 to 12 minutes in fetal lambs and
primates and maybe a little longer, perhaps up to 15 minutes,
in humans to begin seeing that pattern of injury. The deep
grey matter manifestations would take humans approximately 15
minutes of oxygen deprivation to begin to manifest.
those animals, if you have completely cut off the blood
supply to the brain and don't restore it for 30 minutes
or so the animal cannot be resuscitated and will not survive.
That is the shortest window. So we know there was deprivation
of blood flow to the brain for at least 10 to 15 minutes.
know from clinical experience that if there is a less
complete interruption of blood flow, that different parts of
the brain are damaged and that is what Dr. Sze called partial
prolonged and, because it's a cumulative process of
energy deletion, it's not a complete interruption of
blood flow, it will take longer. Based on Dr. Boyer's
experience and the literature, he opines that it takes a
minimum of 30 to 60 minutes for that to occur. So, it is
possible that part of the brain injury could have occurred
over a period of an hour or more, possibly even a few hours,
but it doesn't require a lot of hours for that to occur.
Everything we see here could have happened in the last hour
leading up to birth and we always have to include the
resuscitation until we restore circulation to the brain and
oxygen and glucose delivery.
experts who look at fetal heart tracings and so forth can
tell us when this baby was in trouble. As long as it is in
the imaging window, all of the injury to this child likely
occurred within 60, or at the most 90, minutes before he was
born or until he was adequately resuscitated.
MRI were used, you would see the evidence of the hypoxic
ischemic injury within minutes to an hour but we don't
have that luxury in this case. With an ultrasound, we can
start to see those changes within 12 to 24 hours depending on
how extensive the injury is. In this case, a lot of the brain
was damaged and that's why we see the deep grey matter
manifestations on the second ultrasound taken approximately
24 hours after the birth. The first ultrasound, taken five
hours after the birth, was normal. Dr. Boyer opines that the
event which caused the damage occurred sometime between 7 to
19 hours before the birth.
possible, but unlikely, that the manifestation on the deep
grey matter is a result of two different insults. The
following are causes of oxygen deprivation resulting in the
deep grey matter manifestation: placental abruption, a
complete knot in the cord, maternal cardiac arrest and
amniotic fluid embolization. But none of those are cited in
the record here. So, the most plausible cause here is that it
was the process of laboring and the contraction of the uterus
and the bradycardia that the baby was suffering in response
to that. The baby's heart was perfusing the baby's
brain and so every time the heart slows, there was less
perfusion and if the oxygen level was dropping at the same
time, then perfusion that was getting there was less helpful
to the brain. Every cell of the brain is a little factory
that needs oxygen and glucose to survive and, like a fighter
in the ring, every time you get knocked down, they get up
more slowly until they can't.
best explanation of what happened was progressive energy
depletion in the parts of the brain that are most
energy-dependent and as that progressed, those parts of the
brain were recruited and suffered and eventually died. Dr.
Boyer's specialty is not the specific causes at issue; he
simply looked at the result of what happened.
correlating the clinical observations, Dr. Boyer was able to
be more precise in his opinion as to the timing. The first
ultrasound was normal after 5 hours of age. By 12 or at most
24 hours, it was going to be abnormal after insult. So, the
injury would have occurred 7 to 19 hours before the birth,
based only on the ultrasound results. With clinical
observations from the time of birth, the baby had low Apgar
scores, acidosis, cyanotic, depressed, floppy and apneic.
That tells Dr. Boyer the child was in acute distress at the
time he was born which was when he was most at risk. The
minutes immediately after the birth until the child was
resuscitated are the most likely causes of this child's
brain injury. The child was dying at the time of birth and it
takes time to reverse the process: restore circulation to get
the heart pumping with adequate frequency to push the blood
and oxygenate the brain. Even at 10 minutes the Apgar on the
child was still a 6. Dr. Boyer does not have a standard of
care opinion on how his resuscitation was managed.
Boyer concluded the child's cortex and subcortical white
matter is virtually gone and permanent meaning the child will
not have higher functions, i.e. speech, language, motor
control and activity, vision, hearing, memory, judgment,
intelligence, personality, etc. When there is a reduction in
perfusion to the brain, the brain redirects blood flow to the
deep grey matter structures, the brainstem, cerebellum
because those are critical for life support functions but it
does so at the expense of the more peripheral parts of the
are two possibilities for how this injury occurred: the first
is that this all happened very acutely and there was
virtually no blood flow, which damaged the deep parts of the
brain and then spread peripherally and damaged some of the
outside of the brain. However, the imaging does not support
that quite as much because the part of the brain that is more
damaged is the more peripheral part with some preservation of
the deep parts, which suggests it happened differently. If
there was some blood flow getting through, the brain would
have redirected that centrally to preserve those structures.
It looks like the child was able to do that at the expense of
the outer part of the brain, the cortex, because the cortex
is what is most damaged here.
Miami Children's Hospital report lists a subgaleal
hemorrhage resolved December 3, 2013. The ganglia is a tough
fibrous band that is underneath the scalp and it is loosely
applied in babies and quite vascular and it is not uncommon
to bleed under the galea. So there is some hemorrhage that is
outside the skull under the scalp.
brain MRI report on December 6, 2013 shows moderate subgaleal
fluid, scalp edema and no cephalohematoma. This tells us
there was a mechanical stress to the baby's head in
getting born. It's more common if you apply vacuum
extraction and even more common if you use forceps.
Boyer's readings of the film are consistent with other
experts' opinions that the assault began at about 14:00
on December 2, 2013 and continued until 5 minutes after
delivery. The child was born at 15:21 so there is a window of
approximately 90 minutes and Dr. Boyer's findings are
consistent with that.
Gordon Sze (by deposition transcript)
the parties' agreement, the Court reviewed the deposition
testimony of Dr. Sze taken on September 23, 2016.
currently works at Yale University and is board-certified in
radiology and has a certificate of added qualification in
neuroradiology. Dr. Sze earns $200 - $250, 000 per year doing
medicolegal work. Dr. Sze was retained by the United States
for his expertise in neuroradiology. Dr. Sze created a report
dated August 17, 2016 after reviewing the medical records,
ultrasounds and films of the child, as well as Marla
Dixon's records and films. Dr. Sze also reviewed the
report of Dr. Boyer.
Sze's ultimate opinion is that within a reasonable degree
of medical certainty, the imaging examinations of the child
demonstrate abnormalities of hypoxic ischemic injury of the
mixed pattern with elements of both the acute profound
pattern and the partial prolonged pattern. Hypoxia occurs
when there is not enough oxygen and ischemia occurs when
there is not enough blood flow. Hypoxic ischemic injury
basically boils down to the brain not getting enough
oxygenated blood. That could be due either to the child not
getting enough blood flow or to the blood flowing fine but
not having enough oxygen in it. From a radiological point of
view, it cannot be determined from looking at films whether
an injury resulted from hypoxia or ischemia.
prolonged type injury is where the fetal brain gets some
oxygenated blood but not quite enough. This usually takes
half an hour to an hour or more to occur. With this type of
injury the peripheral portions of the brain tend to be
affected, especially the watershed regions.
profound type injury is where the baby has a catastrophic
lack of oxygenated blood reaching the brain and, because
it's catastrophic, it really takes a very short amount of
time to cause the damage, and the length of time that this
occurs cannot be very prolonged or the fetus will die. It is
said that 15 to 20 minutes is a good time period but the
outer margin may be 10 to 30 minutes. This type of injury
tends to affect the central portions of the brain, especially
the basal ganglia and thalami.
possible for the fetus or infant to have a partial prolonged
type injury and then have a catastrophic problem at the end.
There are multiple variations of these types of injuries. One
variation could be if you don't have quite enough oxygen
going for a long period of time, you will eventually get all
the areas of the brain involved, including the central
portions which are generally spared as the brain attempts to
shunt blood towards the center. However, if it goes long
enough, you could certainly get the entire brain involved. A
second variation could be to sustain a partial prolonged
injury earlier on and then have the situation resolve to some
extent and then have a catastrophe at the end. There are
does not know what happened in this child's case. Dr. Sze
opines that the abnormalities disclosed on the imaging
examinations are generally consistent with a hypoxic ischemic
event having occurred at or near the time of labor and
delivery, although some evidence is slightly discrepant.
upon the initial ultrasound and going back 24 to 48 hours,
that equates to 19 to 43 hours prior to birth, approximately.
Since the first ultrasound showed a normal brain, and it
often takes 24 hours or more to see something on the
ultrasound, then you go back 24 hours from December 2, 2013
and end up on the evening of December 1, 2013. Ultrasound is
not a good tool for looking for hypoxic ischemic injury.
second ultrasound taken approximately 24 hours after birth
shows an abnormal brain so this is consistent with an injury
occurring near 15:00 the day before. Dr. Sze agrees that the
window when the injury occurred was from the evening of
November 30 through the delivery at 15:21 on December 2,
2013. Dr. Sze did not do any type of clinical correlation to
determine when the injury occurred within that window.
However, Dr. Sze agrees with Dr. Atogho that if he had
performed a C-section on Marla Dixon at or before 14:15 on
December 2, 2013, more likely than not Earl Jr.'s brain
injury could have been prevented.
reviewed the ultrasound taken on December 5, 2013. The only
thing useful in that ultrasound is looking at the mass
effect. The ventricles are larger than in the December 3,
2013 ultrasound. Since mass effect is maximal at three days
and as the ultrasound showed maximal mass effect as of
December 3, 2013, if you count back three days, it brings you
to November 30, 2013. A normal baby's ventricles expand
in a day or two, roughly. In this case, Dr. Sze cannot say if
the ventricles were small because of mass effect or normal
also reviewed the MRI scan of December 6, 2013. The MRI shows
restricted diffusion which occurs in cases of, among other
things, hypoxic ischemic injury. The restricted diffusion
here is in the entire brain above the tentorium. This MRI is
consistent with his opinion that the hypoxic injury window
was from November 30, 2013 through delivery on December 2,
2013 at 15:21. The MRI shows significant, permanent,
irreversible brain damage. Most of the supratentorial brain
is damaged. A child with this type of damage would experience
cerebral palsy that is significant and developmental delay
that is significant, among other things. Dr. Sze also
reviewed CT's from November 2015 and a December 2016 MRI.
Basically, the majority of the brain is destroyed except for
the internal part of the brain that keeps people breathing
and allows them to swallow.
neonate, increased mass effect and swelling can be seen after
approximately one day following a hypoxic ischemic injury. If
the hypoxic ischemic injury had occurred at labor and
delivery, one would expect the greatest mass effect as shown
by compression of the ventricle to be seen on the December 5,
2013 ultrasound or the December 6, 2013 MRI. Since this is
not the case, one could hypothesize that the maximum edema is
present on the ultrasound of December 3, 2013. This would
correlate with a hypoxic ischemic event on November 30, 2013
or December 1, 2013. However, this is the only evidence that
suggests a hypoxic ischemic injury that definitely predates
labor and delivery while all the other evidence supports an
event that included labor and delivery. Furthermore, some of
the evidence excludes an event significantly prior to labor
and delivery - things like the ultrasound being negative
initially. If labor began on the morning of December 2, 2013,
that is the more accurate window of the hypoxic injury (from
time of labor through delivery).
are cephalohematomas outside the brain which are consistent
with a Kiwi suction device. But that injury, or the blood
loss associated with it, would not have caused brain injury.
agrees with Dr. Boyer as far as the images and doesn't
really disagree as far as other conclusions. If experts for
the plaintiff opine that the hypoxic injury occurred between
14:00 and 15:21 on the day of birth, that time period would
fall within Dr. Sze's window. If the lack of blood
started at 14:00 and continued through delivery and even
several minutes after delivery, that would be consistent with
Dr. Sze's opinion on the window of when the injury
occurred. Dr. Sze believes the injuries to the child were
caused from a combination of a partial prolonged and acute
Atogho is from Cameroon and came to Washington in 1995. He
graduated from Howard University and Howard University
Medical School. Dr. Atogho now works for Metro-Miami
Obstetrics and Gynecology (“OB/GYN”). He is board
certified in obstetrics and gynecology. After his residency,
he came to Miami and worked for Tenet Health. After a couple
of years, Tenet decided to close its facilities. Dr. Shiner
recommended he work for Jessie Trice, a facility that serves
underserved and undocumented populations. He signed his first
contract with Jessie Trice in 2012, which called for him to
deliver babies. Currently, he is an associate professor at
Florida International University, Ross University and the
American University of the Caribbean.
Trice had three facilities but only two were very productive.
Dr. Atogho had no responsibility to see patients at Jessie
Trice's clinic; patients at the clinic were attended to
by mid-wives and nursing assistants. His responsibility for
patients began when they were ready to deliver and went to
the hospital. At that time, Dr. Atogho would be notified.
Every time a patient was brought to or came to the hospital,
Dr. Atogho would be notified and would go to the hospital.
Some days, he would deliver 3 or 4 babies and some days none.
Prior to Marla Dixon's delivery, he had delivered
approximately 2, 000 babies. Dr. Atogho is familiar with the
standards of the American College of Obstetrics and
Atogho worked at his office two days per week from 9:00 a.m.
to 5:00 p.m. seeing patients. His office was 10 minutes away
from North Shore. His home was in Miami Lakes and was 15 to
20 minutes away from North Shore. Dr. Atogho had privileges
at North Shore beginning in 2008 and was delivering his own
patients there. When Dr. Atogho began working at North Shore,
he received and reviewed the North Shore policies and
procedures. He no longer delivers babies at North Shore; now,
he delivers at Jackson North and Memorial in Miramar.
Atogho was the on-call physician at Jessie Trice for Marla
Dixon on December 2, 2013. At 2:45 he began treating Dixon.
He does not recall seeing her on previous occasions. Dr.
Atogho is aware Dixon signed a consent form for possible
04:07, Dr. Atogho did a telephone order for Pitocin which
increases contractions. Uterine contractions can restrict the
flow of blood to the fetus. Dr. Atogho ordered a low dosage
that was to be administered if Dixon's contractions
slowed down. The order required nurse Yolande Ashman McCray
to stop Pitocin if there was evidence of fetal distress. At
13:33 nurse McCray stopped Pitocin due to deceleration of the
heartbeat. The fetal heart strip indicated fetal distress.
first time Dr. Atogho was at Dixon's bedside was sometime
after noon on December 2, 2013, but before 13:49. There was
another patient about whom Dr. Atogho was called, and he
usually sees all of his patients when he comes to the
hospital. However, during his deposition in April 2016, Dr.
Atogho said he had no recollection of being at Dixon's
bedside before 13:49. Today, he has a better recollection of
when he arrived at Dixon's bedside because he reviewed
Sara Fuentes's records, which indicated that he was
called to the hospital to see Fuentes at 12:10. Since he was
in the hospital to see Fuentes, his normal practice would be
to see all of his patients when he arrived. Therefore, he
believes that he must have seen Dixon.
Atogho received a call at 13:33 to come to Dixon's room.
If he was already in the hospital, he could have arrived in
the room well before 13:49. Dr. Atogho ordered restarting of
Pitocin. According to the chart, Pitocin was restarted at
13:50. It is unlikely that within one minute of his arrival
Pitocin would have been restarted, which is why Dr. Atogho
believes he was at Dixon's bedside before 13:49.
arrival at Dixon's bedside, Dr. Atogho was the captain of
the ship. He was at Dixon's bedside at 13:49. The mother
was complete and ready to be delivered at 13:33. Dr. Atogho
claims that he probably advised Dixon before 13:49 that she
needed to have C-section. However, in his deposition he
testified that he was at Dixon's bedside at 13:49 and
advised her to have a C-section. He further testified that he
had no recollection of having that conversation earlier, and
that there would have been no reason to have that
child had a category 3 fetal heart rate from 13:25 to 13:49.
A category 3 fetal heart rate means the heart rate has poor
variability and deceleration. A category 3 fetal heart rate
is abnormal, indicates fetal distress, indicates that the
baby is not getting enough blood and oxygen, and places the
baby at risk for brain damage or death. The cause of the
fetal distress could have been the Pitocin, dehydration or
the fact that the baby was taking too long to be delivered.
Atogho did not document the fact that the baby had a category
3 heart rate at 13:49. From 13:49 to 15:21 he did not
document that the baby had any complications, but he does not
document every action he takes during a delivery. He did not
advise nurse McCray that the baby was in distress, nor did he
tell her Dixon had refused a C-section. From 13:49 to 15:20
he was also following Fuentes's delivery. He never called
for backup to care for Fuentes in spite of the fact that
Dixon's fetus exhibited a category 3 heart rate.
determining the fetal heart rate was category 3 at 13:49 and
prior to using the Kiwi for the first time at 14:00, Dr.
Atogho administered Pitocin. It is not uncommon that when the
physician comes in, the Pitocin is restarted by the nurse
without the doctor saying anything. However, it is usually
restarted at half the rate at which it was stopped. Dr.
Atogho does not recall at what rate Pitocin was restarted in
this case. It is not uncommon to start and stop the Pitocin
thereafter but Dr. Atogho can't say if it was stopped and
started in this case.
Atogho claims he told Dixon sometime between 13:33 and 14:00
that she needed to have a C-section or her baby would suffer
brain damage or die. He does not recall everything that was
said but the gist of it was that she did not want a
C-section, she wanted a vaginal delivery. Dr. Atogho
acknowledged that it is possible he did not ask Dixon why she
did not want a C-section. Dr. Atogho claims Dixon refused the
C-section on multiple occasions between 13:49 and 15:21. He
did not ask any other staff members to explain the need for a
C-section to her.
a huge deal when a mother refuses a C-section when the baby
has a category 3 heart rate. It's important to find out
the reason why the mother is refusing but more important from
the mother's perspective, not his. Dr. Atogho is familiar
with the publications of ACOG including practice bulletins
and committee opinions. According to ACOG 664, when a
pregnant patient refuses a recommended medical treatment, the
physician should carefully document the refusal in a medical
record. Dr. Atogho acknowledged that it is important for the
physician to document a mother's refusal of a C-section,
but in this case it was not documented because he was too
busy providing care to Dixon. The documentation can be done
at another time.
only place in the entire medical chart setting forth
Dixon's refusal of a C-section is one note in the
progress notes, which states, “Declined c/s.”
This note was created maybe one to two hours after the birth.
There is no note concerning Dr. Atogho offering Dixon a
C-section. In hindsight, Dr. Atogho admits that he should
have written two to three pages about his conversation with
Dixon and her boyfriend about the C-section. Dr. Atogho
admits that he probably didn't put enough information or
that he needed more “beef” to the statement in
the medical chart that Dixon declined the C-section.
refusal to have a C-section could have adversely affected the
child's health. The North Shore Chain of Command Policy
requires the attending physician to consult with the nurse in
charge concerning any issue which could adversely affect a
patient's health. According to Dr. Atogho, McCray was
there at all times and would have heard Dixon's refusal
to have a C-section. The North Shore policy requires an
attending physician to notify the department director and
chief nursing officer concerning any issue that could
adversely affect a patient's health. Dr. Atogho did not
notify either of those individuals and admits this failure
may have violated the policy of North Shore.
Atogho did not order any type of preparations for a C-section
in the event Dixon changed her mind, but that is not usually
what is done.
13:27 the heart rate was tachycardic - above 160. A common
side effect of Pitocin is a category 2 or 3 heart tracing.
According to ACOG, Pitocin should be reduced or stopped if
there is a category 2 or 3 tracing. Dr. Atogho does not
believe he violated this recommendation. When he came into
the room, the nurse had stopped the Pitocin, had started
oxygen, had given IV fluids and had moved the patient around,
all of which were appropriate. But, once the mother refused a
C-section, the baby had to be delivered. Therefore, the only
alternative was to give the uterus a little help to expel the
label for Pitocin states “discontinue the infusion of
Pitocin immediately in the event of … fetal
distress.” Dr. Atogho agrees that a category 3 heart
rate indicates fetal distress. However, another part of the
label allows doctors to use Pitocin in their discretion after
weighing the potential benefits against the possible harm.
Atogho does not recall stopping the Pitocin but it is
possible it was stopped at some point. Usually it is turned
on and off several times during labor. There is no
documentation that Pitocin was stopped after 15:00. Dixon was
in an emergent condition and needed a C-section from 13:49 to
15:21. Dr. Atogho disputes the documentation that he used the
Kiwi from 14:00 to 14:05 because he does not usually use the
Kiwi for that long. The Kiwi can be used when the baby is at
zero or plus 1 stations. He has previously testified in a
deposition in another case that the Kiwi can only be used at
plus 2 station, at least. Once the Kiwi was unsuccessful
three times, a C-section should have been conducted. But it
was not done in this case because the patient refused the
agrees the baby was in category 3 fetal heart condition from
14:00 to 15:21. Between 14:05 and 14:45 Dixon had oxygen and
IV fluids going. From 13:49 to the delivery, Dr. Atogho never
documented that the baby was in any sort of trouble. On that
day, Dr. Atogho knew that there was some probability, but he
can't say if it was high or low, that the baby would have
a problem. However, in his deposition he testified that there
was a high probability there would be a problem.
Atogho went back and forth between Fuentes's room and
Dixon's room. Dr. Atogho was on his phone with his
stockbroker for 8 minutes. He could have used that time to
further document his conversation with Dixon concerning her
refusal to have a C-section. Dr. Atogho does not believe his
phone call to his financial advisor from 14:25 to 14:32 would
have interfered with his ability to treat either Fuentes or
Fuentes baby was delivered at 15:08 and the placenta was
delivered at 15:10. Dr. Atogho left Dixon to attend to
Fuentes. It typically takes 10 to 15 minutes after the
delivery to clean up. If the placenta was delivered at 15:10
and he had a baby next door in distress, he would not have
cleaned up the baby and could have returned to Dixon by
15:11. At 16:00, Dr. Atogho returned to Fuentes to do a
repair after Dixon's baby was delivered.
Atogho received $350.00 for each baby delivered, but if he
had called for a backup doctor to deliver Fuentes's baby,
he would not have received the $350.00 for the Fuentes
Atogho believes that there was a woman in her mid-50's in
the room with Dixon. Dr. Atogho believes she was Dixon's
mother. Dr. Atogho believes the woman told Dixon several
times to have the C-section. It was a tense situation. Her
boyfriend was telling her the same thing. Dixon was cussing
the baby was delivered at 15:21 the baby had a low Apgar
score. The neonatal intensive care unit was called but Dr.
Atogho did not make the call. It is up to the nurse to call.
Usually when the Kiwi is used, the neonatal intensive care
unit is called.
Atogho did not tell the NICU personnel that Dixon had refused
a C-section. There would have been no need to tell them since
that would not affect their treatment of the baby. Dr.
Atogho's discharge sheet does not contain any notes that
Dixon refused a C-section.
Atogho cannot specifically recall the nurse leaving the room
but in 90 minutes he believes she must have left the room.
Atogho is aware that there is a refusal of medical treatment
form to be filled out whenever a patient refuses a C-section
but that form was not used in this case. Later that day, near
midnight, he performed a C-section on another patient. There
is no reason, other than the patient's refusal, that he
would not have performed a C-section on Dixon.
manifested pain to the mother at the time of crowning is
significant and can last anywhere from 20 seconds to a
minute. The tendency is to either give up and not push so
that you don't feel the pain, or push through the pain to
get it over with. It is common for women to say something
like “just cut me.” He does not recall Dixon
saying that but it is possible she could have said that.
the baby's head is crowning, you cannot do the C-section
anymore. You would be putting the mother's life at risk
since you would have to push the baby back inside the womb.
In this case, sometime around 14:30 it would have been too
late to do the C-section. In his deposition, he testified
that the C-section was on the table up until the time of the
is a nurse/manager at Memorial Regional. She previously
worked as a staff nurse at North Shore until December 2016.
She has been a nurse since 2005. Since 2008, she has assisted
in the delivery of an average of 3 babies per day.
December 2, 2013, she was the labor and delivery nurse
assisting Dr. Atogho with Marla Dixon's delivery. Prior
to testifying, she reviewed Dixon's records and has a
recollection of the events. From 07:00 until the delivery of
the child at 15:21, she was the nurse in charge of the Dixon
case. Pitocin was started at 09:46 at the low end dosage of
2. The level of Pitocin was gradually increased to 10 by
11:26, when she called Dr. Atogho. It remained at 10 until
the Pitocin was turned off at 13:30 because the baby had a
deceleration of the heart rate.
notified Dr. Atogho at 13:33 of the deceleration of the heart
rate. Dixon was “complete” at 13:33 and McCray
would not have left the room from that time until the
delivery of the child. Dixon pushed for approximately 90
minutes. There are many things that can skew the baby's
heart rate while the mother is pushing. The heart rate
remained in the 150 to 190 range with a baseline of 170.
chart indicates that Dr. Atogho was at Dixon's bedside at
13:49. That was the first time he was at Dixon's bedside.
Had he been there earlier, she would have noted that.
was restarted at 13:50. Although it is not documented, McCray
believes she would have restarted the Pitocin at level 10.
The Pitocin would have continued until the baby was
delivered. After the baby is delivered the Pitocin is
continued wide open until the uterus returns to the normal
the patient was complete, McCray would not have left the room
between the doctor's arrival and the delivery. At no time
while McCray was attending Dixon did Dr. Atogho offer Dixon a
C-section. Dixon said, “just cut me. I want to be cut.
I can't do this anymore.” The father of the child
was present in the room but no other persons were present.
Dixon had refused a C-section, McCray would have documented
the refusal by using a Refusal of Treatment form. No such
form was used in this case because nothing was ever offered
that Dixon refused. McCray would have also faxed the Refusal
of Treatment form to the risk manager.
saw the doctor's progress notes indicating,
“refused c/s.” McCray asked Atogho why he wrote
that when they really didn't offer her a C-section and he
said, “it's the first baby and it was right
there.” McCray knows that note is a lie. In January
2014, she met with representatives of Tenet Health and told
them that Dixon did not refuse a C-section. This was prior to
the commencement of any litigation.
believes the hospital has a rule that the Kiwi cannot be
applied more than three times. The Kiwi was applied at 14:00
and popped off at 14:05. When the mother has a contraction
and pushes, the doctor pulls on the Kiwi to assist in the
delivery. McCray did not find it unusual for Dr. Atogho to
leave the room after the Kiwi popped off. The patient was not
actively delivering. Dr. Atogho would return to the room when
the baby was coming out.
second Kiwi was applied at 14:45 and the third Kiwi was
applied at 14:50. McCray assisted Dr. Atogho on approximately
10 other deliveries and he used the Kiwi 4 to 5 times. Not
all of those occasions were emergency situations.
nurse is responsible for charting the events during the
course of the delivery, and the doctor is responsible for
charting the outcome of the delivery and if there were any
NICU is supposed to be called when a Kiwi is applied, they
are not called until the birth is imminent so they are not
just hanging around and not being used.
Sr. grew up in Miami and graduated high school in Miami. He
played football in high school. He attended Fortis Technical
School, but did not finish his studies there. He later
received an HVAC certificate and worked in that field for a
while. He later worked at Marshalls and now works at CNS
wholesale groceries. Reese-Thornton, Sr. now lives alone in
North Miami. He does not have any hobbies because he has to
be on call for his son.
Sr. met Marla Dixon on MySpace and later met her in person
and dated her. They dated for a year and a half before Earl
Jr. was born. Dixon lived on campus at Job Corps where she
was trying to get a medical administrator nursing degree. At
one point they started living together while she was working
at Job Corps and he was working at Marshalls. They lived
together for 4 months before Dixon got pregnant. It was a
planned pregnancy and he was excited she was pregnant.
Sr. went to the doctors' appointments with Dixon during
her pregnancy. None of the doctors said there was a problem
with the pregnancy. Dixon was skeptical about being a parent
and did research to learn more about pregnancy and births.
They watched videos of vaginal and C-section births.
December 2, 2013 at 1:00 or 1:10, Dixon woke Reese-Thornton,
Sr. up and said her water had broken. Reese-Thornton, Sr. got
dressed quickly and they left about 10 minutes later. They
arrived at the hospital 10 to 15 minutes after that, at
approximately 1:30. Reese-Thornton, Sr. drove his car to the
hospital with Dixon and his mom. His mom came with them so
she could take ...