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Dixon v. United States

United States District Court, S.D. Florida

April 28, 2017

Marla Dixon and Earl Reese-Thornton, Sr., individually and as parents and natural guardians of Earl Reese-Thornton, Jr., Plaintiffs
v.
United States of America, Defendant.

          AMENDED VERDICT AND ORDER FOLLOWING NON-JURY TRIAL

          ROBERT N. SCOLA, JR. UNITED STATES DISTRICT JUDGE

         The 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.

         Count 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.

         Both 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.

         On 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.

         1. Summary of the Testimony

         Irene Dixon (by videotaped deposition taken May 25, 2016)

         After 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.

         Irene 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 taking Aricept.

         Marla 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.

         Irene 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.

         Dr. Richard S. Boyer (by deposition transcript)

         With the parties' agreement, the Court reviewed the deposition testimony of Dr. Boyer taken on September 21, 2016.

         Dr. 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.

         Dr. 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 the nomenclature.

         There 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.

         Dr. Sze 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 in 2010.

         During 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.

         That 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.

         In some 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.

         Babies 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.

         Hypothetically, 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.

         Dr. 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.

         Dr. 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.

         There 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.

         In 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.

         We also 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.

         Other 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.

         If an 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.

         It is 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.

         The 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.

         By 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.

         Dr. 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 brain.

         There 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.

         The 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.

         The 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.

         Dr. 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.

         Dr. Gordon Sze (by deposition transcript)

         With the parties' agreement, the Court reviewed the deposition testimony of Dr. Sze taken on September 23, 2016.

         Dr. Sze 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.

         Dr. 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.

         Partial 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.

         Acute 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.

         It is 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 multiple possibilities.

         Dr. Sze 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.

         Based 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.

         The 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.

         Dr. Sze 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 delivery.

         Dr. Sze 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.

         In a 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).

         There 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.

         Dr. Sze 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 profound injury.

         Dr. Ata Atogho

         Dr. 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.

         Jessie 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 Gynecology (ACOG).

         Dr. 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.

         Dr. 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 surgical delivery.

         At 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.

         The 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.

         Dr. 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.

         Upon 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 conversation earlier.

         The 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.

         Dr. 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.

         After 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.

         Dr. 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.

         It's 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.

         The 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.

         Dixon's 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.

         Dr. 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.

         From 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 baby.

         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.

         Dr. 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 C-section.

         He 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.

         Dr. 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 Dixon.

         The 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.

         Dr. 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 delivery.

         Dr. 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 them out.

         When 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.

         Dr. 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.

         Dr. Atogho cannot specifically recall the nurse leaving the room but in 90 minutes he believes she must have left the room.

         Dr. 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.

         The 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.

         Once 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 delivery.

         Yolande McCray

         McCray 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.

         On 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.

         She 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.

         The 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.

         Pitocin 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 position.

         Because 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.

         If 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.

         McCray 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.

         McCray 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.

         The 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.

         The 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 interventions.

         Although 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.

         Earl Reese-Thornton, Sr.

         Reese-Thornton, 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.

         Reese-Thornton, 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.

         Reese-Thornton, 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.

         On 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 ...


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