The US Federal Government has dropped its effort to appeal a nearly $42 million birth injury verdict, meaning a family from Pennsylvania will be able to collect the monetary award designed to provide for their son’s lifetime care, the Legal Intelligencer reports. As Judge Sylvia H. Rambo of the US District Court of Pennsylvania found after a six-day bench trial, the child suffered multiple skull fractures and extensive brain damage during his forceps-assisted delivery in 2012.
Government Liable For Child’s Birth Injuries, Judge Finds
The obstetrician found responsible, Dr. Thomas Orndorf, is employed by the Keystone Women’s Health Center in Chambersburg, Pennsylvania, which is funded by the US Health Resources & Services Administration. Due to this federal funding, Dr. Orndorf is considered a government employee, which is why the government found itself hit by a massive birth injury lawsuit in 2013.
In their lawsuit, a Pennsylvania couple accused Dr. Orndorf and the United States Government of providing their child with negligent care. Despite the mother’s absolutely-normal pregnancy, Dr. Orndorf chose, without a hint of rational justification, to use forceps, “forcefully pull[ing]” at the child’s head, Judge Rambo wrote in her Findings of Fact & Conclusions of Law.
Orndorf did so, the Judge says, even though he himself, along with a prior obstetrician, Dr. Hilary Ginter, had both considered the mother’s labor progression to be completely normal. Forceps, in short, were in no way indicated.
Experts Say Pregnancy, Labor Were Perfectly “Normal”
That was the conclusion of Dr. Andrew Gerson, an expert in obstetrics who testified in favor of the plaintiffs at trial. Reviewing records from the delivery, Dr. Gerson testified that all signs for the labor and delivery were reassuring.
The child’s heart readings “were normal,” Judge Rambo notes, “which predicted a vigorous well-oxygenated baby that one would expect to have normal Apgar scores.”
Even so, Dr. Orndorf attempted a risky mid-forceps delivery, applying forceps to the child’s head long before the boy’s head had passed through his mother’s pelvis. At trial, Dr. Gerson told the Court that mid-forceps deliveries, like the one tried by Dr. Orndorf, “are only indicated under severe emergencies that are either life threatening to the mother or to the baby because of the high and frequent risk of harm, including a high rate of skull fractures.”
Obstetrician Admitted To Risky Delivery Method
Dr. Orndorf, the Judge found, used an extremely-dangerous delivery technique, even though the child’s birth was proceeding safely. In his own deposition for the case, Dr. Orndorf admitted as much. During questioning, the physician conceded that he had performed a mid-forceps delivery, also acknowledging that such a technique can significantly increase the risk of harm to both mother and child, especially when the child is still positioned far up the birth canal.
Clinical Guidelines For Mid-Forceps Delivery
Both Keystone Women’s Health Center and the Chambersburg Hospital where the delivery was performed use guidelines written up by the American College of Obstetrics and Gynecology as best practices. Those guidelines clearly state that the only acceptable indication for a forceps delivery, let alone a mid-forceps delivery, is when the second stage of labor has lasted at least two hours, physicians become worried about the fatigue a prolonged labor will cause the mother and the baby may be at immediate risk of harm.
None of these conditions were met, Dr. Orndorf admitted. Yet he attempted the risky delivery anyway and, tragically, inflicted severe injuries on the child, Judge Rambo writes.
Multiple Skull Fractures & Severe Brain Damage
Testifying for the plaintiffs, Dr. Eric Marsh, Dr. Neal Madan and Dr. Mark Dias, all expert pediatric neurologists, said that Dr. Orndorf’s aggressive use of forceps caused the baby to suffer “multiple skull fractures, pervasive bleeding in the brain, and severe destruction to the cerebellum and brain stem.”
Since his birth, the boy has undergone six brain surgeries. More procedures are likely in the future. He suffers from seizures, piercing headaches and breathing problems. Permanent damage to his brain’s white matter has led to significant neuromuscular impairments.
As Dr. Marsh noted in his testimony, the boy, named only as D.A. in court documents, “will always have mis-coordination of limb movements, uneven gait, and weakness on his right side, which will limit his ability to function.”
Next to testify was Dr. Lee Ann Annotti, a child psychologist. Dr. Annotti believes that D.A.’s cognitive impairments “are pervasive and will impact him for his entire life.” Currently, D.A. has developmental delays in communication, social-emotional functioning, problem-solving cognition and motor development. He can understand language, but is “unable to express himself,” Judge Rambo notes.
Care Planner Estimates $33M In Lifetime Medical Costs
D.A.’s severe neurological and physical disabilities will affect him for the rest of his life, the Judge writes. Relying on an exhaustive life care plan drafted by Mona Yudkoff, the Court found that D.A. will never be able to live independently. He will not be able to drive a car.
Nor will he able to read for comprehension, write or solve more-complex abstract problems. Now five-years-old, D.A. currently relies on a stroller to get around, but in the future, he’ll need a motorized wheelchair. He is too weak, Judge Rambo says, to use a manual wheelchair. D.A.’s language difficulties will impact his ability to maintain relationships with his peers.
By the age of 22, Yudkoff says, D.A. will need to be placed in a long-term care facility. Needless to say, his family has and will continue to incur enormous financial expenses to care for their child.
Judge Notes Extraordinary Expense Of Caring For Child
In her court order, Judge Rambo notes that the family has already paid out over $100,000 in medical expenses for treatments directly related to their son’s birth injury, a sum for which they had to put a lien on their home. The future brain surgeries alone are expected to cost an additional $200,000.
Taking neurological testing, orthopedics, behavioral therapy and attendant care into account, D.A. will need a further $2 million over the course of his lifetime. Adding the cost of placing D.A. in a long-term care facility, the estimated total for his lifetime medical care at present market rates is more than $9.2 million. Taking inflation into account, the cost of D.A.’s birth injuries will likely near $33 million, Judge Rambo reports.
But D.A. has also lost his ability to find gainful employment, along with the sense of purpose and accomplishment that work brings for so many of us. He’s experienced enormous pain and suffering as well, Judge Rambo writes, which will only continue in the future. “The brain injuries are severe, permanent, and will prevent D.A. from performing life’s basic functions and caring for himself,” the Judge says.
Medical Negligence “Direct & Substantial” Cause Of Injuries
And all of these injuries, the Court concluded, were caused by the medically-negligent treatment provided by Dr. Thomas Orndorf. “Dr. Orndorf’s delivery of D.A. on February 21, 2012 fell below the standard of care and was negligent,” according to Judge Rambo. The doctor’s negligence, in turn, “was a direct and substantial factor in causing D.A.’s injuries.”
$41.6 Million In Damages
But the United States is liable for the boy’s injuries, the Judge says, because Dr. Orndorf is a federal employee. The Court ordered the US government to pay D.A.’s family an immediate lump sum of $103,967.10 to cover their past medical expenses and pay off the lien.
Then, Judge Rambo ordered the government to pay an additional $32,994,383.50 for D.A.’s future medical care. A final award of $8,553,616 was assessed to compensate D.A. for his pain and suffering, loss of life’s pleasures and lost earning capacity. The final total, to be paid into a trust fund, came to $41,651,966.60.
Government Will Pay Award, “Respects” Court’s Judgment
It’s not surprising that attorneys for the federal government appealed Judge Rambo’s decision almost immediately. Now, one year after Judge Rambo announced her findings in the case, the government has chosen to withdraw its appeal, US News & World Report writes.
In a statement to the press, U.S. Attorney David J. Freed said, “we respect the court’s decision in this matter, and wish nothing but the best for the minor child and his parents.” In dropping the appeal, government officials have agreed to pay D.A. and his family the full $42 million judgment.