Facts

Micaela Palacio, the mother of plaintiff I.P., had two prior vaginal deliveries and received pre-natal care for her pregnancy at the Northeastern Rural Health Clinic, a federally funded clinic in Susanville. There were no problems during the pregnancy and on Apr. 29, 2012, the mother went to Banner-Lassen Hospital where she was admitted in labor. She quickly progressed from 4 cm at admission at 11 p.m. to between 8 and 9 cm at 2:15 a.m. on Apr. 30.

The on-call obstetrician, Dr. Paul Davainis, a family practice doctor with full obstetrical privileges, was called. Dr. Davainis came in at 2:15 a.m., expecting a vaginal delivery could occur within the hour. The fetal monitor tracing on admission was a Category I but became a Category II at 1:30 a.m. with decelerations, although with moderate variability. Cervical dilation did not become complete after 2 a.m., although Dr. Davainis observed some continued progress in labor and he was hopeful that the baby could be delivered vaginally. The fetal monitor strip continued to show a Category II tracing with deeper decelerations that became progressively repetitive.

At 4:00 a.m., Palacio had dilated to a rim of cervix. Dr. Davainis had the mother push although she was not completely dilated. At 5 a.m. he called for delivery by C-section and asked for an assistant surgeon and the surgical scrub tech to come in, and they arrived into the operating room by 5:15 a.m. In the OR, fetal heart tones were lost and Dr. Davainis asked the CRNA to give general anesthesia. Surgery started at 5:22 a.m. and the baby was delivered between 5:24 a.m. and 5:28 a.m. The Apgar scores were 0, 2, 3 at 1, 5, 10 minutes. Full resuscitation was performed with intubation and epinephrine. Plaintiff was then transferred to UC-Davis Medical Center for brain cooling. Plaintiff was then diagnosed with hypoxic-ischemic encephalopathy.

Plaintiffs I.P. and Micaela Palacio filed suit against the United States.

PLAINTIFFS' CONTENTIONS:
Plaintiff claimed the standard of care required that Dr. Davainis order an earlier C-section, by 4 a.m. at the latest, and delivery before 5 a.m. would have prevented any injury. The baby was delivered at 5:28 a.m., although Dr. Davainis claimed that the baby was delivered by 5:24 a.m..

DEFENDANT'S CONTENTIONS:
Defendant claimed the standard of care did not require a C-section before it was called at 5 a.m. because variability in the fetal heart rate persisted, indicating that the fetus was not acidotic, and because Dr. Davainis observed continued labor progress that made it reasonable for him to anticipate a likely vaginal delivery. Defendant also contended that I.P.'s injury was caused by an unpredictable cord accident and that the resuscitation was performed quickly and efficiently, saving I.P.'s life. In addition, defendant contended that delivery occurred within 30 minutes of when the C-section was called, consistent with the American Congress of Obstetricians and Gynecologists standards. Defendant claimed that plaintiff I.P. only requires HHA care because both side's experts agreed that her parents, who are not Licensed Vocaional Nurses, have provided adequate care.

Settlement Discussions

A private mediation was held on Feb. 17, 2012.

Damages

Past medical care costs of $87,521.30 (MediCal lien), Future medical care costs of $7,753,349 for 24 hour LVN care, $544,139 for other future care costs per plaintiff, $2,473,823 for 24 hour HHA care, $517,882 for other future care costs per defendant. Future loss of earnings $967,796 per plaintiff, $464,311 per defendant.

Injuries

Plaintiff was diagnosed with severe cerebral palsy. Plaintiff claimed she requires feeding through a gastric tube and suffers occasional seizures. Plaintiff also claimed she requires frequent suctioning, and requires 24-hour LVN care from a licensed home health agency.

Result

The court found that the medical care provided in the resuscitation of I.P was lifesaving and not negligent, but found that Dr. Davainis was negligent. Plaintiffs were awarded $7,753,349 for 24 hour LVN care through home health agency with a 20 year life expectancy, $544,139 for all other future medical costs, $967,796 for future loss of earnings (all future damages are in present cash value), $87,521 for past medical care costs, $250,000 for I.P.'s non-economic damages, and $250,000 for mother's non-economic damages for a total award of $9,609,305. The court then reduced the total by $243,500 based on prior settlement under Rashidi v. Moser 60 Cal.4th, 718, since the U.S. presented no evidence of hospital liability, and the hospital settlement with the father of I.P. was not offset.

Other Information

Prior to trial the hospital settled for a confidential amount, which was partially deducted from the judgment entered by the federal court.