Failure to perform timely C-section leads to cerebral palsy. $9,609,305 bench verdict plus earlier settlement.

The Case

  • Case Name: I.P. v. United States of America
  • Court and Case Number: United States District Court Eastern District of California / 2:13-cv-01012-JAM-CKD
  • Date of Verdict or Judgment: Thursday, October 29, 2015
  • Date Action was Filed: Monday, August 13, 2012
  • Type of Case: Medical Malpractice
  • Judge or Arbitrator(s): Hon. John Mendez
  • Plaintiffs:
    Micaela Palacio (mother of I.P.)
  • Defendants:
    United States of America
  • Type of Result: Bench Verdict

The Result

  • Settlement Amount: Defendant Banner-Lassen Hospital settled for a confidential amount.
  • Award as to each Defendant:

    $9,609,305 present cash value after offset for pre-trial settlement with hospital.

  • Economic Damages:

    $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.

  • Non-Economic Damages:

    $250,000 for I.P.’s non-economic damages. $250,000 for mother’s non-economic damages. 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.A. presented no evidence of hospital liability, and the hospital settlement with the father of I.P. was not off-set.

The Attorneys

  • Attorney for the Plaintiff:

    Law Offices of Bruce Fagel & Associates by Bruce G. Fagel, Beverly Hills.

  • Attorney for the Defendant:

    Office of U.S. Attorney by Victoria Boesch and Chi Soo Kim, Sacramento. (For U.S.A.)


Facts and Background

  • Facts and Background:

    Mother of I.P. had two prior vaginal deliveries and received pre-natal care for this 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 9 cm at 2 a.m. on Apr. 30. The on-call obstetrician, Dr. Paul Davainis, a family practice doctor with full obstetrical privileges, was called and came in at 2:15 a.m. expecting a vaginal delivery 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. There was no further progress in cervical dilation 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 3:45 a.m. Dr. Davainis had the mother start pushing 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 at 5:28 a.m., although Dr. Davainis claimed that the baby was delivered by 5:24 a.m..

    The Apgar scores were 0, 2, 3 at 1, 5, 10 minutes. Full resuscitation was performed with intubation and epinephrine. The baby was
    then transferred to UC-Davis Medical Center for brain cooling. The baby was then diagnosed with hypoxic-ischemic encephalopathy and a g-tube was placed for feeding. The child requires frequent suctioning and has occasional seizures.

  • Plaintiff's Contentions:

    That 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. That plaintiff I.P. requires 24-hour LVN care from a  licensed home health agency.

  • Defendant's Contentions:

    That 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.) Dr. Davainis observed continued labor progress that made it reasonable for him to anticipate a likely vaginal delivery. 

    That I.P.’s injury was caused by an unpredictable cord accident, and the resuscitation was performed quickly and efficiently (saving I.P.’s life).  Delivery occurred within 30 minutes of when the C-section was called, consistent with ACOG standards.

    Further, that plaintiff I.P. only requires HHA care because both side’s experts agreed that her parents, who are not LVNs, have provided adequate care.

Injuries and Other Damages

  • Physical Injuries claimed by Plaintiff:

    Severe Cerebral Palsy with g-tube feeding, seizures.

Special Damages

  • Special Damages Claimed - Past Medical: $87,521.30 (MediCal lien)
  • Special Damages Claimed - Future Medical: $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.
  • Special Damages Claimed - Future Lost Earnings: $967,796 per plaintiff, $464,311 per defendant

Additional Notes

Case was originally filed in Lassen County Superior Court and was then removed to Federal Court when it was determined that the clinic that employed the doctor was a “federal entity” – case was then re-filed in Federal Court as a Federal Tort Claims Act case.

Per defense counsel:

The Court concluded that the C-section should have been called earlier, but also concluded that the medical care provided in the resuscitation of I.P was life-saving and not negligent.