U.S. Court of Appeals Affirms Brachial Plexus Injury Damage Award Where Conflicting Expert Testimony Was Considered

When Yong Juan Zhao gave birth to her son “S.,” the baby suffered an avoidable brachial plexus injury, which severely and permanently impaired the function of his right arm. During her pregnancy and S.’s birth, Zhao was attended by an obstetrician employed by a federally supported grant clinic in southern Illinois; the doctor was considered an employee of the U.S. Public Health Service under 42 U.S.C. 233(g).

Zhao sued for medical malpractice under the Federal Tort Claims Act (FTCA). The court found that the obstetrician had been negligent and signed a judgment awarding Zhao, on behalf of S., $2.6 million in lost earnings and $5.5 million in noneconomic damages.

S. was 5 years old at the time of the trial.

The U.S. Court of Appeals for the Seventh Circuit in Chicago affirmed the trial court’s judgment, rejecting the government’s argument that the calculation of S.’s future lost earnings was improperly speculative, given the uncertainties inherent in projecting a 5-year-old’s career opportunities.

The question to be answered may have been difficult, but there was no reversible error, the appeals panel stated. The trial court took a reasonable approach to the estimate of the lost earnings award based on data provided in expert testimony.

The government also challenged the award of non-economic damages as arbitrary and excessive in comparison to similar cases.

The trial court could have provided a more detailed explanation of its comparative process, but its reasoning did not amount to reversible error, the court of appeals stated.

The U.S. District Chief Judge who heard and entered the judgment order on this case found for Zhao and awarded damages. The district court judge found that Dr. Paul Cruz, the obstetrician with the U.S. Public Health Service, had deviated from the standard of care in numerous respects both during Zhao’s pregnancy and during labor and delivery.

The trial judge awarded Zhao, on behalf of S, approximately $8.3 million in damages:
–$64,967.77 for past medical expenses,
–$80,000 for future medical expenses,
–$2,653,000 in lost earnings,
–$1.5 million for permanent disfigurement of his right arm,
–$2 for the deprivation of a normal life and
–$2 for pain, suffering and emotional distress.

The government challenged the award on appeal, arguing that it was unwarranted and excessive because S. was not disfigured and needed no further medical care and suffered no pain or emotional distress. The government contended it owed medical expenses only.

In the U.S. Court of Appeals’ opinion written by Justice David F. Hamilton, the appeals panel affirmed the $8.3 million award finding under Illinois law the award was supported by expert testimony and comparator cases.

As in most medical malpractice cases, there were competing experts. The appeals panel stated, “After hearing testimony from both parties’ experts, the district judge selected two salary figures from among those offered by the experts, reasonably representing S.’s earnings potential with and without his injury. Using those figures, the court awarded the difference, multiplied by the number of years he is statistically expected to be in the workforce. The district court did not abuse its discretion in choosing the figures it did.”

In continuing, the appeals panel stated that “Zhao’s vocational expert, David Gibson, provided a number of estimates of S.’s lost earning capacity based on different levels of education he might attain. The district court focused most closely on the figures Gibson provided assuming that S. would attain a high school diploma. Without the injury, Gibson estimated S.’s average annual earnings at $40,761; with the injury, $35,839. Gibson concluded that S.’s injury would cause him to lose $916,793 in lifetime earnings capacity with a high school diploma, $1,043,076 with an associate’s degree, and $1,581,779 with a bachelor of arts or science degree. Note that Gibson’s estimate of lost earnings from the physical injury rose with higher levels of education.”

The government’s vocational expert took a different approach. This expert opined that S. would likely be able to perform many sedentary, light, or knowledge-oriented jobs without any impact on his earning capacity. The vocational expert for the government did concede that certain occupations requiring manual labor or physical strength and dexterity in both arms would be largely unavailable to S.

Assuming that S. obtains only a high school diploma, the expert testified that without the injury, he could in theory have made around $100,000 per year in a skilled union operating or engineering trade, but with the injury, he would likely be limited to unskilled occupations paying $20,000-30,000 annually, such as a cashier or payroll clerk. The appeals panel agreed with the district court that found by a preponderance of the evidence that S.’s injury would affect his earning capacity.

In considering the opposing expert testimony, the district court properly applied Illinois law. Like any other category of actual damages, lost earnings damages require “reasonably certain proof.” Brown v. Chicago & N.W. Transportation Co., 516 N.E.2d 320-328-29 (Ill. App 1987); accord, Doering v. Janssen, 394 N.E.2d 721, 723 (Ill. App. 1979). As to the noneconomic damages that was awarded, the court of appeals found that there was no abuse of discretion. The district court structured its analysis by first summarizing the factual basis for granting damages in each category.

The court of appeals stated that it was astonished that the government argued in the district court that S. was not disfigured, would not need further medical care, and suffered no pain or emotional distress from his injury. The government even argued that S. would not experience the loss of a normal life because his injury occurred at birth so that he would know no alternative. The court said that the government’s argument was unrealistic and entirely unsupported, further increasing the court of appeals confidence that the district court did not err.

In conclusion, the court of appeals stated that it was abundantly clear that S. will suffer lifelong effects from this serious and entirely avoidable injury. The award here may have been toward the upper bounds of a reasonable award, but the appeals panel stated that “our job on appeal is not to decide the amount we would award if we had presided over the trial. The district court reached a reasonable decision given the unavoidable difficulty of deciding at one moment in time an amount to provide fair compensation over a lifetime for a now-five-year-old boy’s permanent and life-altering birth injury.”

The government’s arguments that the boy should receive no compensation beyond medical expenses were disappointing and not persuasive. The judgment of the district court in the amount of $8.3 million in damages was affirmed.

Zhao v. United States, No. 19-3071 (7th Cir. 2020).

Kreisman Law Offices has been handling birth trauma injury lawsuits, traumatic brain injury lawsuits, labor and delivery negligence lawsuits and obstetrician negligence cases for individuals, families and loved ones who have been harmed, injured or died as a result of the carelessness or negligence of a medical provider for more than 40 years in and around Chicago, Cook County and its surrounding areas, including Long Grove, Libertyville, Mount Prospect, Vernon Hills, South Chicago, Blue Island, Arlington Heights, Orland Park, Olympia Fields, Chicago (West Town, Wicker Park, Austin, North Lawndale, Back of the Yards, Little Italy, Greek Town, Wrigleyville, Hyde Park, Bronzeville, Rogers Park, Albany Park, Uptown, Andersonville), Rosemont, River Grove, Oak Park, Lombard, LaGrange, Wheaton, Aurora, St. Charles and Naperville, Ill.

Robert D. Kreisman has been an active member of the Illinois and Missouri bars since 1976.

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