U.S. Court of Appeals Reverses $7 Million Damage Award for Baby’s Brain Injury Caused by Physician’s Malpractice

This case arose from the tragic set of events involving A.F., a baby born with severe respiratory problems who developed permanent brain damage. A.F.’s mother, Kayla Butts, brought this lawsuit claiming that A.F.’s brain damage was caused by the medical malpractice of Dr. Sarah Hardy. It was alleged that Dr. Hardy should have transferred Baby A.F. from the hospital where A.F. was born to a hospital with a neonatal intensive care unit that could have provided the care A.F. needed in the hours after her birth.

After a bench trial, the district court agreed and entered judgment in favor of Kayla Butts for over $7 million in damages. On appeal, the U.S. Court of Appeals considered whether she presented sufficient evidence to establish that Dr. Hardy violated the applicable standard of care.

Because the district court’s finding on that issue was clearly erroneous, the court of appeals reversed the district court’s order and vacated the judgment against Dr. Hardy.

Butts delivered A.F. at Berkeley Medical Center in Martinsburg, W.Va. Berkeley Medical Center did not have an NICU (neonatal intensive care unit), so infants who required additional support were cared for in Berkeley’s “Max Care Nursery.” The Max Care Nursery offered specialized care to newborn infants, including an oxygen-delivery system and equipment to provide intubation.

However, the Max Care Nursery did not have all of the equipment found in an NICU, including a breathing device known as a continuous positive airway pressure machine. Infants delivered at Berkeley Medical Center who needed specialized care that Berkeley could not provide were often transported to the NICU at Winchester Medical Center in Virginia.

At the time of these events, Berkeley Medical was working to establish an NICU of its own. It had hired a board-certified neonatologist to establish and manage an NICU, but the doctor arrived at Berkeley Medical only a few days before A.F.’s birth and had not established the NICU at that time.

A.F. was born at Berkeley Medical around 9 a.m. and immediately exhibited signs of respiratory distress. In the minutes following delivery, A.F.’s Apgar scores, a diagnostic tool that allows a physician to evaluate a child’s physical health by measuring breathing effort, heart rate, muscle tone, reflexes and skin color, was low. Nurses provided immediate treatment to aid A.F.’s breathing, including suctioning A.F.’s airway. Ten minutes after birth, A.F.’s Apgar scores had improved, but because of these initial complications A.F. was transferred to Berkeley’s Max Care Nursery.

Dr. Hardy, a pediatrician, was on call the morning of A.F.’s birth. Soon after A.F. was delivered, the hospital paged Dr. Hardy, and she arrived there at around 9:15 a.m. Dr. Hardy noticed A.F.’s respiratory distress and low glucose levels. The doctor prescribed antibiotics to prevent infection and ordered a range of tests and diagnostics to assess A.F.’s breathing problems. Dr. Hardy also placed A.F. under an oxyhood, a device that provides extra oxygen.

Dr. Hardy then returned to her office for a few hours while maintaining telephone contact with the attending nurse. While Dr. Hardy was away, A.F., with the aid of the oxyhood, maintained acceptable oxygen-saturation levels, but the baby continued to experience breathing problems.

Dr. Hardy came back to Berkeley around noon. At that time, A.F. was not improving. For that reason, Dr. Hardy initially decided to transfer A.F. to the Winchester NICU. However, a nurse manager at Berkeley suggested that Dr. Hardy consult with the new neonatologist physician prior to transfer. Dr. Hardy consulted with the doctor around 1:30 p.m. The neonatologist assured Dr. Hardy that Berkeley had the necessary equipment and staffing for him to provide care to A.F., and he specifically told Dr. Hardy that a transfer to Winchester NICU was unnecessary. After this discussion with the neonatologist, it was agreed that the neonatologist would take over care of A.F.

Over the next 24 hours, A.F.’s condition continued to deteriorate. Ultimately, on the afternoon of the day following A.F.’s birth, the neonatologist ordered her to be transferred to the NICU at Winchester. A.F. remained there for nearly a month. While the parties dispute the timing and cause, there was no dispute that A.F. suffered irreversible brain damage from the insufficient flow of oxygenated blood to her brain.

As a result of A.F.’s injuries, Kayla Butts sued multiple defendants including Berkeley Medical, the neonatologist and Dr. Hardy alleging medical negligence. Because Dr. Hardy was employed by a federally funded hospital, the U.S. substituted itself on behalf of Dr. Hardy under the Federal Torts Claim Act (FTCA), 28 U.S.C. ¶¶ 1346(b), 2671-2680.

Prior to trial, all the defendants except the U.S. settled with Butts. The lawsuit and trial continued against the United States as a bench trial. The federal district court judge found in favor of Butts and against the U.S., finding that “Dr. Hardy should have transferred A.F. to [Winchester] the same afternoon A.F. was born . . .” The court also found that Dr. Hardy was not absolved by her transfer of care to the neonatologist because, even though he was a board-certified neonatologist, he “was without an NICU. Thus, at a minimum, he lacked the appropriate equipment, specialized staff or necessary protocols to adequately assess and treat a baby who needed intensive care.”

After this finding by the district court, the United States filed a timely appeal.

On appeal, the U.S. argued that Butts did not introduce sufficient evidence to support a conclusion that Dr. Hardy breached the applicable standard of care. To establish a breach, the law requires a party to bring a medical malpractice claim to show that “[t]he health care provider failed to exercise that degree of care, skill and learning required or expected of a reasonable, prudent health care provider in the profession or class to which the health care provider belongs acting the same or similar circumstances. . .”

The expert that Butts produced at trial, a physician board certified in pediatrics and neonatal perinatal medicine, testified that by noon “the child, I think would have been far better served in a different hospital.” The expert further opined that because of A.F.’s continuing symptoms in deteriorating condition, “that child should have been transferred.” But the expert doctor significantly qualified his opinion on cross-examination when he acknowledged that transfer to an NICU was not required. Rather, the doctor opined “the child should have been transferred either to a higher level of care within Berkeley Medical Center or to an NICU.”

The doctor testifying as an expert on behalf of Butts acknowledged that Dr. Hardy did in fact transfer A.F. to the neonatologist who had been hired to start an NICU at Berkeley. The expert doctor also opined on cross-examination that the first time the neonatologist was required to transfer A.F. under the applicable standard of care was 11:15 pm that night. Critically, this was almost 9 hours after Dr. Hardy transferred A.F. to the neonatologist at Berkeley.

Based on the plaintiff’s expert physician’s testimony, Dr. Hardy did not violate any generally applicable standard of care. In conclusion, the U.S. Court of Appeals for the 4th Circuit reversed and held that the district court clearly erred by finding that plaintiff presented sufficient evidence to establish that Dr. Hardy violated the applicable standard of care. In this case, the district court’s finding on breach of the standard of care was not supported by plaintiff’s own expert testimony. Therefore, the district court erred in finding that Dr. Hardy was liable for medical malpractice.

Butts v. United States, 18-1693 (U.S. Court of Appeals for the 4th Circuit, July 11, 2019).

Kreisman Law Offices has been handling birth trauma injury lawsuits, traumatic brain injury cases, birth injury lawsuits, and medical 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 Oak Brook, Franklin Park, Morton Grove, Glenview, Northbrook, Glencoe, Hawthorne Woods, Vernon Hills, Lake Forest, North Chicago, Waukegan, Round Lake Beach, Crystal Lake, Mount Prospect, Niles, Lincolnwood, Rosemont, Evanston, Chicago (Logan Square, Greek Town, West Town, Wicker Park, Humboldt Park, Austin, McKinley Park, Woodlawn, Chatham, Washington Heights, West Pullman, Hegewisch, East Side), Crestwood, Alsip, Blue Island, Calumet Park, Burbank and Bridgeview, Illinois.

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

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