By Damian D. Capozzola, Esq.

The Law Offices of Damian D. Capozzola

Los Angeles

Jamie Terrence, RN

President and Founder, Healthcare Risk Services

Former Director of Risk Management Services (2004-2013)

California Hospital Medical Center

Los Angeles

Elena N. Sandell, JD

UCLA School of Law, 2018

News: A physician improperly delivered a child, causing permanent injuries, including impairment to the development and use of the child’s right shoulder, hand, and arm. The patient filed a malpractice suit, and a judge awarded the patient $8.3 million in damages.

The clinic appealed, arguing the damages calculation was based on the unsupported assumption the child could have earned $100,000 per year with only a high school education. However, the appellate court rejected the clinic’s arguments, finding the trial court had the discretion in determining comparative cases, and confirmed the award.

Background: During her fourth pregnancy, a patient received medical services from an obstetrician employed by a federally funded clinic. The obstetrician had not been involved in the prenatal care or delivery of the patient’s first three children. Although the patient did not experience complications with her first three pregnancies and deliveries, her second son was macrosomic, or above the average weight range. Macrosomia is a particularly dangerous condition that significantly increases the chances of shoulder dystocia, a condition in which the child’s head is delivered but the shoulders remain stuck in the birth canal. This condition often leads to permanent injuries to the child’s shoulders, arms, or brain due to nerve damage or oxygen deprivation. Furthermore, the risk of shoulder dystocia is directly proportional to the macrosomic child’s weight. Pregnant women who go through difficult deliveries due to this condition are more likely to experience complications during subsequent deliveries. The condition is considered a medical emergency during delivery. It is important for an obstetrician to screen for this condition and accurately estimate the baby’s weight.

Although the patient’s obstetrician knew the patient was at high risk of a complicated delivery due to macrosomia, the obstetrician failed to appropriately manage the pregnancy and advise the patient that a cesarean section would be a safer option. The obstetrician used a method of estimating the fetal weight that he learned during residency. This method, which was not recognized by the medical profession and had not been published or validated in any way, led the obstetrician to estimate a weight that was more than three pounds lower than the actual weight of the fetus at birth.

During delivery, the patient suffered severe complications. The obstetrician used a vacuum extraction, delivering the baby’s head while his shoulders remained stuck in the birth canal. Although the nursing staff performed several maneuvers, delivery only occurred when a different obstetrician intervened after nine minutes of dystocia. The child was blue and did not have a heartbeat at birth. Because of the significant complications, the child had to spend several weeks in neonatal intensive care. The child suffered permanent injuries to his right arm, hand, and shoulder, primarily because the nerves in his right arm had been completely torn away from his spinal cord.

The patient filed a malpractice lawsuit against the obstetrician and the clinic, alleging the obstetrician’s actions constituted malpractice and caused the child’s permanent injuries. The defendants denied liability.

At a bench trial, the judge ruled the obstetrician had acted with negligence and breached his duty of care. The trial court awarded the patient $8.3 million in damages, with $2.6 million constituting lost earnings, assuming the child could have earned $100,000 annually in a skilled trade with no injury and only a high school education.

The defendants appealed, arguing the trial judge should have compared the case to other cases that involved smaller non-economic awards. The defendants did not dispute liability, and instead focused their appeal on the damages calculation. However, the appellate court affirmed the award, finding the damages calculations are inherently difficult when speculating about a five-year-old’s future. Nevertheless, the appellate court ruled the trial court properly evaluated the damages and correctly compared similar cases.

What this means to you: This case reveals lessons about both liability and damages, including the inherently speculative nature of damages for injuries caused to young individuals. In this case, the injuries occurred during birth. With dramatic birth injuries, an individual’s entire course of life may be altered because of a physician or care provider’s negligence. That can carry dramatic financial consequences. Severely injured patients may require constant medical care, may live shorter lives, or may be unable to join the workforce (or join with reduced capacities) as adults. Here, the parties disputed, and the court was required to resolve issues about the extent of the patient’s physical injury on the ability to work.

On the more substantive aspects of malpractice, this case warrants a brief discussion about how preventing such an injury may be implemented: by creating a team trained to deal with shoulder dystocia. Not all dystocia deliveries require a cesarean section, but all potential high-risk deliveries require an experienced team capable of managing a shoulder dystocia. The estimate of fetal weight is an important indicator of potential dystocia; accordingly, assuring the estimate is as accurate as possible is critically important. Guidelines from the American College of Obstetricians and Gynecologists for both the weight estimate and managing the shoulder are the gold standard in the United States. The facility where this occurred employs a medical staff responsible for selecting and credentialing new employees. This would include proctoring for high-risk deliveries to ensure a more experienced physician will attend the high-risk deliveries and be available to step in immediately if the primary physician needs assistance.

For the legal implications and damages on this case, the appellate court considered two main areas of focus. First, the appellate court evaluated the trial court’s methodology for calculating damages; second, the appellate court analyzed whether the trial court abused its discretion in applying this methodology. At trial, both parties offered opinions of vocational experts who presented different methodologies in assessing the child’s lost wages. While the patient’s expert opined that with a high school diploma, the child would have average annual earnings of about $35,000 (approximately $5,000 less than if he had not suffered any injuries), the physician’s expert claimed the injury would only affect the child’s ability of working certain types of occupations involving manual labor. In particular, the physician’s expert noted since the child’s cognitive functions were normal, it was likely the child would complete college and could successfully perform many sedentary or knowledge-oriented careers, with an average annual earning capacity of around $100,000.

The trial court more closely agreed with the physician’s expert. It found the injury would affect the child’s earning capacity. In calculating lost earnings, it considered the physician’s proffered figures, which argued the child may not successfully complete college, thus losing potential earning capacity of $100,000 per year. Due to his injury, the child would be unable to perform manual labor, thus losing the earning capacity of $30,000 per year.

On appeal, the defendant argued any method employed to estimate a five-year-old’s future earnings would be inherently arbitrary, and thus no financial amount could be reasonably awarded. However, the appellate court reiterated this approach would violate state law and found the trial court’s calculation method and award did not constitute an abuse of discretion. The appellate court noted there is an inherent problem in calculating a five-year-old victim’s expected compensation. Nevertheless, such difficulty does not justify an award of zero, especially given the fact that state law specifically provides for a showing of permanent injury and of loss earnings to a degree of reasonably certain truth.

Physicians and care providers are well advised to thoroughly evaluate the extent of the patient’s purported injuries and the associated damages, as challenging the amount of damages is a ripe area for appeals.


  • Decided June 30, 2020, in the United States Court of Appeals for the Seventh Circuit, Case Number 19-3071.