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Miriam Kawache, An Infant, By Her Parents and Natural Guardians v. the United States of America

February 7, 2011


The opinion of the court was delivered by: Matsumoto, United States District Judge:



Serena Kawache ("Ms. Kawache") and Adam Kawache ("Mr. Kawache") commenced this action on behalf of their minor child, Miriam Kawache ("Miriam") (collectively "plaintiffs") pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346 and 2671 et seq. ("FTCA"), seeking damages from the United States ("defendant") for a birth injury sustained by Miriam Kawache and allegedly caused by the delivering physician's departure from the applicable standard of medical care. (See ECF No. 9, Joint Pre-trial Order ("PTO") at ¶ 2.) Specifically, plaintiffs claim that a deemed employee of the United States, Dr. Ahmad M. Jaber, M.D. ("Dr. Jaber"), departed from the applicable standard of medical care when attending to the birth of Miriam Kawache on December 12, 2005 because, when confronted with the birth complication of shoulder dystocia, Dr. Jaber failed to perform the appropriate obstetrical maneuvers and instead applied excessive lateral traction to the infant's head and thereby caused the child's permanent Erb's palsy injury, also known as a brachial plexus injury.*fn1 (Id.) The claim was tried before this court between May 11 and May 13, 2010. (See generally, Tr.)*fn2

Having considered the evidence at trial, assessed the credibility of the witnesses, and reviewed the post-trial submissions of the parties,*fn3 the court makes the following findings of fact and conclusions of law pursuant to Rule 52 of the Federal Rules of Civil Procedure*fn4 ("Rule 52") and ultimately concludes, for the reasons set forth below, that plaintiffs have failed to prove that the United States is liable for the injuries sustained by their daughter.



1.Shoulder Dystocia

Shoulder dystocia, in simplest terms, is defined as a "difficult delivery of [a baby's] shoulders" during a vaginal delivery. (Tr. at 211.) Specifically, according to plaintiff's medical expert, shoulder dystocia occurs when a baby's "head has exited the vaginal canal and the shoulders are stuck . . . so the baby can't deliver because the shoulders are impeding the progress of the baby." (Id. at 210.) The shoulders impede the baby's progress in this situation because the shoulders are "held in two positions," in that the baby's anterior (top) shoulder is stuck behind the mother's pubic bone, while the baby's posterior (bottom) shoulder is stuck behind the mother's sacrum (tail bone). (Id. at 80, 210, 367, 491; see also Ex. I.)

Shoulder dystocia is recognized by obstetricians when "[t]he head comes out and the shoulders just don't follow," thereby interrupting the birth. (Tr. at 367.) In medical parlance, this event is often referred to as the "turtle-sign" because the appearance of the baby's head from the vaginal canal and then retracting upon the impaction of the baby's shoulders resembles a turtle retracting its head into its shell. (Id. at 90, 210-11.)

2.Proper Treatment of Shoulder Dystocia:

The McRoberts Maneuver and Supra-Pubic Pressure Shoulder dystocia is a dangerous birth complication because without quick treatment it could lead to the impacted infant being be stillborn or being born brain dead. (See Tr. at 223-24.) There is no dispute as to the proper standard of care for treating this complication as the parties agree that when shoulder dystocia occurs, a doctor must attempt to perform certain maternal maneuvers in an attempt to dislodge the infant's shoulders. (Id. at 212, 247-48, 360, 369.) The maternal maneuvers that should first be utilized by obstetricians confronting shoulder dystocia are the McRoberts maneuver and supra-pubic pressure (herein, the "maternal maneuvers"). (Id. at 212, 247-48, 360, 369.) These maneuvers are attempted first because they are the "simplest to do" in that they are "the least traumatic" and the "least manipulative." (Id. at 369.) Moreover, these maneuvers resolve ninety percent of shoulder dystocia cases. (Id.)

The McRoberts maneuver involves flexing the mother's knees towards her chest wall in order to change the angle of the mother's tail bone. (Id. at 212, 214-15; see also id. at 80.) By flattening the tail bone, the maneuver provides more space in the mother's pelvic area, enabling the infant's impacted shoulders to dislodge and the delivery to continue through the vaginal canal. (Id. at 212, 214-15; see also id. at 80.) The McRoberts maneuver is usually performed with the assistance of a healthcare worker or family member pushing back the mother's legs although it is possible, regardless of whether or not the mother has had an epidural block,*fn5 for the mother herself to accomplish the maneuver. (Id. at 232-33, 364-65.)

Supra-pubic pressure involves the application of pressure with the palm or fist of one hand just above the mother's pubic bone. (Id. at 81, 212, 375.) The purpose of this technique is to push the infant's impacted anterior shoulder down below the mother's pubic bone so that the shoulder can be dislodged and the delivery can proceed. (Id.) Generally, supra-pubic pressure is performed by either a nurse or resident assisting the delivering physician. (Id. at 375.)

In the "rare" event that the McRoberts maneuver and supra-pubic pressure fail to dislodge the infant's impacted shoulders, a physician may employ additional maneuvers and techniques in an attempt to successfully deliver the infant vaginally. (Id.; see also id. at 212-15.) Such additional maneuvers may include the Woods maneuver, the Woods Screw maneuver, the posterior arm maneuver, and the Gaskin maneuver, none of which are relevant here. (Tr. 212-15.) Ultimately, if none of the foregoing maneuvers succeed, a physician may either resort to the use of excessive lateral traction or to cephalic replacement, neither of which was employed here, which involves pushing the infant's head back into the birth canal in order to perform an emergency cesarean section. (Id. at 223-24.) Notably, upon recognition of shoulder dystocia and prior to the use of the McRoberts maneuver and supra-pubic pressure, application of excessive lateral traction to the infant's head is a departure from the standard of care. (Id. at 230, 403.)

3.Dr. Jaber's Training and Experience

Born and raised in Palestine, Dr. Jaber's native language is Arabic. (Id. at 78.) Dr. Jaber attended medical school at Mosul University in Iraq, graduating in 1972. (Id.) After a short period practicing medicine in Amman, Jordan, Dr. Jaber moved to this county in 1974 and completed additional medical training including an internship at Flushing Hospital Medical Center in Queens and a residency program in obstetrics and gynecology at Lutheran Medical Center in Brooklyn. (Id. at 79.)

Dr. Jaber has been board certified in obstetrics and gynecology since 1982 and has practiced as an obstetrician and gynecologist ("ob/gyn") in this country for over thirty years. (Tr. at 79.) During that time, Dr. Jaber has attended nearly 5,000 deliveries including more than twenty-five deliveries involving the complication of shoulder dystocia. (Id. at 54, 79-80.) At all times relevant to this action, Dr. Jaber was a "deemed employee" of the Sunset Park Family Health Center Network, a federally funded health center. (Id. at 34; PTO ¶ 8(d).)

4.History of Dr. Jaber's Treatment of Ms. Kawache

Among the deliveries attended by Dr. Jaber was the delivery of Ms. Kawache's first child, Yusuf. (Id. at 34.) Yusuf Kawache was born without complication in January 2002. (Id.) During Ms. Kawache's second pregnancy, Dr. Jaber provided prenatal care to Ms. Kawache in partnership with a midwife. (Id. at 36, 81.) Ms. Kawache's mother, Rosanne Sinti ("Ms. Sinti") accompanied Ms. Kawache on more than one prenatal visit to Dr. Jaber. (Id. at 126.) During one visit, Ms. Sinti asked Dr. Jaber to write a doctor's note requesting Visiting Nurse Services for Ms. Kawache because Ms. Kawache was suffering from depression. (Id. at 81, 83, 126; Ex. A at D 19, D 21; see also D 30, D 32-33, D 45-47.) Dr. Jaber refused to provide a referral for the Visiting Nurse Service on the grounds that there was no obstetrical need for additional nursing services at that point in Ms. Kawache's pregnancy. (Tr. at 84.) Rather, Dr. Jaber suggested that such a referral might be available from the psychiatry department given that the reason for the requested additional care related to Ms. Kawache's mental health. (Id.) Ms. Sinti testified that she felt "very disappointed" and "hurt" when Dr. Jaber refused her request. (Id. at 127-28.)

Ms. Kawache's prenatal care was otherwise uneventful. Ms. Kawache's uterus bore no signs of malformation. (Id. at 34-35, 177, 428.) Additionally, the three ultrasounds performed during the course of Ms. Kawache's pregnancy with Miriam indicated no congenital anomalies with the fetus. (Id. at 35, 37.)



According to the medical records, Ms. Kawache was admitted to Lutheran Medical Center on December 12, 2005 at 7:45 a.m. in early labor.*fn6 (Ex. A at D 30.) Ms. Kawache's delivery team consisted of Dr. Jaber, an ob/gyn resident named Dr. Rosenberg, a labor and delivery nurse named Patricia Wuensch, a senior resident whose name is unknown, and other assistants. (Tr. at 37, 40, 47, 88-89.) All of these persons were present in the delivery room during the delivery. (Id.) Also in the delivery room was Ms. Kawache's mother, Ms. Sinti, who accompanied her daughter to the hospital and stayed with her through the delivery. (Tr. at 111-12, 132.) A friend of Ms. Kawache named Eman, who now resides in Egypt according to Ms. Sinti, was also present for the delivery of the baby. (Id. at 113.) Ms. Kawache's husband, Adam Kawache, was not present during the delivery because he was caring for the couple's older child, Yusuf, and dealing with the aftermath of a fire which occurred in the couple's apartment earlier that morning while Ms. Kawache was in labor. (PTO at ¶ 8(f); Tr. at 121-22.) Plaintiffs presented eyewitness testimony from Dr. Jaber, Ms. Sinti, and Ms. Kawache.

There is no dispute regarding the early stages of Ms. Kawache's labor which progressed normally without any signs of fetal distress or maladaption, which occur when the fetus presents in an unusual position. (Id. at 35.) Dr. Jaber came into the delivery room to check on Ms. Kawache on at least three occasions after her arrival. (Id. at 133-34.) Dr. Jaber returned to the delivery room at approximately 6:45 or 6:50 p.m. when Ms. Kawache was "quite dilated." (Id. at 134.) At that time, the nurses began to prepare Ms. Kawache for delivery. (Id.) Ms. Kawache was placed into the lithotomy position, which entailed her lying on the delivery bed with her knees resting on top of stirrup pads so that her knees were at a ninety degree angle relative to her hips and torso. (Id. at 87-88, 366; see also Ex. A at D 36.) In this position, both Ms. Kawache's legs and the stirrup pads supporting her legs were covered by a sterile drape. (Tr. at 134-135, Ex. A at D 36.)

At approximately 7:00 p.m. the baby's head presented through the vaginal canal. (Tr. at 87.) At the moment that the baby's head presented, Dr. Jaber was standing between Ms. Kawache's legs, with her knees supported in the stirrup pads in the lithotomy position on either side of Dr. Jaber's shoulders. (Id. at 58, 88.) The delivery nurse was standing behind Dr. Jaber, and the resident, Dr. Rosenberg, was standing to Dr. Jaber's right. (Id. at 58.) As noted by Dr. Jaber in a delivery note completed roughly fifteen to twenty minutes after the birth, the infant's head presented in the right occiput anterior ("ROA") position.*fn7 (Id. at 89, 95-97; see also Ex. A at D 36.) In an ROA presentation, the baby's left shoulder is facing up, with the occiput, or back, of the baby's head closest to the mother's right side and the front of the baby's head facing the mother's left side. (Tr. at 47.)

Dr. Jaber testified that he had no specific recollection of Miriam Kawache's delivery, and accordingly, his testimony regarding the events of that day was based upon his review of the medical records. (Id. at 34.) Dr. Jaber also testified regarding his usual practice when he recognizes shoulder dystocia during a delivery. (Id. at 80.) Specifically, once he deduces that shoulder dystocia is occurring, it is Dr. Jaber's practice to direct the delivery team to perform the McRoberts maneuver and apply supra-pubic pressure. (Id.)

When the baby's head presented, Dr. Jaber testified that he placed his hands upon the baby's head but did not apply any traction whatsoever -- either upward or downward.*fn8 (Id. at 90, 93.) While his hands were on the baby's head, Dr. Jaber immediately recognized the so-called turtle sign because the baby's head appeared to retract into the vagina. (Id. at 89-90.) This sign indicated to Dr. Jaber that shoulder dystocia was potentially occurring. (Id.)

Upon recognition of potential shoulder dystocia, Dr. Jaber testified to following his typical procedure. Specifically, Dr. Jaber testified that when he saw the turtle sign, he asked for help from the delivery team to perform the McRoberts maneuver. (Id. at 90-91.) Because Ms. Kawache was already in the lithotomy position with her knees supported by stirrups, she was "practically already" in the McRoberts position. (Id. at 91.) Thus, accomplishing the McRoberts maneuver took only seconds and required merely "add[ing] more flexion to the [mother's] knees" by "push[ing] [them] back while [the legs were] still . . . in the stirrups . . . . towards the chest of the mother and a little bit outward." (Id. at 91.) While Ms. Kawache was in the McRoberts position, Dr. Jaber instructed the senior resident to apply supra-pubic pressure in an attempt to dislodge the baby's shoulder from under the mother's pubic bone. (Id. at 91-92.) While the senior resident ...

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