Citations
- 201 F. Supp. 3d 1190
Full opinion text
ORDER
HAYES, Judge
The matter before the Court is the Findings of Fact and Conclusions of Law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure. Plaintiffs bring this action for medical negligence against the United States of America pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b)(1), 2671-2680. On October 27, 2015, the Court held a nine-day bench trial, at which it heard testimony and received exhibits.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. Factual Background
A. Placement of Intrauterine Device
In April 2008, Mildred Veasley (“Veas-ley”) delivered her second child in Japan, where her husband Rodney Veasley was stationed as an active duty United States Marine. In or around June 2008, Rodney Veasley’s duty station was changed from Japan to Camp Pendleton, California.
On July 31, 2008, Veasley had an appointment at the Naval Hospital Camp Pendleton (“NHCP”) with Dr. Jennifer Almy, a NHCP family practice physician. During the month before the appointment, Veasley testified that she and Rodney were using condoms to avoid becoming pregnant. At her appointment, Veasley told the health care providers that her last menstrual period (“LMP”) began on July 16, 2008. Dr. Almy counseled Veasley on various types of birth control and Veasley decided that she wanted to have a Mirena IUD inserted. Veasley testified that she scheduled an appointment to have an IUD inserted. Veasley testified that Dr. Almy told her to avoid sexual relations for two weeks prior to the IUD placement. Veas-ley testified that she followed those instruction and that the last time she had sexual intercourse was “the day or two before the window that [she] was not suppose to have intercourse.” (ECF No. 102 at 7:4-17). Veasley testified that Dr. Almy told her that an IUD should not be inserted if she was pregnant.
At trial, Dr. Almy testified that she had no recollection of Veasley and could only testify.regarding the content of her notes and her normal practice. Dr. Almy testified that she would tell patients “to be abstinent or use condoms until the actual appointment for the IUD” during pre-counseling. (ECF No. 92 at 56:16-20).
On September 9, 2008, Veasley returned to NHCP to have the IUD inserted. During that appointment, Veasley was not menstruating and she reported that her LMP began on August 12, 2008. Veasley testified that she thought that she might be pregnant at that appointment. Veasley testified that during that appointment no one asked her about her sexual activity between her appointment on July 31, 2008 and the current appointment.
Before the IUD insertion, Veasley took a One Step urine pregnancy test and the results were negative. Veasley testified that based on that pregnancy test, she believed she was not pregnant. Dr. Almy then inserted the IUD. Dr. Almy testified that she “would have been reasonably ensured that a negative [urine pregnancy test] would have been a true negative.” (ECF No. 92 at 48:16-19). Dr. Almy explained that, “for Ms. Veasley, I had looked at her prior cycles, and she had been 27 days approximate, so on day 29 when she had come to see me, I would have expected that if there was a pregnancy there would have been a positive [urine pregnancy test], and there was a negative [urine pregnancy test].” Id. at 57:3-13. Dr. Almy testified that she was aware that the manufacturer’s recommendation as set forth in the Mirena IUD package insert dated July 31, 2008, provided that “Mirena is inserted.. .into the uterine cavity within 7 days of the onset of menstruation.... ” Id. at 29:5-7. Dr. Almy testified that it was her custom and practice to “schedule [a patient’s] appointment to be at the expected time of the [menstrual] cycle starting.” Id. at 56:10-11. Dr. Almy testified that the possibility of insertion of an IUD in the presence of an existing undetermined pregnancy is reduced if insertion is performed within seven days of the onset of a menstrual period.
Dr. Almy testified that she was aware that pregnancy or suspicion of pregnancy was an absolute contraindication to' inserting the Mirena IUD when she inserted the IUD. Dr. Almy testified that she did not ask Veasley about her sexual activity between the previous appointment and the current appointment before inserting the IUD:
Q. [Plaintiffs’ counsel]: Dr. Almy, wouldn’t the easiest way to find that out in each and every 'case so that you could be as certain as possible be to ask the patient as part of your routine history, when was the last time you [had] sex? And then the follow-up question to that would be, did you use any protection?
A. [Dr. Almy]: I would say in my pre-counseling that would have been done.
Q. I am not asking about your pre-counseling. I am asking about your custom and practice as of the date of insertion. Wouldn’t the safest, practice for you to. have been to ask the patient pointblank, when was the last time you had sex, and if so, did you use protection?
. A. I did not ask those questions, but I do ask prior to insertion if they have any questions or concerns prior to starting, and I consent them, and that is part of my practice.
Q. [A]s a physician you would have believed it was medically reasonable to ask Mrs. Veasley on September 9th when she had last had sex and did they use protection; correct?
A. No, because I would have — as I stated previously, I would have been — I would have told them to have been using something because they did not desire to have a pregnancy.
Id. at 51:3-16; 52:8-14. In response to a hypothetical scenario of a patient who was scheduled to have an IUD inserted on September 9, who stated that her LMP was August 12, and that she had sexual intercourse on August 23 or 24, Dr. Almy testified that she “would have postponed” the IUD insertion. Id. at 50:23-51:16.
After the IUD insertion, Dr. Almy told Veasley how to vaginally check for the strings attached to the IUD to make sure it was properly placed, and that she should check the strings periodically. Approximately two weeks after the IUD was inserted, Veasley checked to see if she could feel the strings from her IUD, but she could not feel them.
B. Medical Treatment During the Early Pregnancy
On October 30, 2008, Veasley made an appointment at NHCP because she could not feel her IUD strings and her stomach was getting bigger. On October 31, 2008, Veasley was seen by Dr. Chrisanna Johnson who determined that Veasley was pregnant. Dr. Johnson did not see any IUD strings coming from Veasley’s cervix and did not see an IUD in Veasley’s uterus during an ultrasound examination. Dr. Johnson told Veasley that the IUD could have been expelled, but that it may still be in her uterus. Dr. Johnson told Veasley that regardless of whether the IUD was still present, no attempt to remove the IUD should be made because of the risk of miscarriage.
On November 12, 2008, Veasley was seen by Family Practitioner Dr. Elizabeth Beazley at NHCP for her initial obstetrical visit. Veasley told Dr. Beazley that her LMP began on August 15, 2008, which was recorded in her medical records. Dr. Beazley indicated on Veasley’s “Obstetrical Problem Sheet” that Veasley had a possibly retained IUD which should be monitored. On November 24, 2008, Veasley received an obstetrical ultrasound to monitor fetal growth and to determine if the IUD was present. Attending radiologist Dr. Harold Nadel reported that no IUD was visualized, and that the fetus was without obvious anomaly at an estimated gestational age of fifteen weeks and one day.
C.Treatment of Mildred Veasley’s Cramping and Vaginal Bleeding
On January 11, 2009, at approximately 3:00 a.m., Veasley went to the NHCP’s Labor and Delivery Unit (“LDU”) complaining of cramping that began the previous evening. During that visit, Veasley was seen by Dr. Ivorique Hambrick, a family practice resident. Veasley’s examination revealed that the “external [cervical] os appealed] closed.” (Ex. 10 at 2). No bleeding or contractions were reported or observed. Dr. Hambrick wrote an assessment and plan in the medical record which Dr. Beazley edited. At the conclusion of the visit, Veasley was discharged with precautions regarding the warnings signs of preterm labor. Veasley was told to follow up with Dr. Beazley in four weeks, or to return to the LDU sooner if there were problems.
On January 12, 2009, at approximately 3:00 a.m., Veasley returned to the LDU complaining of episodes of vaginal bleeding and cramping. She was seen by Dr. Darin Rolfe, a family practice resident. The attending physician, Dr. David Lifset, an obstetrician, signed off on the note Dr. Rolfe wrote in the medical record. The note stated that fetal monitoring revealed uterine contractions, but that the cervix remained “closed” and “long” after several hours of observation. (Exhibit 12 at 4). The doctors ruled out infection, or emergent placental problems such as placenta pre-via or placental abruption. The note stated that Veasley “has a history of having had an IUD placed and found out that she was pregnant when she was 3 months along.” Id. at 5. The note stated that Veas-ley “was given strict precaution to return to [the LDU] or the [emergency department] for any future [vaginal] bleeding or pelvic cramping. [Preterm labor] precautions also given.” Id. at 4. At the conclusion of the visit, Veasley was discharged.
On January 12, 2009 at approximately 6:28 p.m., Veasley called the LDU and stated that she had experienced cramping for a few hours, which were resolved by a gush of blood. Veasley spoke to Nurse Gillian Alvarez, who noted in the medical record that she discussed the case with Dr. Nicole Sharkey, an obstetrician, and Certified Nurse Midwife Bridget Moran. Alvarez instructed Veasley to call if there was any further bleeding or worsening in the cramping, and to rest and hydrate.
Approximately four hours later, at around 10:08 p.m., Veasley presented to the LDU complaining of vaginal bleeding and lower abdominal cramping. Veasley stated that around 7:00 p.m., she had experienced bleeding. The medical records indicate that Veasley reported that her cramping decreased from 8 out of 10 on a pain scale to 5-7 out of 10 after the bleeding episode at around 7:00 p.m. Upon arriving at the LDU, Veasley reported that her cramping had “resolved” and that she had no current bleeding. ,(Ex. 14 at 2). During the visit, Veasley was seen by Dr. Regina Chinsio-Kwong, a family practice resident. A pelvic examination revealed bright red blood oozing from the cervical os and pooling of blood in the posterior fornix. The cervical os appeared closed. A tocometer showed uterine contractions every 5 to 8 minutes. Dr. Sharkey performed a tran-svaginal ultrasound on Veasley and the medical record notes that her “placenta appeared clear of the os vs low lying.” Id. Veasley was monitored for several hours. She was discharged, she was sent home with instructions that included rest, pelvic rest, and a recommended ultrasound at 24-25 weeks gestational age. Dr. Chinsio-Kwong wrote a note in the medical record that was signed off by C.N.M. Moran.
Ten days later, on'January 22, 2009, an obstetric ultrasound performed in Camp Pendleton’s Radiology Department showed Veasley’s placenta was clear of the cervical os and that her cervix was closed.
On January 23, 2009, Veasley had an appointment with Dr. Beazley at the NHCP family practice clinic for follow up from her visits to the LDU. Veasley reported vaginal bleeding sufficient to cause a streak of blood on one pad a day with associated cramping. The medical records show that Veasley’s examination revealed a long and closed cervical os. After determining that there was no evidence of placenta previa, placenta abruption, infection, or preterm labor, and consulting with Dr, Ehle, an obstetrician, Dr. Beazley instructed Veasley to remain on bed rest with pelvic rest for the remainder of the pregnancy. Veasley was told to return to the clinic for medical evaluation if her bleeding or cramping increased. Dr. Beazley’s plan for Veasley included a consultation with an obstetrician once Veasley reached the third trimester for evaluation of repeat Cesarean section; however, Dr. Beazley would continue managing Veasley’s pregnancy until then.
On January 25, 2009 at approximately 11:00 p.m., Veasley returned to LDU complaining of cramping, contractions, vaginal bleeding for two days, and passing two blood clots. During the visit she was seen by Dr. Mark Lund, a family practice resident. A pelvic examination revealed a small drip of blood from the cervical os and bright red blood from the vagina. The exam showed that the cervix was long and closed. The tocometer demonstrated irregular uterine contractions. The medical note from the visit stated, “The spotting is normal the clot was not.” Id. at 2. During the same visit, at approximately 1:13 a.m. on January 26, 2009, Dr. Lund noted that the estimated gestational age was 23 weeks and 2 days, based on her LMP, and consistent with the date from the first trimester ultrasound. The note indicated that there was “continued uterine irritability.” Id. at 3. The note stated, “Previable if [greater than] 24 [weeks] would consider then Steroids, [antibiotics]? And transfer but at 23 weeks watchful waiting.” Id. The note stated that Veasley was instructed to remain on bed rest, to hydrate, to follow up in two days as scheduled, and to return if she experienced worsening contractions, more bleeding, or a gush of fluid. At the end of this visit, Veasley was discharged.
On January 28, 2009, at approximately 9:00 a.m., Veasley returned to the LDU stating that she had been experiencing more painful contractions over the last three days and that her vaginal bleeding had increased so that she was leaving streaks on two pads per day. At trial, Veasley testified that on January 28, 2009, when she went to the LDU, she was having severe contractions and pain. During the visit, she was seen by Dr. Todd Quack-enbush, a family practice resident. At approximately 10:30 a.m., the tocometer revealed contractions approximately every three to five minutes. The estimated gestational age of the pregnancy was 23 weeks and 4 days. Dr. Lifset, the attending physician, examined Veasley and found bleeding from her cervical os and that her cervix appeared long and closed. The note states that on a pain scale, Veasley’s pain was ten out of ten, “[t]otally [disabling.” (Ex. 17 at 1). At approximately, 12:30 p.m., Dr. Lifset noted that the tocometer showed contractions every five minutes. Dr. Lifset’s note states, in part,
Follow up: 1 week(s) in the OB clinic or sooner if there are problems... .Pt does have IUD left in situ — perhaps this is leading to bleeding and contractions. With no [evidence of] abruptio placentae and no [evidence of preterm labor] (no cervical dilation [over] multiple visits)— at this time will send patient home. Continue bedrest. Return for increase or change in bleeding or contraction pattern.
Id. at 3. At the conclusion of the visit, at approximately 12:50 p.m., Veasley was discharged.
D. Events After Veasley’s Last Visit to the LDU
At trial, Veasley testified that from the time she went home from the LDU, on January 28, 2009 at approximately 12:50 p.m., until the morning Brianna was born, on January 30, 2009 at approximately 8:15 а.m., her pain was less severe and that she was managing the pain with Tylenol. Veas-ley testified that on January 29, 2009, she was using approximately three pads for the vaginal bleeding and that those pads were full of blood, not- just streaks of blood.
Levera Veasley, Rodney Veasley’s mother testified by deposition that after midnight on January 30, 2009, she went into Rodney and Mildred Veasley’s bedroom because a light was on. Levera Veasley testified that Mildred Veasley told her “that she was .in a lot of pain and the pains were getting worse and she would scream out every now and then because she was in a lot of pain.” (Ex. 214 at 37:26-38:2). Levera Veasley testified that Rodney Veasley called the hospital, but that she did not overhear the conversation.
Veasley testified that when she awoke on January 30, 2009, she was in “severe pain” and that she “couldn’t really move or do much.” (EOF No. 102 at 15:1-4). Veas-ley testified that she had not had pain that severe up until that point and so she called LDU that morning and “asked was there anything stronger that I could take or anything they could do for me.” Id. at 15:14-18. Veasley testified that the LDU told her that there was “nothing that they could really do or give me, to continue to take the Tylenol, but if I felt like I need to come in...to come in,” Id. at 15:18-21.
Veasley testified that after she got off the phone, she was in “severe pain” that became “unbearable” and that she “felt the need to push.” Id. at 16:11-15. At approximately 8:15 a.m., Brianna Veasley was born. Ronald Veasley called 911. The 911 operator told Ronald Veasley how to attend to Brianna until the ambulance arrived. At approximately 8:24 a.m., an air ambulance arrived near the Veasley home and transported Brianna to Rady Children’s Hospital San Diego (“Rady”). Veas-ley was transported to NHCP where two large clots and the IUD were expelled. Pathologic examination determined the IUD was an intact Mirena IUD. Pathologic examination also determined that Veas-ley’s placenta had maternal stage two and fetal stage one acute chorioamnionitis.
E. Brianna’s Condition
At the time of her birth, Brianna’s estimated gestational age was 23 weeks and 6 days, measured by an LMP of August 15, 2008. Brianna weighed one pound, eight ounces. The World Health Organization (“WHO”) defines extreme prematurity as birth before 28 weeks gestational age. The WHO defines extremely low birth weight as less than 1000 grams, approximately 2.2 pounds. Brianna met both of these definitions.
As a result of her extreme prematurity and low birth weight, Brianna was hospitalized at Rady from January 30, 2009 through March 9, 2009. She was then transferred to Naval Medical Center San Diego where she was hospitalized until June 3, 2009. On June 9, 2009, Brianna was readmitted to Naval Medical Center and then transferred to Rady oh Juné 10, 2009, where she stayed until August 20, 2009.
Brianna’s extreme prematurity and extreme low birth weight were substantial factors in causing her to suffer from medical problems early in life including a cerebellar hemorrhage, respiratory distress syndrome, pneumonia(s), a patent ductus arteriosus, sepsis, endocarditis, jaundice, apnea of prematurity, anemia of prematurity, retinopathy of prematurity, and gas-troesophageal reflux disease. Brianna required the placement of a gastrostomy tube in August 2009 which remained in place until April 2011, and ophthalmologic surgery. Brianna’s “extreme prematurity was a substantial factor in causing her severe to profound mental retardation” that more likely than not will continue into the future. (ECF No. 48 at 7). “As a result of her severe to profound mental retardation, Brianna Veasley will more likely than not never be able to be competitively employed” and will be unable to live independently. Id. at 8. The amount of Brianna Veasley’s claim for past medical expenses, exclusive of her claim for the care provided by her family, is the amount of her MediCal lien.
II. Medical Negligence Law
The Federal Tort Claims Act (“FTCA”) provides that the United States may be held liable for “personal injury... caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1). In a case brought under the FTCA, liability is determined in accordance with the substantive law of the state where the alleged negligence occurred. See 28 U.S.C. § 1346(b); Carlson v. Green, 446 U.S. 14, 23, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980).
To establish a claim for medical negligence in California, plaintiffs must prove all of the following elements by a preponderance of the evidence: “(1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional’s negligence.” Hanson v. Grode, 76 Cal.App.4th 601, 90 Cal. Rptr.2d 396, 400 (1999); see also Judicial Council of California Civil Jury Instruction (“CACI”) 400; CACI 500. The parties do not dispute that Defendant owed Plaintiffs a duty of care. See Pretrial Order (ECF No. 48).
The standard of care in a medical malpractice case requires “that physicians and surgeons exercise in diagnosis and treatment that reasonable degree of skill, knowledge, and care ordinarily possessed and exercised by members of the medical profession under similar circumstances.” Mann v. Cracchiolo, 38 Cal.3d 18, 210 Cal.Rptr. 762, 694 P.2d 1134, 1143 (1985); see also CACI 502. “Because the standard of care in a medical malpractice case is a matter peculiarly within the knowledge of experts, expert testimony is required to prove or disprove that the defendant performed in accordance with the standard of care unless the negligence is obvious to a layperson.” Johnson v. Superior Court, 143 Cal.App.4th 297, 49 Cal.Rptr.3d 52, 58 (2006) (internal citations omitted); see also CACI 501.
“The existing standard does not fault a medical professional for choosing among different methods that have been approved by the profession even if the choice later turns out to have been the wrong selection or not favored by other members of the profession.” N.N.V. v. Am. Assn, of Blood Banks, 75 Cal.App.4th 1358, 89 Cal.Rptr.2d 885, 903 (1999); see also CACI 505. “Mere error of judgment, in the absence of a want of reasonable care and skill in the application of his medical learning to the case presented, will not render a doctor responsible for untoward consequences in the treatment of his patient, or ‘required to guarantee results.’” Huffman v. Lindquist, 37 Cal.2d 465, 234 P.2d 34, 40 (1951) (internal citations omitted).
In a personal injury action, causation must be proven within a reasonable medical probability based upon competent expert testimony. Mere possibility alone is insufficient to establish a prima facie case.... There can be many possible ‘causes,’ indeed, an infinite number of circumstances which can produce an injury or disease. A possible cause only becomes ‘probable’ when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action.
Bromme v. Pavitt, 5 Cal.App.4th 1487, 7 Cal.Rptr.2d 608, 614 (1992),
III. Standard of Care
A. The IUD insertion
i. Expert Testimony
At trial, the parties’ experts agreed that the standard of care required that a healthcare provider reasonably rule out pregnancy before inserting an IUD. (Tr. Dr. Phillips ECF No. 107 at 22:5-8; Tr. Dr. Kingston ECF No. 93 at 13:22-14:4).
Plaintiffs obstetrical expert, Dr. Albert Phillips, testified that Dr. Almy “breached the standard of care by placing the IUD in a portion of the patient’s cycle when she could not have been reasonably certain that there was not a pregnancy.” (ECF No. 107 at 29:24-30:2).
Q. [Plaintiffs’ counsel]: As of 2008, did the standard of practice require a physician to take all steps necessary to reasonably rule out pregnancy before inserting an IUD?
A. [Dr. Phillips]: Yes, absolutely. The foremost thing when you’re placing an IUD is to be relatively certain a patient is not pregnant. And for that reason, the physician has to be keenly aware of the woman’s current status so that they don’t put an IUD in a patient who is pregnant or could potentially be pregnant.
Q. The information that we discussed a moment ago about [Veasley’s] April 2008 childbirth, what, if anything, was significant about that fact with regard to the timing of insertion of the IUD that Mrs. Veasley wanted to have placed?
A. Well, the important part of this history is that the patient is not — it is not clear exactly how regularly the patient’s ovulation is. So for that reason, this patient should never have an IUD inserted until she is on her menstrual cycle or immediately following her menstrual cycle, within seven days of the flow. Because you don’t know exactly during the cycle when she would be ovulating because of the close proximity of her last delivery. But you would never want to place an IUD in a woman who is in the second half of her month, when she potentially had ovulated, and not until the period occurs so that you’re certain that she didn’t get pregnant during that cycle.
Id. at 22:5-23:3.
Dr. Phillips explained that “ovulation occurs in a woman, who’s 28 days, on the 14th day of her cycle.” Id. at 24:5-9. Dr. Phillips explained that the only day a woman can get pregnant is the day that she ovulates. Dr. Phillips stated that ovulation “begins the luteal phase,” which is the time from the middle of a woman’s menstrual cycle to the time of menstruation. Id. at 24:2-4. Dr. Phillips stated that the during the luteal phase the body produces progesterone, “which is a by product of the ovulation.” Id. at 24:5-9. Dr. Phillips stated that within three to four days after implantation, which occurs “approximately seven days after conception,” the hormone beta hCG “gets to a level that would be able to be found on a urine pregnancy test.” Id. at 24:15-18.
Dr. Phillips testified that “classically” women have a 28-day menstrual cycle, but that women can fall “two standard deviations on either side of that 28 would go from a range of 21 days to 40 days... so women [ ] don’t always ovulate on the 14th day.” Id. 24:23-25:2. Dr. Phillips testified that “sperm can live up to seven days.” Id. at 25:5. Dr. Phillips testified that even though “there is only one day when [a woman] can get pregnant, the day she ovulates,” because of the extended life of sperm, a woman may get pregnant even though she had not had intercourse for several days before her date of ovulation. Id. at 25:16-26:8.
Dr. Phillips further testified that the standard of care for a patient that is not on birth control is to insert an IUD “during the [menstruation] cycle or immediately within seven days of the cycle.” Id. at 30:9-24. Dr. Phillips testified that his opinion was corroborated by the package insert of the Mirena IUD, which stated that an IUD should be inserted within seven days of the onset of menstruation.
Dr. Phillips testified that if Veasley had a “consistent ovulation” and was on a 27-or 28-day menstrual cycle, on the date of the IUD insertion with Dr. Almy, Veasley’s menstrual period would have been a day or two late. Id. at 27. Dr. Phillips noted that it was unclear when Veasley would be ovulating “because of the close proximity of her last delivery.” Id. at 22:22-23. Dr. Phillips explained that “women don’t always ovulate exactly the same day of their cycle, especially right after having a child.” Id. at 27:20-21.
Dr. Phillips testified that a negative urine pregnancy test did not reasonably rule out pregnancy in this case because there is “approximately 10 to 11 days” after conception that a woman will still get a negative urine pregnancy test. Id. at 29:7-8; 28:8-10. Dr. Phillips stated, “for [Dr. Almy] to rely on a negative pregnancy test, and the patient is still in the luteal phase and has not yet had her menstrual cycle is where I have concerns in [Dr. Almy’s] management.” Id. at 28:11-13. Dr. Phillips testified that a patient such as Veasley, who is not on any birth control, the “[standard of care required that the [IUD] insertion be occurring during the cycle or immediately within seven days of the cycle” because at that point a physician “can be reasonably certain that they’re not pregnant.” Id. at 30:20-31:7.
Defendant’s obstetrical expert, Dr. Jessica Kingston, testified that Dr. Almy reasonably excluded pregnancy before inserting the IUD. Dr. Kingston stated,
She took menstrual history. She documented regular menstrual cycle. She was aware of what she had previously said to the patient at the previsit that occurred at the end of July, that she instructed her to abstain or use condoms until the IUD can be inserted.
She documented the first day of Mrs. Veasley’s last menstrual period at the time of the insertion visit. That was August 12th, and she performed a urine pregnancy test, and that urine pregnancy test was negative.
(EOF No. 93 at 24:6-14).
Dr. Kingston testified that the standard of care allows an IUD to be placed at any time of a woman’s menstrual cycle as long as pregnancy can be reasonably excluded. Dr. Kingston explained that “roughly 12 to 24 hours” before ovulation occurs, a woman’s luteinizing hormone (“LH”) reaches its maximum blood level, known as the “LH peak.” Id. at 27:12-15. Dr. Kingston testified that the LH peak is the best indicator for when hCG levels will be high enough in a woman to trigger a positive urine pregnancy test because the LH peak can be measured clinically, with a blood test, as opposed to the date of ovulation which cannot be measured precisely. Dr. Kingston stated that “implantation is known to occur seven days after [ovulation,] or six to seven days after the LH peak.” Id. at 28:21-22.
Dr. Kingston explained that a urine pregnancy test with a sensitivity of 25 international units per liter (“IU/1”) “may become positive.. .10 to 12 days after the LH peak_” Id. at 29:18-22. Dr. Kingston testified that
[a] urine pregnancy test is more reliable the further along a woman is in her luteal phase. If she is in her early luteal phase or prior to implantation, you wouldn’t rely on that urine pregnancy test. You might look at other factors. If a woman is in her late luteal phase or the last few days of her luteal phase, that urine pregnancy test is much more reliable.
Id. at 65:18-24. Dr. Kingston testified that “with the urine pregnancy test that has a sensitivity of 25, the urine may reveal a positive result as early as three to four days after implantation... [and] by seven days [after implantation], 98 percent will be positive.” Id. at 66:13-19. Dr. Kingston testified that seven days after implantation a doctor acting within the standard of care could be confident in the accuracy of the pregnancy test.
A. [Dr. Kingston]: Ms. Veasley on September 9th was on day 29. Dr. Almy could reasonably conclude that she has an average cycle length, and she would.. .be more than 12 days from an expected LH peak, and that the urine pregnancy test, a negative result means to Dr. Almy that she is not pregnant.
Q. [Defendant’s counsel]: [I]f Dr. Almy assumed that this might be a up to a 30-day cycle, when would she have— the standard of care required her to determine ovulation would likely occur?
A. [I]f the cycle length is 30 days, the second half of the cycle or known as the luteal phase is a constant. It is 14 days, so that would add two days, and you would say that ovulation would occur on approximately day 16.
Q. When would the LH peak occur?
A. Around day 15.
Q. And 12 to 13 days after day 15 would be what day of the cycle?
A. Would he day.. ,27 to 28....
Id. at 29:23-30:3. Dr. Kingston testified that based on the timing of the urine pregnancy test in this case, Dr. Almy could reasonably rely on the test to rule out pregnancy in Veasley.
Dr. Kingston testified that a doctor would not use the pregnancy test results “alone to make a clinical decision about whether to place the IUD.” Id. at 66:23-25. Dr. Kingston testified that in addition to the pregnancy test results, a doctor would use the date of the last menstrual period and “information as to whether Mrs. Veas-ley had been using birth control.Id. at 67:1-10. Dr. Kingston testified that the standard of care required that Dr. Almy be aware that on September 9, Veasley might have been pregnant. Dr. Kingston testified that “the standard of care required that Dr. Almy obtain [a sexual] history either previously or at that visit if that was the first time she saw her.” Id. at 53:6-10. Dr. Kingston stated,
Q. [Plaintiffs’ counsel]: Doctor, what I am talking about is that if Dr. Almy is evaluating Mrs. Veasley for possible pregnancy on September 9th, she needs to consider Mrs. Veasley’s sexual history between the last visit and September 9th; correct?
A. [Dr. Kingston]: Yes, but she also takes into account what had occurred on her prior visit and her prior knowledge of the patient’s history. You would not take that information in isolation to come to a conclusion.
Q. One of the things that Dr. Almy was required by the standard of care to consider on September 9th, 2008, was Mrs. Veasley’s sexual history between the last visit and September 9th; correct?
A. That would be part of the entire history, yes.
Id. at 56:7-19. Dr. Kingston testified,
Q. [Plaintiffs’ counsel]: If the patient gives a history of having unprotected sex at a time when she may have been close to ovulation, that would be important information to Dr. Almy in considering whether to go ahead with the IUD insertion that day; correct?
A. [Dr. Kingston]: Correct.
Id. at 61:9-13.
ii. Discussion
Plaintiffs contend that Dr. Almy acted below the standard of care because she failed to reasonably rule out pregnancy before inserting the Mirena IUD on September 9, 2008. Plaintiffs contend that Dr. Alm/s insertion of the IUD, twenty-nine days after the start of Veasley’s LMP, was contrary to Mirena manufacturer’s recommendation, the NHCP Family Medicine Department Policy, and Dr. Almy’s own custom and practice. Plaintiffs contend that it was too early in the pregnancy for Dr. Almy to rely on the negative urine pregnancy test to reasonably rule out pregnancy. Plaintiffs contend that “the standard of practice required Dr. Almy to obtain a sexual history from Veasley” prior to inserting the IUD. (EOF No. 108 at 21).
Defendant contends that Dr. Almy did not violate the standard of care because Dr. Almy took steps to reasonably rule out pregnancy similar to those steps taken by other reasonably careful healthcare providers. Defendant contends that “many reasonably careful healthcare providers do not limit themselves to placing IUDs in women like Mildred Veasley to the first seven days of their menstrual cycle.” (EOF No. Ill at 27). Defendant contends that the standard of care allowed Dr. Almy to rely on the result of the urine pregnancy test to reasonably rule out pregnancy. Defendant contends that at the insertion appointment the standard of care did not require Dr. Almy to ask Veasley about her sexual activity between her appointment on July 31, 2008 and the appointment on September 9,2008.
In this case, the parties’ experts agree that the standard of care required that Dr. Almy reasonably rule out .pregnancy before inserting an IUD. Dr. Almy testified that she reasonably ruled out pregnancy at the September 9, 2008 appointment by giving Veasley a urine pregnancy test. Dr. Almy testified that at the time of the appointment, Veasley “would have been 29 days, so I would have been reasonably ensured that a negative [pregnancy test] would have been a true negative.” (ECF No. 92 at 48:16-19). Dr. Almy further testified that because she “counseled [Veasley] to use condoms or abstain from sex” at the initial visit on July 31, 2008, Dr. Almy reasonably concluded that Veasley “was following the counseling that [she] had set in motion.” Id. at 50:2-10. Dr. Almy testified that it was her custom and practice to “schedule [a patient’s] appointment to be at the expected time of the [menstrual] cycle starting” because “if she was bleeding, then I would be reasonably ensured that she was on her cycle.” (ECF No. 92 at 56:10-11).
At trial, both parties’ experts testified that during the early stages of a pregnancy, a woman will not have produced enough hCG hormone to result in a positive urine pregnancy test. Dr. Phillips explained that the standard of care when inserting an IUD in a patient who is not on birth control, such as Veasley, requires that the IUD be inserted “during the [menstrual] cycle or immediately within seven day of the cycle” because “we know physiologically that...is the time of the cycle where the mother could not have gotten pregnant or is not pregnant currently.” (ECF No. 107 at 30:9-31:7). Dr. Phillips testified that a doctor “would never want to place an IUD in a woman who is in the second half of her month, when she potentially had ovulated, and not until the period occurs so that you’re certain that she didn’t get pregnant during that cycle.” Id. at 22:24-23:3. Dr. Phillips testified that in this case, a negative, result on the urine pregnancy test did not reasonably rule out pregnancy. Dr. Phillips explained that “there is going to be approximately 10 to 11 days” when a. woman “has had a conception and still will get a negative pregnancy test.” Id. at 28:7-10.
Dr. Kingston testified that the standard of care allows an IUD to be placed at any time of a woman’s menstrual cycle as long as pregnancy can be reasonably excluded. Dr. Kingston testified that implantation is known to occur seven days after ovulation and that seven days after implantation “98 percent” of urine pregnancy tests with a sensitivity of 25 IU/1 “would be positive.” (ECF No. 93 at 65: 1-4). Dr. Kingston testified,
Q. [Plaintiffs’ counsel]: Doctor, seven days after implantation is when a doctor actfing] within the standard of care could consider a negative result to be reliable; correct?
A. [Dr. Kingston]: [A] physician wouldn’t ' take that in isolation. They would put it into context with a patient’s menstrual history, with her contraceptive history, and where she happens to be in her cycle.
A urine pregnancy test is more reliable the further along a woman is in her luteal phase. If she is in her early luteal phase or prior to implantation, you wouldn’t rely on the urine pregnancy test. You might look at other factors.
If a woman is in her late luteal phase or the last few days of her luteal phase, that urine pregnancy test is much more reliable.
Id, at 65:5-24. Dr. Kingston testified that, assuming Veasley was on a 28 day cycle, Dr. Almy could “reasonably conclude that.. .the urine pregnancy test result can be relied upon because if Ms. Veasley was, in fact, pregnant, that urine pregnancy test should have been positive at that particular time in her cycle on day 29.” Id. at 29:24-30:3. However, Dr. Kingston also testified that a patient’s history of sexual intercourse close to the time of ovulation would have been important information for Dr. Almy to consider when deciding whether to insert the IUD. Specifically, Dr. Kingston testified,
Q. [Plaintiffs’ counsel]: When you were referring to what that patient has done prior to that visit in terms of. her sexual activity and contraception, you are referring to the insertion visit of September 9th; correct?
A. [Dr. Kingston]: Correct, but when you see a patient on that visit, you also take into account the information that you would have obtained from her in her history taking [sic] prior to that visit.
Q. Doctor, what I am talking about is that if Dr. Almy is evaluating Mrs. Veasley for possible pregnancy on September 9th, she needs to consider Mrs. Veasley’s sexual history between the last visit and September 9th; correct?
A. Yes, but she also takes into account what had occurred on the prior visit and her prior knowledge of the patient’s history. You would not take that information in isolation to come to a conclusion.
Q. One of the things that Dr. Almy was required by the standard of care to consider on September 9th, 2008, was Mrs. Veasley’s sexual history between the last visit and September 9th; correct?
A. That would be part of the entire history, yes.
Id. at 55:25-56:19.
In this case, Veasley was not menstruating at the time of the September 9, 2008 appointment. Dr. Phillips testified that if Veasley had a “consistent ovulation” and was on a 27- or 28-day menstrual cycle, on September 9, Veasley’s menstrual period would have been a day or two late. (EOF No. 107 at 27). Veasley testified that she had sexual intercourse on August 23 or 24 and that she thought she might be pregnant at the appointment to insert the IUD. Veasley testified that at her insertion appointment no one asked her about her sexual activity between her appointment on July 31, 2008 and the appointment on September 9, 2008. Veasley was given a urine pregnancy test, and the test came back negative. Dr. Almy then inserted the IUD.
The parties’ experts agreed that a urine pregnancy test is not reliable at the early stages of pregnancy. The parties’ experts agreed that a urine pregnancy test with a sensitivity of 25 international units per liter could begin to detect a pregnancy approximately three to four days after implantation. Dr. Kingston testified that seven days after implantation a urine pregnancy test would have a 98% accuracy rate and a doctor acting within the standard of care could rely on that test. Dr. Kingston testified that “the doctor doesn’t use that information alone to make a clinical decision about whether to place the IUD.” (ECF No. 93 at 66). Dr. Kingston testified that Dr. .Almy needed to take into account Veasley’s “entire history,” including Veasley’s sexual history between the last visit and the September 9 visit. Dr. Phillips testified that a doctor “would never want to place an IUD in a woman who is in the second half of her month, when she potentially had ovulated,” and not started her menstrual cycle because she may be pregnant. (ECF No. 107 at 22-23). Dr. Phillips testified that a negative urine pregnancy test did not reasonably rule out pregnancy in Veasley because she may not have been producing “enough hCG levels so that it could be picked upon the urine test.” Id. at 29.
The Court finds that the standard of care required Dr. Almy to reasonably rule out pregnancy. The. Court finds that based on the testimony of the parties’ experts regarding Veasley’s menstrual cycle and the accuracy of urine pregnancy tests at the early stages of pregnancy, Dr. Almy could not have reasonably relied on a negative urine pregnancy test to rule out pregnancy on September 9. The Court concludes that under the facts of this case, Dr. Almy failed to reasonably rale out pregnancy by relying upon the negative urine pregnancy test without considering Veasley’s “entire history,” including her sexual activity between her appointment on July 31, 2008 and the appointment on September 9, 2008. See ECF No. 93 at 56:19. The Court concludes that Plaintiffs have met their burden of showing by a preponderance of the evidence to prove that Dr. Almy breached the standard of care by inserting the IUD because Dr. Almy had not reasonably ruled out pregnancy.
B. NHCP Personnel and the Hospital Visits in January 2009
i. Expert Testimony
Plaintiffs’ expert, Dr. Phillips, testified that the NHCP personnel violated the standard of care several times when Veas-ley went to the hospital in January 2009. Dr. Phillips testified that the NHCP personnel first breached the standard of care when they sent Veasley home on January 13, 2009 after she went to the LDU on January 12 with complaints of vaginal bleeding and cramping. Dr. Phillips testified that at that time the standard of care “required that [Veasley] be admitted to the hospital and to be given medications that would stop [her] contractions.” (ECF No. 107 at 64:7-9).
Dr. Phillips testified that at Veasley’s follow up appointment on January 23, 2009, the standard of care required that Dr. Beazley recognize that Veasley’s bleeding was caused by the retained IUD. Referring to Veasley’s health record from that visit, Exhibit 11, Dr. Phillips testified that Veasley’s risk level should not have been listed as “uncomplicated” because a pregnancy with a retained IUD • is “the most complicated” pregnancy a woman could have. Id. at 64:13-65:4. Dr. Phillips emphasized that prior to the visit on January 23, “no one had ever considered that [the retained IUD] is the explanation for why [Veasley] had been bleeding” even though that information was on the problem list in Veasley’s medical records. Id. at 67:6-14. Dr. Phillips testified that the standard of care required Dr. Beazley to hospitalize Veasley on January 23rd so that she could be monitored. Dr. Phillips testified, “it appears that [Dr. Beazley] had no — not no knowledge, but no assessment that this was a higher risk situation by virtue of the fact that [Dr. Beazley] didn’t believe these things needed more careful treatment.” Id. at 69:16-21.
When asked about Veasley’s visit to the LDU on late evening January 25, Dr. Phillips testified,
Q. [Plaintiffs’ counsel]: [T]he assessment and plan from Dr. Lund, he indicates that there is no change in cervix, no clinical evidence of abruption, continued uterine irritability. Do you see that?
A. [Dr. Phillips]: I do.
Q. And then he states, “pre-viable if greater than 24 weeks, would then consider steroids, possibly antibiotics, and transfer, but at 23 weeks, watchful waiting.” And then, “bed rest, hydration, follow up in two days as scheduled. Preterm predations given. Return if worsening contractions, more bleeding, or gush of fluid.” Do you see that?
A. I do.
Q. Did that plan comply with the standard of care on January 26th, 2009, the plan that Dr. Lund has documented?
A. Absolutely not. Again, this is an ongoing condition. The patient required at this point certainly to be admitted, to stop those contractions, to watch her carefully, and to know that even at 28 weeks, that there are — in our literature, obstetrical and other literature, that 23-week fetuses are and can be viable, as in this ease. And that potentially watchful waiting would not be the appropriate management.
Id. at 73:5-25. Dr. Phillips testified that the standard of care required that the LDU administer tocolytics to Veasley. Dr. Phillips testified, that tocolytics would not be contraindicated for a patient that was not in active labor and who did not have cervical changes. Dr. Phillips explained,
A. [Dr. Phillips]: [I]n this situation, with this set of circumstances, with this patient, with a retained IUD. You’re required to address those contractions and the bleeding....
Q. [Plaintiffs’ counsel]: What is it about Mrs. Veasley’s specific situation with the retained IUD that mandated the tocolytics? What benefit with Mrs. Veasley not being in labor would the tocolytics have had as of January 2006?
A. It is because of the mechanism by which the IUD is causing the contractions. The IUD presumably, and more likely than not by medical certainty, was the cause of the contractions ... The IUD itself is the cause for the problem of the contractions .... It is well known that an IUD retained pregnancy is at very high risk from prematurity and preterm labor. It is the cause_This is a very specific and unique situation. And the standard of care did require that they stop those contractions so that to minimize the... IUD’s action on the uterus itself in causing the contractions.
Id. at 75:7-76:8. Dr. Phillips testified that the need to give steroids would depend on how the patient responded to tocolytics. Dr. Phillips testified that “[i]f there was evidence that the tocolysis or attempts to stop the uterine contractions were failing, and that there was going to be a high likelihood that the baby would deliver, then it would have been appropriate to use the steroids at that time to accelerate the lung maturity.” Id. at 77:22-78:2.
Referring to Veasley’s January 28, 2009 visit, Dr. Phillips testified that Veasley’s discharge plan did not comply with the standard of care. Dr. Phillips testified that,
Dr. Lifset actually recognizes that [Veasley] has the IUD in place, has a patient who has been having ongoing contractions, ten-out-of-ten pain, having bleeding, and yet he doesn’t consider that the IUD is the source of this... .A reasonably, careful obstetrician would clearly understand that at this point, this patient is having all of her problems due to the IUD in place. And the standard required at that point is certainly to aggressively approach this patient by admitting her, placing her on tocolysis, and aggressively managing her so that we can salvage this pregnancy as best as possible.
Id. at 81:11-22.
On cross-examination, Dr. Phillips noted that in the American Congress of Obstetricians and Gynecologists (“ACOG”) Practice Bulletin 127, Exhibit 108, states “there may be times when it is appropriate to administer tocolytics before viability.(ECF No. 100 at 20:12-14). However, Dr. Phillips admitted that he was not aware of any “medical textbook, journal, article, medical guideline, or other source” that recommends that a woman with an IUD who is experiencing preterm contractions should be admitted and treated with tocolytics. Id. at 14:10-14. Dr. Phillips explained that the condition of a pregnant woman with a retained IUD is so rare that it would “not warrant enough patients to make an article — ” Id. at -114:14-15. He also testified that it would not be appropriate to conduct a controlled study because “to randomize a woman like that into a group that wouldn’t receive those treatments” because of the high risk for premature delivery. Id. at 114:4-115:2. Dr. Phillips stated that he had “no personal experience giving tocolytics to a pregnant woman with an IUD in their uterus who is experiencing preterm contractions.” Id. at 129:16-19. Dr. Phillips stated that 80% of women experiencing preterm contractions stop having contractions without any intervention. Dr. Phillips stated that on Veas-le/s last visit to NHCP on January 28, 2009, Veasley was not in pre-term labor because her cervix was not dilated.
Dr. Kingston, Defendant’s expert, testified that the standard of care required that physicians caring for Veasley in January 2009 be aware that Veasley was pregnant and had a retained IUD. Dr. Kingston testified,
if a woman conceives with an IUD in place or if it is placed when an early pregnancy exists, there is a much greater risk for a loss in the first trimester of pregnancy. And in studies that have tried to quantify that risk, they’ve ranged from 40 to 50 percent first trimester loss rate.... [W]omen who do not have an IUD in place, the rate of miscarriage is 10 to 15 percent... .If you make it beyond the first trimester and into the second trimester, the loss rate or early preterm birth rate for women who ha[ve] a retained IUD is roughly 18 percent.
(ECF No. 93 at 32:25-33:16). Dr. Kingston testified that the evaluation of a pregnant patient with a retained IUD “doesn’t change.. .in any way, only knowing that it is a risk factor, but the same physical examination, the same lab tests' would be done in a patient who presents with those complaints who is suspected to have a retained IUD or who presents with those complaints who doesn’t have that suspicion at all.” Id. at 33:25-34:5. Dr. Kingston testified that when Veasley went to NHCP with complaints of vaginal bleeding, cramping, and pain,
[Veasley] was evaluated systematically and comprehensively including history, a physical exam, and lab tests that were appropriate based on the complaints that she presented with. And at the conclusion of each visit, she was not found to have. any acute issue[s] that would require hospitalization.
Id. at 31:7-12.
Dr. Kingston testified that the standard of care did not require Veasley to be admitted to the hospital during any of her visits to NHCP because “she did not meet criteria for the diagnosis of preterm labor.” Id. at 35:22-23. Dr. Kingston testified that at all of the appointments, Veasley’s “cervical length was normal. Her cervix was not dilated, and as such she did not have the diagnosis of preterm labor.” Id. at 35:23-25. Dr. Kingston explained that Veasley “was having preterm contractions, but preterm contractions do not always translate into preterm labor.” Id. at 36:18-20. Dr. Kingston explained that “[m]any if not most women in the third trimester and even the second trimester of pregnancy have contractions, and that does not confer risk for preterm labor and preterm birth in and of itself.” Id. at 36:20-23. Dr. Kingston testified that Veasley did not meet the criteria to be admitted for any other diagnoses, such as placenta previa or a placental abruption.
Dr. Kingston testified that the standard of care did not require treatment with tocolytics. Dr. Kingston testified that to-colytics “are not generally recommended for women before the time of viability, which in general is considered to be 24 weeks gestation.” Id. at 40:12-14. Dr. Kingston testified that tocolytics may be given before 24 weeks “[i]f preterm birth is felt to be imminent and there is no contraindication to tocolytics.” Id. at 40:16— 18. Dr. Kingston testified that tocolytics may be given to a pregnant woman who is having intraabdominal surgery, but that even in that case, if the woman was less than twenty-four weeks pregnant the standard of care does not require the administration of tocolytics because there is no evidence that tocolytics are effective. Referring to ACOG Practice Bulletin 127, Exhibit 108, Dr. Kingston testified that “[i]n general, tocolytics are not indicated for use before neonatal viability. Regardless of interventions, perinatal morbidity and morality at that time are too high to justify the maternal risks associated with tocolytic therapy.” Id. at 42:24-43:2. Dr. Kingston testified that having an IUD might be a contraindication to tocolytics:
Q. [Defendant’s counsel]: What about in the context of, let’s say, a woman who is pregnant with a known IUD in place, would that change the analysis of when to treat such a woman with tocolytics?
A. [Dr. Kingston]: No.
Q. Why not?
A. It would actually make me want to use tocolytics a lot less. There is no evidence that the tocolysis will work, and in that situation I would be concerned that it is a contraindication.
Q. Why might it be a contraindication?
A. So in women who have a retained IUDs, one of the reasons that preterm labor and preterm birth ensues is because of intrauterine infection, and if you suspect or highly suspect that your patient has an intrauterine infection, tocolysis is actually contraindicated because you don’t want to prolong the pregnancy and keep the baby in that dangerous environment.
Q. And besides being a danger to the baby, would giving tocolytics in the setting of a uterine infection cause a potential risk to the mother as well?
A. Yes. So a mother is at risk when she has uterine infection. If it is sustained of that progressing further to sepsis and even death, if it becomes severe enough, and sepsis affect her future fertility and put her at risk of needing aggressive interventions to treat that septic infection.
Id. at 43:3-44:2. Dr. Kingston testified that she was not aware of any “reliable medical resources” that recommend that tocolytics be used in a preterm woman with a known IUD in place who was experiencing preterm contractions but showed no cervical changes. Id. at 44:3-6.
Dr. Kingston testified that the standard of care did not require the doctors to administer “corticosteroid medications” to Veasley because she was not in preterm labor and was at less than twenty-four weeks gestation. Id. at 51:4-12. Dr, Kingston explained that “corticosteroids are given when a patient appears to be at imminent risk for preterm births, they are known to. ...accelerate lung maturity, and they have been shown to reduce risk for brain hemorrhage, as well as complications with a condition called necrotizing entero-colitis, which is a risk for babies born prematurely.” Id. at 49:21-50:1. Dr. Kingston testified that corticosteroids are recommended if a woman is “between 24- and 34-weeks gestation and she is deemed to be at imminent risk of preterm birth and there are no contraindications to using corticosteroids.” Id. at 50:4-6. Dr. Kingston stated that there “is no consistent scientific evidence that corticosteroids are beneficial in gestations less than 24 weeks.” Id. at 51:1-3.
ii. Discussion
Plaintiffs contends that Defendant acted below the standard of care by failing to admit Veasley to the hospital and administer tocolytics and antenatal steroids when she presented to the hospital on multiple occasions from January 13, 2009 to January 28, 2009. Defendant contends that the standard of care did not require admission to the hospital or the administration of tocolytics or antenatal steroids, medications that would stop her contractions, because Veasley was not in preterm labor when she presented at the hospital and she was at less than twenty-four weeks gestation.
In this ease, Dr. Phillips testified that the NHCP personnel should have admitted Veasley and administered tocolyt-ics. Dr. Phillips testified that there, may be times when it is appropriate to administer tocolytics before twenty-four weeks gestation; however, Dr. Phillips opinion was not supported by any medical literature regarding the treatment of women in Veas-ley’s condition with tocolytics. Dr. Phillips testified that he had no personal experience administering tocolytics to a woman in Veasley’s condition. Dr. Kingston testified that the standard of care did not require the administration of tocolytics or steroids to pregnant women less than twenty-four weeks estimated gestational age and to women who are not in preterm labor. Dr. Kingston testified that Veasley did not meet the criteria to be admitted at any time during January 2009. The Court finds that even if, as Dr. Phillips testified, tocolytics may have been administered, there is no evidence in the record that the NHCP personnel were required by the standard of care to admit Veasley and administer tocolytics. See N.N.V. v. Am. Assn, of Blood Banks, 89 Cal.Rptr.2d at 903 (“The existing standard does not fault a medical professional for choosing among different methods that have been approved by the profession even if the choice later turns out to have been the wrong selection or not favored by other members of the profession.”). The Court concludes that the NHCP personnel did not violate the standard of care by not admitting Veasley and administering tocolytics and steroid medications because Veasley’s pregnancy was less than twenty-four weeks gestation and she was not in preterm labor.
IV. Causation
Plaintiffs contend that “there is no evidence, and no reason to suppose that Mildred Veasley would have had anything other than a normal pregnancy, and no evidence, and no reason to suppose that Brianna Veasley would have been anything but neurologically normal” had Dr. Almy not inserted the IUD after Veasley became pregnant. (EOF No. 112 at 26). Defendant concedes that it is “not arguing causation with regard to the insertion of the IUD.” (EOF No. Ill at 44 n. 23). The parties stipulated that Brianna’s premature birth was a substantial factor in causing her “severe to profound mental retardation,” and that her extreme prematurity and low birth weight were substantial factors in causing her to suffer from medical problems. (EOF No. 48 at 7-8). The Court concludes the Dr. Almy’s failure to reasonably rule out pregnancy before inserting the IUD was a substantial cause of Brianna’s premature birth. Accordingly, the Court finds that Dr. Almy’s faitee to reasonably rule out pregnancy before inserting the IUD was a substantial factor in causing harm to Veasley and Brianna and that Plaintiffs are entitled to damages.
V. Damages
Section 1431.2(b)(1) of the California Civil Code states:
[T]he term “economic damages” means objectively verifiable monetary losses including medical expenses, loss of earnings, burial costs, loss of use of property, costs o