Citations
- 752 F. Supp. 764
Full opinion text
OPINION
GILMORE, District Judge.
This is a complicated medical malpractice case brought against the United States under the Federal Torts Claim Act, 28 U.S.C. 2671, et seq., (FTCA) alleging medical malpractice by physicians at the Wurtsmith Air Force Base, Oscoda Michigan, in the delivery and resuscitation of Michaela King on September 5, 1985.
In a trial lasting more than two weeks, 19 physicians testified for Plaintiff and Defendant. For the reasons set forth herein, the Court determines that the Air Force physicians were guilty of malpractice, and that that malpractice was a proximate cause of the cerebral palsy, cortical blindness, and retardation of Michaela King.
I
Lucinda E. King, wife of Airman First Class Robert W. King, consulted physicians at Wurtsmith Air Force Base in February of 1985 for prenatal care. An ultrasound at approximately 8 weeks indicated a due date of September 25, 1985. In the early weeks of the pregnancy, Mrs. King experienced some vaginal bleeding, which was stopped with bed rest. Testimony of all physicians who considered the bleeding was that it was not unusual and did not indicate a high risk pregnancy. Mrs. King had regular prenatal care, but missed a July appointment because she went to Eugene, Oregon, for a period of over a month to help care for her mother, who was recuperating from surgery. The pregnancy proceeded normally.
On September 4, 1985, Mrs. King had a spontaneous rupture of membranes — her water broke. She was admitted to Wurt-smith Air Force Base Hospital at 12:30 p.m., and was instructed to walk the halls during the day, in an effort to naturally induce labor. She had occasional contractions, but did not go into labor. The fetus was intermittently monitored with an external fetal monitor, and Mrs. King stayed overnight at the hospital.
When labor had not begun by the following morning, labor was induced by use of the drug Pitocin, which causes uterine contractions. The drug was administered through an IV, and was periodically increased through the course of the labor. The induction began at 6:45 a.m. in a labor room. Mr. King was present throughout the labor and delivery. The contractions and fetal heart rate were monitored with an external fetal monitor. Testimony was conflicting about whether the monitor was working properly on this day, or whether it could properly monitor contractions in light of Mrs. King’s strong reactions to contractions.
At 9:45 a.m., Dr. Philip Lawrence, who had completed his shift for that day at 8:00 a.m., but was temporarily covering for the other obstetrician on the floor, Dr. Brad Epstein, performed a vaginal examination on Mrs. King. She was 4-5 cm. dilated and 90% effaced. At that time, she was experiencing a great deal of pain in her labor, and Nurse Christy Kinnaird asked Mrs. King if she wanted a pain killer. She stated that she did, and Dr. Lawrence ordered 10 mg. of a narcotic pain killer, Nisentil. Nurse Kinnaird administered the drug through the IV. At 10:50 a.m. Dr. Lawrence approved and Nurse Kinnaird administered an additional 20 mg. of Nisentil subcutaneously. No physician examined Mrs. King before she was given the second dosage, but Dr. Epstein saw her at 11:05 a.m., and that examination revealed that she was dilated 6-7 centimeters.
By 11:20 a.m., Mrs. King was completely dilated and 100% effaced. She was experiencing uncontrollable urges to push. The fetal heart monitor was disconnected, and she was rushed to the delivery room. Dr. Epstein performed a mid-line episiotomy. Mrs. King gave a mild push and delivered the baby’s head. The doctor, based on his routine practice, suctioned the baby, and then rotated the baby and delivered the shoulders. He allowed Mr. King to pull the baby completely out. The child was a girl, named Michaela. Birth occurred at 11:31 a.m.
Dr. Epstein towelled off the baby and placed her on her mother’s chest and abdomen. The baby did not cry or move. He then draped the baby with another towel and gently rubbed her. Nurse Kinnaird encouraged Mr. King to take a picture, and he took one or two. Dr. Epstein then clamped the umbilical cord and allowed Mr. King to cut it. Dr. Epstein then drew blood from the umbilical cord and Nurse Kinnaird walked away to prepare the baby’s armbands.
At some point, Mr. King asked “Why is my baby so blue?” and was informed that all newborns are blue.
At one minute after birth, Airman VanAsdale, a delivery room technician, performed the one minute APGAR, which was O. The APGAR is an evaluation of an infant in five categories: heart rate, respiration, muscle tone, reflex irritability and color.
Airman VanAsdale found no heartbeat in Michaela. When so informed, Dr. Epstein carried her to the warming table and placed her head slanting down. While he prepared to put a bag and mask on the baby, Nurse Kinnaird and Airman VanAsdale began tactile stimulation. When that was ineffective in resuscitating her, Nurse Kin-naird ran to the phone and called for Dr. Roberto Caro, a pediatrician. She asked that he come immediately.
Dr. Epstein placed the oxygen mask on Michaela and established an airway and Nurse Kinnaird began chest compressions. They continued using the bag and mask for one or two minutes, but Michaela did not gain color or show signs of vitalization. A five-minute APGAR indicated a score of one. Michaela’s heart rate was 40 beats per minute, which is not sufficient to sustain circulatory perfusion. She had no other respiration, muscle tone or reflexes, and her color was still cyanotic.
Dr. Caro arrived in the delivery room and took over the resuscitation. He immediately placed an endotracheal tube through Mi-chaela’s mouth and into her trachea. It was stipulated that the tube was placed at 11:37, six minutes after Michaela’s birth. Only after intubation did Michaela begin to turn pink and show signs of life.
At 11:40 a.m., Dr. Caro administered Narcan, a substance used to neutralize the depressant effects of Nisentil on a fetus. Michaela’s 10 minute APGAR, done at approximately 11:41 a.m., was 5. At 11:46 a.m., the endotracheal tube was removed, but no testing of Michaela’s blood gases was done before the tube was taken out because the hospital’s machine for testing blood arterial gases was broken down. Her level of acidosis, a condition of decreased ph or increased acidity in the blood, and hyperearbia, a condition of increased carbon dioxide in the blood, were not checked. These, as well as asphyxia or hypoxia, a decrease of oxygen in the blood, can cause damage to brain cells. Michae-la’s blood pressure was never taken in the delivery room or later in the nursery. During the course of the resuscitation, Colonel Hartison, the hospital commander came to the delivery room and reassured Mr. King about what had just happened. Dr. Lawrence, the other obstetrician, also came into the delivery room.
After the baby’s resuscitation, Dr. Epstein delivered Mrs. King’s placenta and she was returned to the labor room. Mr. King accompanied Michaela to the nursery. Michaela was placed in an oxyhood' with oxygen at 40%. Dr. Caro’s initial examination of Michaela showed that she had a weak cry, had hypoactive (or decreased) muscle tone, was sluggish, had constricted pupils, had decreased reflexes and had a decreased Moro reflex. Her 15 minute AP-GAR was 8. Her head circumference was 32.5 cm. and her weight was 6 lbs. 12 oz. Dr. Caro ordered six hours of monitoring and was concerned about seizures developing in the first 24-48 hours as a result of the anoxic episode at birth.
During the course of the afternoon, a few alarms on the monitor went off when Michaela’s breathing dropped below a certain level, but she spontaneously recovered from each of these episodes. Dr. Caro’s cheek of Michaela at the end of the day demonstrated that she remained hypoactive and that her eyes were now slightly dilated. He was also concerned that the baby was not sucking or swallowing well and had trouble breast-feeding. He told the nursing staff to start an IV if Michaela did not feed better. Later that night, a nurse started the IV. Michaela did not cry when stuck with the needle. Thereafter, one of the nurses called Dr. Caro at home and described to him Michaela’s facial grimaces and jerking movements, which were stilled when she was held. He determined these were not seizures and did not come in to check her.
Over the course of the next few days, Michaela remained floppy, and continued to have difficulty feeding. In the first 24 hours, her head size, or at least the measurement of her head size, showed an increase of one centimeter, to 33.5 cm. She developed a slightly jaundiced condition. She was able make urine and pass meconi-um. On September 9, 1985, after being kept in the hospital one additional day, Michaela was discharged. Her discharge diagnosis, made by Dr. Adam Mezoff, Chief of Pediatrics at Wurtsmith Air Force Base Hospital, was “severe perinatal asphyxia,” “abnormal neurological examinations secondary to above.” The Kings were told to watch for seizure activity.
Michaela returned to the hospital on Sept. 11, 1985, because Dr. Caro had ordered a brain ultrasound, or echoencepha-lography to determine if Michaela’s precipitous birth could have caused any hemorrhaging into the brain. Michaela was still floppy, but the results of the brain ultrasound were negative.
Over the next few months, Michaela attended regular well baby visits. Dr. Caro testified that she fell within the range of normal children on those visits.
However, on November 15, 1985, Michae-la began to have noticeable seizures, which were growing more intense. Mr. and Mrs. King took Michaela to the hospital emergency room, and were instructed to take Michaela home, and to observe and count the episodes of seizures. When 13-15 episodes occurred within the next ten hours, her parents returned her to the hospital and she was admitted on November 16, 1985. Dr. Mezoff, who treated her at that time, wrote on her chart “possible seizures and neuroimpairment secondary to birth asphyxia.” Dr. Mezoff also noted that an exam of her head, eyes, ears, nose and throat were remarkable for intermittent, continuing nystagmoid movements, which could reflect a neurological impairment. At that time, however, he determined that she had a good suck, swallow and grasp and that her cranial nerves were intact.
On November 18, 1985, Michaela was transferred to C.S. Mott Children’s Hospital at the University of Michigan. Specialists there, including Dr. Faye Silverstein, examined Michaela and performed a series of tests. They conducted a CT scan and an electroencephalogram to try to determine the scope and cause of Michaela’s problem. They also performed metabolic studies and other studies which would indicate the presence of infections or other problems during pregnancy. The test results were normal, showing no detectable metabolic disorder, normal amino acids, normal PKU, and normal galactosemia. The CT scan, however, showed changes consistent with mild cerebral atrophy. A TORCH screen, which detects congenital infections, was normal. At that time, Dr. Silverstein, a pediatric neurologist, opined the seizures to be “secondary to perinatal asphyxia.” Mi-chaela’s seizures were controlled with phenobarbital, and she was discharged home on November 21, 1985.
She returned to Mott Children’s Hospital on January 30, 1986, for follow-up by Dr. Silverstein, who was concerned that Mi-chaela showed a lack of developmental progress. She was examined by a pediatric opthamologist and other opthamologists, who determined that Michaela had cortical blindness, that is, her eyes were normal, but she had a brain problem that caused blindness. The opthamologist’s impression was that her blindness was caused by “perinatal asphyxia.” Michaela had follow-up appointments at the University of Michigan Hospital, and Dr. Silverstein expressed continued concern regarding Michaela’s ultimate neurologic outcome.
At age six months, Michaela’s weight was below the fifth percentile, and she was having trouble eating and gaining weight, something Dr. Mezoff attributed to her neurological impairment.
In June 1986, the Kings moved to McCord Air Force Base, Tacoma, Washington, because of better facilities in the area for Michaela’s treatment and because of closer proximity to family members. There, Michaela received medical care from physicians at the Madigan Army Medical Center. She was initially examined by Dr. Mark Nupen, Staff Pediatrician. Since then, she has also been seen by Major William McClintock, Pediatric Neurologist, Dr. Thomas Clingan, Developmental Pediatrician, and Dr. Mark Stephan, Pediatric Dysmorphologist.
Michaela King is now 5 years old. She suffers from cerebral palsy, cortical blindness, and retardation. In January, 1990, because she was not growing well, a gas-trostomy tube was placed in her stomach, and she is fed a high caloric supplement from it at night. She moves her extremities perpetually. She can slap switches to activate toys. She can say “mamma.” She cannot walk, or talk meaningfully.. She is incontinent of urine and feces. All food that she takes by mouth must be prepared in a blender. She cannot feed herself. She cannot see.
Various tests disclose no genetic or metabolic bases for these problems. She has a younger sister and brother who are both normal. Michaela attends school for a half day each week day and receives some physical, speech and visual therapy at school. Therapy has disclosed that Michaela can track a light in a dark room. She currently receives additional speech and oral therapy twice a week in Tacoma, which is 18 miles from the King’s home. In the past, her parents also took her to Tacoma for physical therapy and had visual and educational therapy at home. Her parents are her care providers, except for the time that she is in school.
Plaintiff filed suit against the United States on July 2, 1987, under the FTCA, alleging medical malpractice. The Complaint originally alleged medical malpractice on behalf of Michaela King (Count I), medical malpractice on behalf of Mrs. King (Count II), and loss of consortium, services, earnings, expenses, past present and future, on behalf of both parents. Judge Churchill, who was the judge on this case until trial, dismissed Count II for failure to exhaust administrative remedies, and dismissed the paragraph of Count III dealing with loss of consortium, pursuant to Michigan law. (Order dated March 3, 1989). Now before this Court is a medical malpractice action seeking medical expenses, loss of future earnings and wages, pain and suffering, and disability on behalf of Lucinda King, as Conservator for Michaela King, and past economic damages on behalf of the parents. Mr. and Mrs. King have stipulated that they are not entitled to other damages.
II
Both parents testified at trial. Mrs. King related the facts of Michaela’s birth and life with composure. She testified that during the course of her labor and delivery, the fetal heart monitor was not working properly and that hospital personnel occasionally pounded on the machine, and eventually exchanged it for another monitor.
After Michaela’s delivery, Mrs. King went to the nursery to feed her. Michaela had difficulty nursing and sucking from a bottle. Even on the second day, Michaela would not nurse, and Mrs. King eventually fed her by cutting larger holes in a bottle nipple. She testified that Michaela had no head control, and she noticed sneer-like expressions on the baby’s face. She was told to watch for seizure activity upon discharge, but when she asked the nurses what to watch for, they could not tell her.
At some point, Dr. Caro told her that Michaela’s birth was different, because Mi-chaela had suffered anoxia at birth, and similarly, at Madigan Medical Center, Dr. Nupen indicated that Michaela’s problems resulted from anoxia at birth.
Mrs. King testified that at first the physicians generally tied Michaela’s condition to anoxia at birth, but after the Kings started the instant lawsuit, they contended that they did not know the cause. They stopped referring to anoxia, and only referred to cerebral palsy. Drs. Clingan and McClintock, who saw Michaela at Madigan, both said at one time that Michaela had anoxia at birth and have now changed their positions.
She further testified that Michaela needs care 24 hours a day, and that the burden of that care falls on her and her husband. Champús, the health insurance provided to members of the military, has paid for most costs, though the Kings must pay a $25 deductible each month.
Mr. King credibly described Mrs. King’s labor and delivery, and Michaela’s birth. He stated that he does not plan a career in the Air Force, and that he is looking into private employment now. He has much concern about how Michaela’s condition will affect his ability to get insurance coverage.
He also remembered problems with the monitor, and said that Airman VanAsdale had to adjust it and eventually replaced it, saying it was broken. He also described Michaela’s condition in the nursery. He stated that she would not nurse or wake up. She was limp and floppy and hardly moved. He stated that the family now needs a van to transport Michaela but cannot afford one. He further stated that prior to the filing of this suit, the family hand-carried Michaela’s medical records to doctor’s appointments, but that after institution of this suit, her records were kept in the JAG office, and the family had to call the office to have records delivered to the doctor.
Ill
The first question the Court must determine is whether the physicians who attended the labor and delivery of Michaela King fell below the standard of care required of reasonable obstetricians.
Under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. and 28 U.S.C. § 1346(b), this Court is required to apply the law of the State of Michigan. 28 U.S.C. § 1346(b) provides in pertinent part:.
Subject to the provisions of chapter 171 [28 U.S.C. § 2671 et seq.] of this title, the district courts ... shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages ... for injury or loss of property, or personal injury or death 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.
The standard of care in a medical malpractice action is codified in Michigan Law. M.C.L.A. § 600.2912a provides in pertinent part:
In an action alleging malpractice the plaintiff shall have the burden of proving that in light of the state of the art existing at the time of the alleged malpractice:
(b) The defendant, if a specialist, failed to provide the recognized standard of care within that specialty as reasonably applied in light of the facilities available in the community or other facilities reasonably available under the circumstances, and as a proximate result of the defendant failing to provide that standard, the plaintiff suffered an injury.
See Jones v. Porretta, 428 Mich. 132, 405 N.W.2d 863 (1987); Sexton v. Petz, 170 Mich.App. 561, 428 N.W.2d 715 (1988).
Plaintiff claims that the medical handling of the labor and delivery fell below the standard of care in two ways: first, physicians failed to properly monitor Mrs. King’s Pitocin-induced labor, and thus were not aware that Mrs. King’s uterus had become hyperirritated. It is claimed they failed to discontinue the Pitocin, and as a result, Michaela’s birth was precipitous. Second, Michaela was born in a depressed condition, either as a result of the Nisentil administered to Mrs. King or as a result of the precipitous birth. Doctor Epstein failed to recognize her condition until the one minute APGAR. Though resuscitation was begun at that point, Michaela was not intubated until six minutes after her birth.
The Court will begin with the allegations of improper monitoring of the Pito-cin-induced labor. Dr. William Matview, one of Plaintiff’s experts, testified that the tracing of uterine contractions indicated that Mrs. King’s uterus had become hyperactive in response to the Pitocin dosage. He stated that, at that point, the Pitocin dosage should have been decreased or stopped, because it could cause a precipitous birth, in which the fetus cannot get enough oxygen because of decreased blood in the uterus or because of compression of the fetus’ head in the birth canal.
It is undisputed that Michaela’s birth was precipitous. Defendant’s witnesses Dr. John McLaughlin, Dr. Philip Sunshine, Dr. Frank Miller, and Dr. Caro all stated that it was precipitous. However, there is no evidence of any harm resulting from the precipitous birth. Dr. Matview admitted that an authoritative treatise stated that in some instances babies whose births are precipitous actually experience a protective effect and experience birth trauma for a shorter period of time. In addition, Dr. Miller testified that though a hyperirritated uterus could harm a fetus, damage would be indicated. on the fetal monitor strip. With the exceptions of Drs. Matview and Menkes, it is generally conceded that the fetal monitor strip showed only occasional nonreassuring patterns which were resolved.
Similarly, harm from the battering effects of the baby’s head against the birth canal, intensified in a precipitous birth, would be apparent in a newborn by bruises or hematoma or in the mother’s vaginal tears. Michaela did not have bruising and Mrs. King did not have tears. The record is inconclusive regarding the hematoma, because a brain ultrasound was not performed until several days after Michaela’s discharge, and testimony indicated' that by that time, blood from á hematoma could easily have been absorbed.
In addition, the record does not indicate that Mrs. King’s uterus was actually hyperactive. There is no question that she had a very painful labor, as she and Nurse Kinnaird both testified. It is undisputed that the tracings of her contractions are difficult to read. She suggests that the machine was not properly monitoring her. Nurse Kinnaird’s testimony, consistent in both deposition and live testimony, is that Mrs. King was reacting strongly to the pain, and moving so much that the external monitor could not get a proper reading. Nurse Kinnaird stated that she was trying to palpate Mrs. King’s contractions by hand, but even Dr. Miller, Defendant’s witness, indicated that it is impossible to accurately monitor uterine contractions by hand.
The only evidence that Michaela was harmed by the clearly precipitous birth is Dr. Matview’s testimony. Even he admitted that precipitous births can actually protect a child. Because the evidence of hy-perirritability is inconclusive, and because Michaela was born with no physical injury that might have resulted from a precipitous birth, the Court concludes that Plaintiff cannot meet the burden of proof on breach of the standard of care or on causation on this point.
The second question, whether there is liability as a result of Dr. Epstein’s failure to promptly resuscitate Michaela, is a much more troubling question.
The Court will begin with the question of whether there was a breach of the standard of care. Colonel Fox, for Defendant, admitted in opening argument that Dr. Epstein delayed in intubating Michaela. He stated:
Now this is the difficult part, of course, for the government and that is we will have to admit at this point in time there was a delay in intubating the child and we do not pretend otherwise and will not take that stand. However, what we will admit to is not a complete failure on the part of the physician to intubate, that is, merely that the intubation should have occurred sooner, and the testimony will show that the surprise of Michaela King’s condition at birth, not being expected or anticipated, justified the obstetrician’s early response in attempting to stimulate the child and then resorting to bag and mask. Intubation should have occurred a couple of minutes sooner. That, of course, our own experts will testify to. Now concerning the intubation, there is clearly no causation in this case....
Similarly, almost every physician who considered this case, whether for Plaintiff or Defendant, including Dr. Epstein, stated that there was delay in intubation. It is conceded that Dr. Epstein fell below the standard of care in not intubating Michaela more quickly.
Based on the admissions of Defendant's attorney in his opening statement, on the testimony of the physicians mentioned, supra, and on the testimony of Dr. Epstein, it is clear that Dr. Epstein breached the standard of care of a reasonable obstetrician in not intubating Michaela much more quickly because of her 0 APGAR score and because of her lack of heartbeat at one minute. Thus, the first prong to establish liability — failure to adhere to the standard of care of a reasonable obstetrician — has been met. Consequently, the key question before this Court, and the issue on which the Government hangs its defense, is causation.
IV
A discussion of causation must begin with a discussion of the witnesses. It is troublesome to the Court that many of Defendant’s witnesses have not held a consistent position on the cause of Michaela’s condition. Most notably, Dr. Silverstein, when she treated Michaela in 1985 and 1986, clearly determined that the most likely cause of Michaela’s condition was perinatal asphyxia. In contrast, she testified in Court that she now holds the position that, though she does not know the cause of Michaela’s condition, the cause is not perinatal asphyxia. In between her change of position, she did not see Michaela.
In response to questions from the Court about why she had changed her position, Dr. Silverstein stated that in the profession generally, in response to litigation, there had been writing and discussion on diagnosing asphyxia in more limited circumstances, and that her thinking had evolved as a result of what she had read. The Court finds her testimony evasive, her attitude disdainful and arrogant, and the motivation for her change of opinion clearly suspect. The Court will disregard her changed opinion.
Other physicians also changed their positions subsequent to the filing of this lawsuit. Dr. Gary Mezoff, who discharged Michaela with a diagnosis of perinatal asphyxia, stated that he no longer believes the cause to be perinatal asphyxia because he has become aware of more entities that can cause problems in small children. Dr. Clingan, who treated Michaela at Madigan, first assessed Michaela as having “severe asphyxia at birth.” At the time he gave his deposition, however, after reading material provided by Defendant, he stated that Michaela lacks classic symptoms of asphyxia, and it was too speculative to try and determine the cause of her condition.
Dr. William McClintock, who also saw Michaela at Madigan, diagnosed her in October 1986 as having severe brain injury, probably due to traumas at birth. In his deposition, however, he testified that perinatal asphyxia is not the cause of Michae-la’s problem, and her condition is due to something else.
Dr. Epstein at first testified that the cause of Michaela’s condition could not have been lack of oxygen at birth, because it takes 10-12 minutes for people to suffer brain damage from lack of oxygen. However, in response to questioning from the Court, he stated that he knows of no other reason for Michaela’s condition than perinatal asphyxia. Considering that Dr. Epstein thereby admitted responsibility for Miehae-la’s condition, it was clearly a highly credible admission.
Of all the physicians whose position was not entirely consistent, the most reliable was Dr. Caro. Throughout Michaela’s hospital course, he referred to her condition as depressed at birth. In courtroom testimony, he maintained that diagnosis. However, on Michaela's outpatient pediatric records, Dr. Caro had written “perinatal asphyxia.” He testified that he did that because that was Dr. Mezoff’s discharge diagnosis. Though the Court considers him a reliable witness, his use of the term “perinatal asphyxia” on the outpatient chart does suggest that he did not disagree with the diagnosis.
The Court looks with suspicion on the testimony of those witnesses who changed their position. Colonel Fox, defense attorney, had contacted many of them and provided them with information favorable to his case. In fact, as Dr. Silverstein testified, an article by Dr. Karen Nelson, provided to many of the doctors, and on which they relied in changing their opinions, was written in response to litigation. It is the opinion of this Court that these doctors flip-flopped on causation because of this particular litigation and because of concern about litigation in general. Accordingly, it will disregard those discussions of causation.
Several other doctors also discussed causation. Dr. Nupen, who saw Michaela at Madigan, testified that perinatal asphyxia was his working diagnosis, and that Mi-chaela’s condition was consistent with that diagnosis. Dr. Menkes, a highly qualified expert, testified that the cause was perinatal asphyxia, as was indicated by Michae-la’s sickness as a newborn, her depressed APGAR, abnormalities on the fetal monitor strip, and her neurologic findings. The Court finds Dr. Menkes to be a measured, careful and reliable witness.
Dr. Matview also testified that Michae-la’s current condition is a result of perinatal asphyxia. The Court finds his testimony somewhat reaching. In addition, he lacked the academic credentials of many of the witnesses. His testimony does not weigh heavily in favor of Plaintiff.
Dr. Josefine Vallarta also clearly testified that, to a reasonable degree of medical certainty, Michaela’s condition is a result of perinatal asphyxia. The Court finds her testimony objective and reliable. When Dr. Vallarta first examined Michaela, she could reach no conclusion about the cause of Michaela’s condition. Therefore, she ordered a number of additional tests, including a chromosome analysis, a urine test to rule out metabolic causes, and dysmorphol-ogy testing to rule out genetic abnormalities. The results of these tests were normal. She then reviewed two CT scans, one done at Mott Children’s Hospital and one done at Madigan, a hearing evaluation' and Michaela’s birth records. Only after this thorough review, which does not appear to be affected by a bias in favor of the Plaintiff, did Dr. Vallarta come to the firm conclusion that Michaela’s brain dysfunction is due to perinatal asphyxia. In addition, Dr. Vallarta has examined Michaela a number of other times, and her opinion as to causation has not varied.
Dr. Miller was also a very credible witness. He, however, determined that to a reasonable degree of medical certainty, there was no causation between deprivation of oxygen at birth and current problems. The basis of his opinion was that there was insufficient time between delivery and establishment of an airway to cause brain damage. He, more than any other doctor, clearly established the depressant effects of Nisentil on a fetus. However, his opinion failed to account for the possibility that Michaela’s heart could have stopped beating several minutes before her birth. He acknowledged that no one knows whether Michaela’s heart was beating when she was born, but his testimony that there was insufficient time from delivery to resuscitation is undercut by the possibility that Michaela was born without respiration. Clearly, in that case, the delay in intubation was far more crucial.
Several other physicians, Drs. Scher, McLaughlin and Sunshine, testified that Michaela did not meet the criteria for a child who suffered brain damage as a result of perinatal asphyxia. The criteria for establishing perinatal asphyxia on which many of Defendant’s witnesses relied, particularly Dr. Sunshine, came from an article by Dr. Karen Nelson. Defendant argues that the article is carved in stone and is the only proper measure of perinatal asphyxia. But, for all the discussion of the importance of that article, Defendant did not offer it into evidence, and the Court has not had an opportunity to review it. The Court is concerned that Defendant at no point made any effort to introduce it under Federal Rule of Evidence 803(18). It is true that under 803(18) the article itself could not have been received, but it could have been read into the record for the benefit of the Court, and the Court could have had an opportunity to judge its credibility, and whether the data upon which it was based were authoritative. To ask the Court to rely so heavily upon an article that allegedly was written in response to a litigation explosion, as suggested by Dr. Silverstein, is unwarranted.
Moreover, several witnesses, including Dr. Miller for Defendant, acknowledged that they had other definitions for perinatal asphyxia, and that according to some textbook definitions of the term, Michaela had suffered asphyxia.
According to testimony, the criteria of Dr. Nelson require that the following be satisfied before a diagnosis of perinatal asphyxia can be made:
1. Interpartum difficulty, including asphyxia
2. Other organ difficulties and a newborn course consistent with asphyxia
3. Other causes ruled out
4. All studies complete
The Court finds these criteria of questionable value in litigation. If a Court held a Plaintiff to these criteria before finding causation as a result of perinatal asphyxia, Plaintiff would be required to do more than demonstrate causation by a preponderance of the evidence. Plaintiffs proof would have to be essentially conclusive.
Nevertheless, because Defendant places so much emphasis on these criteria, the Court will evaluate the evidence in light of them. Dr. Menkes and Dr. Matview suggested that the fetal heart monitor showed some interpartum difficulty. During the critical interpartum period, after the second dose of a strong narcotic, there is no fetal heart tracing available. It is clear to this Court, as discussed more completely, infra, p. 777, that Michaela was born without respiration. Therefore, Michaela obviously suffered some asphyxia during the last 6-7 minutes of birth.
In assessing the second criterion, organ difficulty and a newborn course consistent with asphyxia, the Court points out that several critical tests were not performed. At the time the tube was removed, no blood gases or ph were checked. The test took seconds to do, but the machine was broken. Doctors Lawrence and Scher, who testified for the Defendant, indicated that failure to assess blood gases before removing the tube was a breach of the standard of care. Michaela’s blood pressure was not taken during her newborn course, no organs were checked, and her urine output was not measured. In fact, a brain ultrasound was not done for several days after discharge.
The Government argues that without evidence of organ damage and other relevant measurements the Nelson criteria cannot be met. This Court is unwilling to let the Government benefit from its own doctors’ failures to make relevant tests.
Moreover, other aspects of her newborn course were clearly consistent with perinatal asphyxia. The testimony is undisputed that she was hypoactive, or lacked tone, not only during her stay at the hospital, but on her return visit on September 11, 1985. As a newborn, she had difficulty sucking and swallowing. Mrs. King described Michaela’s difficulty nursing.
Several physicians stated that Michaela had to show a much deeper depression to be suffering from perinatal asphyxia. However, the testimony indicates that Mi-chaela was in a stuporous condition in the hospital. Her reflexes, most notably her Moro Reflex, which is key in demonstrating alertness, were depressed. She slept an inordinate amount of time. Mrs. King described how Michaela lay for hours in her hospital crib with her legs straight out at a 90 degree angle, never shifting to a more comfortable sleeping position. When an IV was started to compensate for Michaela’s poor feeding, nurses reported that Michae-la did not cry at the needle prick.
Physicians also indicated that Michaela’s failure to develop seizures within the first 24-48 hours was inconsistent with perinatal asphyxia. However, Mrs. King described Michaela’s unusual sneers in her first few days of life, and in the hospital Michaela was grimacing in a manner that caught the attention of the nurse on duty and prompted her to call Dr. Caro at home. After hearing the nurse’s description, Dr. Caro determined that there were no seizures. He did not see Michaela’s behavior for himself. He at no point ordered an EEG, which witnesses recognized is the only method to verify whether or not seizures were occurring. Dr. Mezoff testified that Michaela’s grimacing could have been seizures.
This Court is satisfied that any behavior unusual enough to prompt a call to Dr. Caro at home should have been followed up on. Once again, the Court is unwilling to let the Government benefit from its own doctor’s failure to perform an EEG. The Court determines that seizures more probably than not occurred within the first 24 hours.
In regard to the requirements that studies be complete and all other causes be ruled out, the Court determines that any study relevant to Michaela’s treatment has been performed. The tests show no genetic, metabolic or other basis for her abnormalities. To the extent compatible with a proper distribution of the burden of proof, these prongs are satisfied.
Because the Court finds the criteria on which Defendant’s witnesses rely of questionable value and further finds them satisfied by Plaintiff to the extent appropriate, the Court will not rely on the testimony of those witnesses, particularly Dr. Sunshine, who stated, in reliance on the criteria, that there was no perinatal asphyxia.
A final discussion of credibility of witnesses on the question of causation concerns the neuroradiologists who reviewed Michaela’s MRI. Three witnesses examined Michaela’s MRI: Dr. Anthony Barko-vich, who Judge Churchill requested perform the scan, Dr. Thomas Naidich, who is clearly an expert in neuroradiology of children, and Dr. Sharon Byrd, who is also clearly an expert in neuroradiology of children. Both Drs. Barkovich and Naidich determined that Michaela’s MRI, to a reasonable degree of medical certainty, showed no evidence of asphyxic brain damage. Dr. Byrd concluded that children with asphyxic brain damage can have normal MRIs.
All agreed that the slight abnormalities of Michaela’s MRI were non-specific. Dr. Barkovich testified that, if Michaela’s impairment were due to asphyxia, he would expect to find severe brain damage, first to the watershed region of the brain, then to the thalami, basal ganglia, and hippocam-pus. Dr. Naidich testified that he has never seen a case of documented perinatal asphyxia with a normal MRI. He has seen cases deemed asphyxia, but not proven, with a normal MRI. He states that doctor’s clinical judgment can be wrong up to 20% of the time. Consequently, he agrees with Dr. Byrd that clinical diagnosis of perinatal asphyxia might not appear on the MRI. He does, however, disagree with her conclusion that the normal MRI is not inconsistent with perinatal asphyxia, because there is no proof of perinatal asphyxia. He distinguishes between clinical judgment of perinatal asphyxia and proof of perinatal asphyxia. Dr. Byrd testified that children with extrapyramidal movement disorders, like Michaela’s, could have normal MRIs and the basal ganglia could appear normal. She described to the Court, with the help of representative slides, the results of her study, in which 25% of children who had suffered asphyxia at birth and later developed cerebral palsy had normal MRIs.
Of the three physicians, the Court finds the most relevant discussion to be that of Drs. Byrd and Naidich. Though Dr. Barko-vich is clearly qualified, the Court is most concerned with the disagreement between Drs. Byrd and Naidich about whether a child with a diagnosis of asphyxia can have a normal MRI. Dr. Byrd has studied the question directly. Dr. Naidich addressed the question directly in his testimony. Neither disagrees that a child with a clinical diagnosis of perinatal asphyxia may have a normal MRI. Dr. Naidich asserts, however, that in documented cases of perinatal asphyxia, the MRI is never normal. Dr. Naidich then suggests that a clinical diagnosis of perinatal asphyxia could be wrong as much as 20% of the time. The nub of his testimony is that the Court should not rely on a clinical diagnosis of perinatal asphyxia. The problem with Dr. Naidich’s testimony is that while he contrasts clinical diagnosis of perinatal asphyxia and documented cases, he does not indicate what constitutes a documented case. Moreover, the Court finds his suggestion that 20% of clinical diagnosis is wrong incredible. The number seems artfully chosen to discredit the 25% of eases in which Dr. Byrd found a normal MRI. The Court finds Dr. Byrd’s testimony, therefore, reliable, and will accept her conclusion that a normal MRI is not inconsistent with perinatal asphyxia.
V
The Court finds that Plaintiffs have met their burden of proof in demonstrating that failure to intubate Michaela promptly was a proximate cause of her current condition.
The standard of proof in this case, as it is in any civil case, is by a preponderance of the evidence. The Plaintiff has the responsibility to show that the facts it seeks to establish are more likely to be true than not. This means that Plaintiff must establish by a preponderance of the evidence that, to a reasonable medical certainty, the actions of the obstetrician before and at the time of Michaela’s birth did not meet the standard of care, and that the failure to adhere to the standard of care was a proximate cause of the injuries to the child.
As discussed supra, Defendant has conceded that the failure to intubate Michaela within one minute of birth did not meet the standard of care, as have both Plaintiffs’ and Defendant’s physician witnesses. The basic issue, therefore, is whether the Plaintiffs have established by a preponderance of the evidence the necessary causation. And it was on this issue that the case was fought.
The Court feels the Plaintiffs have met their burden because every treating physician and every expert physician called by the Plaintiffs unequivocally stated that perinatal asphyxia was the cause of Michaela’s difficulties. In addition, several of the physician witnesses stated that and later recanted. It is significant that the recantation took place after the institution of this action.
All that Defendant’s witnesses could say, and all of those witnesses who recanted could say, was that they did not know what the cause of Michaela’s condition was, but that it was not perinatal asphyxia. Extensive testing ruled out other possible causes, such as chromosomal causes and metabolic causes. It appears clear to the Court that in balancing, as it must, to determine whether the plaintiff has carried its burden of proof by a preponderance of the evidence, that the evidence of perinatal asphyxia being the cause of Michaela’s problem far outweighs the testimony of Defendant’s witnesses, who cannot state a cause. Moreover, for the reasons discussed supra, the Court finds Plaintiffs’ witnesses more reliable than Defendant’s, and for reasons discussed infra, finds Defendant’s theories suggesting that other causes explain Mi-chaela’s condition or that Dr. Epstein’s delay was justified completely unpersuasive. Therefore, it appears that Plaintiff has met its burden of proof by a preponderance of the evidence.
The Court recognizes that there was probably not enough time between delivery and intubation to cause the severe brain damage that Michaela has experienced. However, in any tort claim, a Defendant takes a Plaintiff as he finds her. Failure to intubate Michaela promptly occurred when Michaela was in a highly depressed condition. In the course of labor Mrs. King had been given two dosages of Nisen-til in relatively close proximity, first through an IV and then subcutaneously. Though witnesses on both sides generally agree that giving the Nisentil was not a breach of the standard of care, the physicians acknowledge that Nisentil has a respiratory depressant effect on adults. Dr. Miller’s testimony was that Nisentil is passed through the placenta to a fetus, on whom it would have the same effect. When the second dose was given, no one foresaw that Mrs. King would deliver so soon thereafter. During the very rapid final stage of labor and the delivery, the Nisentil was at peak potence, as testimony clearly demonstrated. Its respiratory depressant effect cannot be ignored. More probably than not, it stopped Michaela’s heart. At what point is uncertain, but the Court finds that her heart was stopped sometime before she was born.
Nurse Kinnaird testified that Michaela was born perfectly normal and that something happened in the first minute of her life to cause her heart to stop. However, this testimony is inconsistent with Dr. Epstein’s, who described Michaela as cyanotic at birth and stated that he first knew something was wrong when he saw she was not gaining tone or breathing. His testimony, more consistent with all the facts surrounding her birth, indicates that Michaela was born without respiration.
In addition, Narcan, which Drs. Lawrence, Epstein and Mezoff testified should have been promptly administered to counteract the effects of Nisentil, was not given until 9 minutes after birth. Respiration having finally been started, the drug by then had very little effect.
One of Defendant’s arguments is that Michaela’s condition at birth can be treated as the basis for an inference that she had a metabolic or genetic problem. As Dr. Sunshine asserted, children with underlying genetic or metabolic problems do not tolerate the birth process well. However, the preponderance of testimony indicates that Mi-chaela tolerated the birth process well. Defendant’s witnesses testified without exception that Michaela’s heart monitor strip did not show alarming patterns. Up to 6-7 minutes before her birth, Michaela was tolerating the process. It was only after the second dose of a potent narcotic, at its peak in the final stages of labor, that Michaela was unable to tolerate the birth process well. That provides no basis for an inference that she suffers a metabolic or genetic disorder.
Defendant also argues that Michaela’s condition was a surprise, and that the staff could not have been expected to anticipate it. Surprise, they argue, is a basis for the delay. The Court rejects this argument for several reasons. First, considering the recent administration of Nisentil, there was reason to expect respiratory depression in Michaela. In addition, Dr. Epstein had the opportunity to closely observe Michaela as he suctioned her and to feel her tone and condition as he dried and draped her with towels. Therefore, before the one minute APGAR, he had the opportunity to determine her condition. As Dr. Lawrence testified, if a child is born cyanotic, lacks tone and does not cry, a doctor should be concerned and check the heartbeat before the one minute APGAR.
Finally, the delivery room was equipped for emergencies. Everything Dr. Epstein needed for emergencies, anticipated or otherwise, was available. He had been trained in the necessary procedures and knew intu-bation was appropriate, as is apparent in the fact that he had the equipment out when Dr. Caro arrived.
Standards read by Plaintiff’s counsel and acknowledged by Dr. Epstein indicated that intubation should have been done immediately. Even Defendant’s witnesses indicated that, at most, there should have been a two-minute delay in intubation. A two-minute delay could possibly be explained by surprise, but might well constitute malpractice; a five-minute delay, in a situation in which every second was vital, particularly in the later stages, cannot be explained or justified.
The Court finds that there was malpractice in not intubating Michaela within, at a maximum, one and a half minutes after birth. That would have allowed for detection of the problem, cardiac massage, and even 30 seconds of bag and mask. Moreover, the Court finds that there was malpractice in not administering Narcan promptly to counteract the effects of Ni-sentil.
Finally the Court concludes that this malpractice is a proximate cause of Michaela’s current injuries. It is stipulated that Mi-chaela was not intubated until 11:37, six minutes after her birth. The Court recognizes that six minutes alone could probably not cause brain damage. Defendant took Michaela as it found her. She was in a state of respiratory depression, her heart stopped from the effects of Nisentil, at the time she was born. She had been in that condition for an uncertain amount of time, but something between 6-11 minutes. Such lack of oxygen for 12-17 minutes could and, the preponderance of the evidence shows, did cause Michaela’s injuries.
VI
In determining damages, the Court must consider separately the damages of Lucinda E. King and Robert W. King individually, and the damages to Lucinda E. King, Conservator for Michaela King, a minor.
A. Damages of Lucinda E. King and Robert W. King
The parents, Lucinda and Robert King, are entitled to only past economic and non-economic damages. M.C.L.A. § 600.6305(1). The Plaintiffs stipulated at the time of trial that they were entitled to no future damages.
The parties agree that past economic damages total $346,918.00. However, the parties do not identify what is contained in that figure. The Court infers from Plaintiff’s expert, Dr. Hoerneman, and from Ex. 103, that past home care alone constitutes the $346,918.00 figure. Defendant’s expert, Dr. Eisenstadt, does not break down that amount, but Defendant argues that only $25.00/month is recoverable, because of Michigan’s collateral source statute.
M.C.L.A. § 600.6303, relating to collateral source benefits, provides in pertinent part as follows:
(1) In a personal injury action in which the plaintiff seeks to recover for the expense of medical care, rehabilitation services, loss of earnings, loss of earning capacity, or other economic loss, evidence to establish that the expense or loss was paid or is payable, in whole or in part, by a collateral source shall be admissible to the court in which the action was brought after a verdict for the plaintiff, and before a judgment is entered on the verdict. Subject to subsection (5), if the court determines that all or part of the plaintiff’s expense or loss has been paid or is payable by a collateral source, the court shall reduce that portion of the judgment which represents damages paid or payable by a collateral source....
(4) As used in this section, “collateral source” means benefits received or receivable from an insurance policy; benefits payable pursuant to a contract with a health care corporation.... Collateral source does not include life insurance benefits or benefits paid by a person ... entitled by law to a lien against the proceeds of a recovery by a plaintiff in a civil action for damages....
(5) For purposes of this section, benefits from a collateral source shall not be considered payable or receivable unless the court makes a determination that there is a previously existing contractual or statutory obligation on the part of the collateral source to pay the benefits.
It is clear that this Statute is applicable in this case because, under 10 U.S.C. §§ 1076 and 1077, the military is required to provide medical and dental care for dependents of members of the Armed Forces.
To the extent that the $346,918.00 figure includes medical and other expenses already compensated for by a collateral source, Plaintiffs’ recovery of those damages is clearly precluded. Mr. and Mrs. King testified that all their medical expenses, except for a $25.00 per month deductible, were paid by Champús, the health care plan for the military. The military has paid for prescriptions, necessary equipment and even Michaela’s diapers. The few expenses not covered by Champús, such as the cost of Michaela’s prosthetic shoes have been covered by other sources, such as the Crippled Children’s Fund. None of these covered costs can be awarded in the Court’s judgment because of the Michigan collateral source rule.
However, Plaintiffs have clearly paid a $25.00/month deductible. That is recoverable as a past economic damage. Up to the date of judgment, that figure would be $1,575.00.
In addition, the parents have provided Michaela with attendant care. As Mrs. King testified, Michaela’s care requires special training, and she stated that it was 24-hour care. Caring for Michaela was and is not the same as caring for a child without disabilities. She testified that the burden of that care falls on her and her husband. As discussed infra, this Court will be awarding future economic damages for attendant care. It follows that attendant care should also be recognized as a past damage. The Kings’ testimony indicated that they did not attend to Michaela at all times; for example, they did not watch her in her sleep, though they checked on her at midnight and again at 6:00 a.m. The Court finds that their testimony establishes that they provided Mi-chaela attendant care for, at a reasonable minimum, 15 hours a day. The Court further finds them entitled to compensation for their time. Testimony in regard to future attendant care suggested that $9.00 an hour was the appropriate figure for computation. In light of that, the Court determines that $8.00 an hour is a reasonable figure for Michaela’s past attendant care. The Court awards Mr. and Mrs. King $219,000.00 for past attendant care.
The Court will therefore award Mr. and Mrs. King a judgment in the amount of $220,575.00.
B. Damages for Lucinda King, Conservator for Michaela, a Minor
The Court must now turn its attention to the proper damage award for Lucinda King, conservator for Michaela King, a minor. Here, the Court will first consider future damages. These include medical and other costs of health care, lost wages or earning capacity and noneconomic loss.
The first step the Court múst take in addressing future damages is determining Michaela’s life expectancy. There was a great deal of evidence regarding Michae-la’s life expectancy. Defendant made reference to a study by Eryman indicating that incontinent, retarded, immobile individuals can be expected to have a life expectancy of only five years. The Court does not find this study applicable to Michaela. First, Michaela is not immobile; she has the capacity to scoot. Second, the extent of her retardation is not determinable. Determinations introduced by Mr. Curtis, an annuitist, suggested that Michaela could live longer than 50 years. The Court is convinced that more probably than not Mi-chaela will live longer than 5 years, but not as long as 50 years. Testimony was clear that children in her condition are more prone to sickness and disease. Testimony was also clear that children who get good care from loving family members, like Mi-chaela does, are likely to live longer. In light of all the evidence on life expectancy, the Court determines that 30 years is a reasonable life expectancy for Michaela.
The first category to consider is Michae-la’s medical and other costs of health care. Though all of Michaela’s medical costs have been paid by Champús, there is no indication that future costs will be paid by Champús. Mr. King clearly testified that he would like to leave the military for civilian employment. The Court will not assume that Mr. King will stay in the military. In addition, Michaela’s condition is such that no private insurance carrier is likely to pick her up. The Court will treat all proven future medical and health care costs as future damages.
Plaintiff presented the proof of several witnesses to support its future medical damage claims. Mrs. King, Ms. Engle-hardt, Dr. Marriner and Ms. Nelson testified regarding Michaela’s therapy, attendant care, equipment and communication needs. Dr. Yallarta reinforced all their testimony, and described her own view of Miehaela’s medical and health needs. In response, Defendant presented the testimony of Dr. McLaughlin, who basically contended that Michaela’s therapy needs were adequately met by the public schools. However, Dr. McLaughlin had not visited Michaela’s school and could not testify about the specific facilities at Custer School, where Michaela attends.
On items other than attendant care, therapy and augmentative communication, there was little to no difference between Plaintiff and Defendant. It is the opinion of this Court that Plaintiff has met her burden of proof in establishing the future medical and health care damages she claims. For a 30 year life expectancy, those damages total $7,198,863.12. When reduced to present value using a 5% simple interest calculation, those damages total $2,284,928.00. A breakdown of the damages by year, as required by M.C.L.A. § 600.6305(l)(b) is contained in Appendix III.
Plaintiff’s expert, Dr. Hoerneman argued that inflation should be factored in at a compounded rate, and the reduction to present value should be done by a simple rate. It is apparent to the Court that this contention is unsupported by the statute, which does not provide for inflation, and is an attempt to inflate damages unfairly. The Court rejects Dr. Hoerneman’s analysis. The Michigan 5% method, as Defendant’s expert, Dr. Eisenstadt, effectively demonstrated parallels real world economic models and results in amounts similar to what would be paid on annuities by reputable financial companies. The Court’s damage award follows the Michigan 5% method as outlined by Dr. Eisenstadt.
The next category is loss of earnings and earning potential. Both economic experts relied on the same figures to determine lost earnings. But, for the reasons discussed above, the Court finds Plaintiff’s final figure unreliably inflated. It therefore adopts Defendant’s figure for lost earnings and earning capacity, awarding Michaela $223,-976.00 for lost earnings and earning capacity. That figure is reduced to present value. A breakdown of the damages by year, as required by M.C.L.A. § 600.6305(l)(b) is contained in Appendix III.
Finally, the Court must determine the amount of noneconomic damages. Non-economic damages in this case are based on Michaela’s disability, disfigurement and pain and suffering. The video demonstrating her great physical limitations underscore the extent of her disability. There was a great deal of testimony regarding her limited capacities for meaningful movement, for communication, and for normal human progress. She will spend her life in special schools, in various kinds of therapy, and will require special equipment for ordinary tasks such as eating and communicating. There is no question that she has a compensable disability. Her disfigurement is minimal, but she does suffer some. Her eyes do not focus and she requires special shoes. She is in a state of constant motion. Finally, it is difficult to assess her pain and suffering. She will not live a life like her sister and brother. But Dr. Menkes testified that it is difficult to estimate her intelligence. It is unclear whether she will be aware of the differences. Fortunately, Dr. Yallarta testified that Michaela is a happy child. Her mother described smiles, and the Court observed her smiles and the good care she receives in the video presented as Ex. 90.
The Plaintiff seeks $2,000,000.00 in non-economic damages, past and future. The Court finds that this is a reasonable figure establi