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Judge Claims Negligence Caused Baby’s Brain Damage; Awards Family $33.8 Million

What was supposed to be the happiest day of Marla Dixon’s life turned into the worst because of the alleged negligence of the on-call OB/GYN, which led to the severe brain damage of her child, Earl Jr. After a two-week trial in federal court, U.S. District Judge Robert Scola found in favor of Dixon and Earl Reese-Thornton, the baby’s father. The malpractice lawsuit was filed under the Federal Tort Claims Act because Dr. Ata Atogho, the attending physician, was an employee of the federally funded Jesse Trice Community Health Center, which services undocumented, uninsured, and underinsured communities. Judge Scola awarded the family $33,813,495 in damages.

On December 2, 2013 Dixon, then 19-years-old, arrived at the North Shore Medical Center in Miami, Florida to deliver her first child. The mother and child were both in good health before the delivery and no complications were expected. But during the course of the delivery the unborn child was diagnosed with a category 3 fetal heart rate, which means that the baby is not receiving enough oxygen and/or blood. In this type of fetal distress, protocol dictates that a cesarean section should be administered immediately.

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Dr. Ata Atogho claims that he advised this course of action, but Dixon refused. However, according to Yolande McCray, the nurse present during the delivery, Atogho never recommended a cesarean section and then lied on the forms when he wrote that Dixon had refused a C-section. Court documents also claim that Atogho left the room at a critical juncture to take a call from his financial advisor. McCray, Dixon, and Reese-Thornton testified independently that Dixon screamed, “Just cut me! I want to be cut! I can’t do this anymore!”

When Atogho returned to the delivery room he allegedly ignored these requests and used a “Kiwi” vacuum system to aid in the extraction of the baby. But by then it was already too late. When the baby was born, he had gone without oxygen for too long and the brain damage was irreversible. Expert witnesses claimed that the child, now three-years old, will only live an additional 9 – 12 years and maybe less. Of the $33.8 million in damages, $29.4 million was awarded to the child for past and future economic and non-economic damages, $3.3 million to Marla Dixon, and $1.1 million to Earl Reese-Thornton.

“This is a tragic case,” said the attorney representing the family. “While it is impossible to change what has occurred to this family, it is satisfying that baby Earl’s medical and financial needs will be met for the rest of his life.” However, according to the same lawyer, “The U.S. Government has not accepted responsibility and has threatened to appeal,” which could hold up payment and the medical care needed to extend the child’s life.

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