Trial starts tomorrow, February 3rd, in Cudney v. United States, U.S. District Court for the District of Utah, #1:17-CV-00190DBP (Magistrate Judge Dustin B. Pead). This is a birth injury claim.​

Shoulder dystocia is an obstetric emergency where the fetal shoulder lodges on the mother’s pelvic bone after the baby’s head is already out. In this case, it resulted in a severe brachial plexus injury (Erb’s Palsy), a permanent paralysis of the spinal nerve roots to the arm. 

W.A.N. was born in April 2016 at McKay-Dee Hospital in Ogden via vacuum-assisted vaginal delivery. He was a very large baby at 12 lbs. Plaintiff, W.A.N.’s mother, Kaitlyn Cudney, claims that this child should have been delivered by C-section and that if that had been done, this injury would never have occurred. The claim is that Kaitlyn should not have been considered for vaginal delivery because she had a large baby with shoulder dystocia in her prior delivery; because a prenatal ultrasound three weeks before W.A.N.’s delivery revealed fetal macrosomia (excessive size), and because her fundal height was off the charts by the date of delivery, again a warning of a huge baby.

Both the family practitioner who managed the pregnancy and the obstetrician who delivered W.A.N. are claimed to have been substandard. The family practitioner– by not taking further steps to assess fetal size by ultrasound or palpation, and by not counseling for a C-section. The obstetrician– by not appreciating the unlikelihood of a successful vaginal delivery, by allowing Ms. Cudney to labor at all and for too long, and by inappropriately using vacuum assistance for delivery of the fetal head.

The defense contends that a late-term ultrasound was done by an outside specialist, and it showed an estimated fetal weight appropriate for vaginal delivery. The treating doctors were entitled to rely on this. And there was no gestational diabetes (which would increase the risk for an over-large baby). That Ms. Cudney had delivered an earlier big baby with shoulder dystocia did not rule out vaginal delivery: ACOG standards provide that universal cesarean delivery is not recommended just because of a history of dystocia in an earlier pregnancy. 

Plaintiff’s experts: Dr. James Balducci (Arizona- obstetrics) and Dr. Beverly VonDer Pool (family medicine).

Defendant’s experts: Dr. Robert Later (Salt Lake- obstetrics) and Dr. Osman Sanyer (Salt Lake- family medicine).

The economic damages claimed are huge. W.A.N. has permanent injuries that severely limit the use of his right arm, and surgeries have not helped much in restoring function. The present value of lost earning capacity claimed by plaintiff is between $3.8M to $5.1M.  Loss of household services are claimed at $1.3M. Past medical bills are $190,000. All told, alleged economic losses are from $3.5M to over $6.4M. As you might expect, the defense hotly contests these numbers, as well as the claim that W.A.N. will always be unemployable.

Procedural Note: ​This is a Federal Tort Claims Act claim, as the physicians are “deemed employees” of the United States Public Health Service through their employment with Midtown Community Health Center in Ogden, a “Federally Qualified Health Center” under the Public Health Service Act. (Here’s a useful 2019 summary on the FTCA from the Congressional Research Service.)  As the reader probably knows, there is no right to a jury trial under 28 USC Sec. 2402 and 32 CFR Sec. 750.32, so all decisions on fault and damages in this action will be made by the Magistrate Judge.

Personal Injury Attorney CounselZev Gershon and Randal Getz (Baltimore, MD) for plaintiffs; Jeff Nelson and Melinda Shiraldi, Assistant United States Attorneys, for defendant.
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