Veasley ex rel. Veasley v. United States

Citations: 201 F. Supp. 3d 1190; 2016 U.S. Dist. LEXIS 107113; 2016 WL 4262186Docket: CASE NO. 12-cv-3053-WQH-WVG

Court: District Court, S.D. California; August 12, 2016; Federal District Court

SummaryOriginalCytator Case TreatmentBackward CitatorAnalysis

EnglishEspañolSimplified EnglishEspañol Fácil

The Court, presided over by Judge Hayes, addresses findings related to a medical negligence claim brought by the plaintiffs against the United States under the Federal Tort Claims Act. The case centers on Mildred Veasley, who sought the insertion of a Mirena intrauterine device (IUD) at the Naval Hospital Camp Pendleton after consulting with Dr. Jennifer Almy. During her initial consultation on July 31, 2008, Veasley indicated her last menstrual period began on July 16, 2008, and stated she had been using condoms for contraception. Dr. Almy advised her to abstain from sexual intercourse for two weeks prior to the IUD insertion, which Veasley testified she followed.

On September 9, 2008, when Veasley returned for the IUD insertion, she reported her last menstrual period started on August 12, 2008, and was concerned she might be pregnant. Despite this, no inquiries were made about her sexual activity since her last appointment. Veasley took a urine pregnancy test, which was negative, leading her to believe she was not pregnant. Dr. Almy, lacking specific recollection of Veasley, stated her practice involved assuming a negative test was accurate, based on Veasley's previous menstrual cycle. She acknowledged that inserting an IUD when pregnancy is undetermined poses risks and confirmed the importance of adhering to the manufacturer's guidelines, which recommend inserting the IUD within seven days of menstruation. Dr. Almy did not inquire about Veasley’s sexual activities prior to the IUD insertion, despite knowing that pregnancy posed a contraindication for the procedure.

Dr. Almy, during testimony, acknowledged the importance of patient inquiries regarding sexual history and contraceptive use prior to an IUD insertion. However, he stated that he did not specifically ask these questions at the time of a patient's IUD insertion, although he typically addresses questions and concerns beforehand. He indicated that if a patient had reported sexual intercourse just before the insertion, he would have postponed the procedure. Following the insertion, Dr. Almy instructed the patient, Mrs. Veasley, on how to check for the IUD strings, which she later could not feel. 

On October 30, 2008, Veasley, concerned about her inability to feel the strings and experiencing abdominal growth, consulted NHCP. Dr. Chrisanna Johnson examined her the next day, confirming her pregnancy but noted the absence of visible IUD strings or the IUD itself during an ultrasound. Dr. Johnson advised against attempting to remove the IUD due to miscarriage risks. 

During a follow-up on November 12, 2008, Dr. Elizabeth Beazley recorded Veasley's last menstrual period (LMP) as August 15, 2008, and noted a possibly retained IUD. An ultrasound on November 24, 2008, confirmed no IUD was visualized and showed a normally developing fetus estimated at 15 weeks gestational age. 

Veasley returned to NHCP's Labor and Delivery Unit on January 11, 2009, with cramping but no signs of bleeding or contractions; she was discharged with preterm labor precautions. The following day, she returned with complaints of vaginal bleeding and cramping.

Veasley was evaluated by Dr. Darin Rolfe, a family practice resident, with Dr. David Lifset, an obstetrician, overseeing the visit. The medical record noted that fetal monitoring indicated uterine contractions, but the cervix remained closed and long after several hours. The doctors ruled out infection and serious placental issues. Veasley had a history of an IUD and discovered her pregnancy at three months. She was advised to seek medical attention for any future vaginal bleeding or pelvic cramping and was discharged after the visit.

On January 12, 2009, Veasley reported cramping and a gush of blood to the Labor and Delivery Unit (LDU) and spoke with Nurse Gillian Alvarez, who consulted with Dr. Nicole Sharkey and Certified Nurse Midwife Bridget Moran. Alvarez instructed her to monitor her symptoms and rest. Later that evening, Veasley presented to the LDU with vaginal bleeding and cramping. Upon examination, bright red blood was noted, but the cervical os remained closed, and uterine contractions were observed. A transvaginal ultrasound performed by Dr. Sharkey indicated that the placenta was low-lying but clear of the os. Veasley was monitored and discharged with instructions for rest and a follow-up ultrasound at 24-25 weeks gestation.

On January 22, 2009, an ultrasound confirmed the placenta was clear of the cervical os, and her cervix was closed. During a follow-up on January 23, 2009, with Dr. Beazley at the family practice clinic, Veasley reported minimal vaginal bleeding and cramping. An examination found her cervical os was long and closed, and no complications were identified. Dr. Beazley advised continued bed rest and pelvic rest for the remainder of the pregnancy, planning to consult an obstetrician in the third trimester for a repeat Cesarean section. On January 25, 2009, Veasley returned to the LDU with ongoing cramping, contractions, vaginal bleeding, and passing blood clots.

Dr. Mark Lund conducted a pelvic examination of Veasley on January 26, 2009, at 1:13 a.m., noting a small drip of blood from the cervical os and bright red vaginal bleeding. The cervix was long and closed, with the tocometer indicating irregular uterine contractions. The medical note recorded that while spotting was normal, the clot was not. The estimated gestational age was 23 weeks and 2 days, consistent with prior ultrasound findings. Veasley was advised to remain on bed rest, hydrate, and return in two days or sooner if her condition worsened. 

On January 28, 2009, Veasley returned to the Labor and Delivery Unit (LDU) reporting increased painful contractions and vaginal bleeding, now extensive enough to soak two pads daily. Dr. Todd Quackenbush noted contractions every three to five minutes, and Dr. Lifset, the attending physician, confirmed bleeding from the cervical os and a long, closed cervix. Veasley rated her pain as ten out of ten. Despite the situation, Dr. Lifset found no signs of abruptio placentae or preterm labor and decided to send Veasley home, recommending continued bed rest and follow-up care. 

After her discharge, Veasley experienced less severe pain, manageable with Tylenol, but reported significant vaginal bleeding by January 29. On January 30, her pain escalated to severe levels, prompting her to contact the LDU for stronger pain relief. Testimony from her mother indicated that Veasley was in significant pain leading up to this call.

Veasley reported that the LDU informed her there was no assistance they could provide beyond continuing to take Tylenol, advising her to come in if needed. Following the call, she experienced severe and unbearable pain, prompting her to feel an urgent need to push. Brianna Veasley was born around 8:15 a.m., after which Ronald Veasley called 911 and received guidance on caring for the newborn until the ambulance arrived at approximately 8:24 a.m. An air ambulance subsequently transported Brianna to Rady Children’s Hospital San Diego.

Veasley was taken to NHCP, where she expelled two large clots and a Mirena IUD. Pathology revealed acute chorioamnionitis in her placenta. Brianna was born at an estimated gestational age of 23 weeks and 6 days, weighing one pound, eight ounces, qualifying her as both extremely premature and of extremely low birth weight according to WHO standards. She was hospitalized from January 30 to March 9, 2009, at Rady, then transferred to Naval Medical Center San Diego until June 3, 2009, and readmitted to Naval on June 9, later returning to Rady until August 20, 2009. 

Due to her extreme prematurity and low birth weight, Brianna faced numerous medical issues, including cerebellar hemorrhage, respiratory distress syndrome, pneumonia, and others. She required a gastrostomy tube from August 2009 until April 2011 and underwent ophthalmologic surgery. Her extreme prematurity was a significant factor in her development of severe to profound mental retardation, which will likely prevent her from achieving competitive employment or living independently.

Brianna’s claim for past medical expenses includes her MediCal lien. Under the Federal Tort Claims Act (FTCA), the U.S. can be liable for personal injuries caused by government employees' negligence if a private person would be liable under state law. In California, to prove medical negligence, plaintiffs must establish a professional duty of care, a breach of that duty, a causal connection between the breach and injury, and actual damages resulting from the negligence.

Defendant acknowledged a duty of care to Plaintiffs in a medical malpractice case, which requires physicians to demonstrate a reasonable degree of skill, knowledge, and care. Expert testimony is essential to establish whether the standard of care was met, except in cases of obvious negligence. Medical professionals are not held liable for errors in judgment if they act within the reasonable standards of their profession and do not guarantee results. In personal injury cases, causation must be proven with competent expert testimony, demonstrating that an injury is more likely than not a result of the defendant's actions, rather than merely a possibility.

In the specific context of IUD insertion, expert witnesses agreed that a healthcare provider must reasonably rule out pregnancy prior to the procedure. Dr. Albert Phillips, the Plaintiffs' obstetrical expert, testified that Dr. Almy breached this standard by placing the IUD without sufficient certainty that the patient was not pregnant. Dr. Phillips emphasized that the timing of the IUD insertion is critical, advising that it should occur only during the menstrual cycle or immediately following it to avoid the risk of inserting the device during a potential ovulation period. The patient's recent childbirth further complicated the certainty of her ovulation status, reinforcing the need for caution.

Dr. Phillips provided testimony regarding female ovulation, stating it typically occurs on the 14th day of a 28-day menstrual cycle, with pregnancy possible only on the day of ovulation. He explained that ovulation marks the beginning of the luteal phase, during which progesterone is produced. Pregnancy can be detected by a urine test approximately 10 to 11 days after conception, as the hormone beta hCG becomes detectable. He noted that while a standard cycle is 28 days, variations can range from 21 to 40 days, affecting ovulation timing. Sperm can survive up to seven days, allowing for potential conception from intercourse days prior to ovulation.

Regarding the insertion of an IUD, Dr. Phillips stated that the standard of care is to insert it either during menstruation or within seven days after the menstrual cycle begins, as this timing provides reasonable assurance against existing pregnancy. He expressed concern that Dr. Almy relied on a negative pregnancy test in a patient still in the luteal phase without an established menstrual cycle, as a negative result does not definitively rule out pregnancy.

Dr. Kingston, the defense's obstetrical expert, supported Dr. Almy's actions, highlighting that she documented a regular menstrual history, instructed the patient to abstain from intercourse prior to IUD insertion, and confirmed a negative urine pregnancy test. Kingston asserted that the standard of care permits IUD placement at any time, provided that pregnancy is reasonably excluded. She also explained the LH peak, which occurs 12 to 24 hours before ovulation, as part of the ovulation process.

Dr. Kingston provided expert testimony regarding the timing and reliability of urine pregnancy tests in relation to ovulation and implantation. He identified the LH peak as the most accurate clinical indicator for high hCG levels, which correlate with positive pregnancy test results. Implantation typically occurs six to seven days post-LH peak, and a urine pregnancy test with a sensitivity of 25 IU/L may yield positive results 10 to 12 days after the LH peak, becoming more reliable as the luteal phase progresses. Specifically, by three to four days after implantation, the test can show a positive result, with a 98% positivity rate by seven days post-implantation. 

Dr. Kingston stated that by day 29 of Ms. Veasley’s cycle, Dr. Almy could reasonably conclude she was not pregnant based on a negative test result, assuming an average 30-day cycle where ovulation would occur around day 16. He emphasized that a doctor should not rely on the pregnancy test alone for clinical decisions regarding IUD placement; other factors, such as the date of the last menstrual period and the patient's birth control history, must be considered. The standard of care dictates that a physician should inquire about the patient's sexual history, particularly if unprotected intercourse occurred near the time of ovulation, to inform decisions about potential pregnancy and IUD insertion.

Plaintiffs argue that Dr. Almy breached the standard of care by failing to adequately rule out pregnancy before inserting the Mirena IUD on September 9, 2008. They assert that the insertion, occurring twenty-nine days after the start of Veasley’s last menstrual period (LMP), contradicted the manufacturer's recommendations, NHCP Family Medicine Department Policy, and Dr. Almy's own practices. Plaintiffs claim it was premature to rely solely on a negative urine pregnancy test and that Dr. Almy should have taken a sexual history from Veasley prior to the procedure.

In contrast, the defendant contends that Dr. Almy adhered to the standard of care by reasonably ruling out pregnancy, similar to practices of other careful providers. The defendant argues that many providers do not restrict IUD placements to the first seven days of the menstrual cycle and that the standard of care permitted reliance on the urine pregnancy test results. Furthermore, Dr. Almy stated she had counseled Veasley on contraceptive methods during her previous visit and believed Veasley was following that guidance.

Expert testimonies from both parties indicate agreement that ruling out pregnancy is necessary before IUD insertion. Dr. Almy claimed that a negative urine test at the appointment ensured she could reasonably conclude Veasley was not pregnant. Expert Dr. Phillips emphasized that the IUD should ideally be placed during the menstrual cycle or within the first seven days afterward to ensure no pregnancy has occurred. He noted that a negative pregnancy test does not always rule out pregnancy, as conception could occur shortly before testing. Another expert, Dr. Kingston, supported the view that IUD placement is permissible at any time during the menstrual cycle, provided pregnancy is reasonably excluded.

Dr. Kingston testified regarding the reliability of urine pregnancy tests in the context of patient history when evaluating potential pregnancy. He stated that a physician should consider a patient's menstrual and contraceptive history, emphasizing that the reliability of a urine pregnancy test increases as a woman progresses in her luteal phase. Specifically, he noted that if Ms. Veasley was on a 28-day cycle, a urine test taken on day 29 should be positive if she were pregnant. However, he pointed out that Dr. Almy should have considered Veasley’s sexual history, particularly any intercourse close to ovulation, when deciding to insert the IUD on September 9, 2008. 

Veasley was not menstruating at the time of her appointment, and her period would have been late if she had a consistent 27- or 28-day cycle. She reported having intercourse on August 23 or 24 and indicated suspicion of pregnancy during her appointment. Importantly, no questions regarding her sexual activity between her last visit and the September appointment were asked. The urine pregnancy test administered returned negative, leading to the IUD insertion. 

Experts agreed that urine pregnancy tests are not reliable in early pregnancy stages and can detect pregnancy about three to four days post-implantation. Dr. Kingston confirmed that while a urine test at seven days post-implantation is 98% accurate, this information should not be the sole basis for clinical decisions regarding IUD placement; the entire patient history, including recent sexual activity, must be considered. Dr. Phillips cautioned that placing an IUD in a woman who may have ovulated without a menstrual cycle could pose risks if she is indeed pregnant.

Dr. Phillips testified that a negative urine pregnancy test was insufficient to rule out pregnancy in Veasley, as her hCG levels might have been too low for detection. The Court determined that Dr. Almy failed to meet the standard of care by relying solely on the negative test without considering Veasley's complete medical history, including her sexual activity between appointments. This failure resulted in a breach of care when Dr. Almy inserted the IUD without adequately ruling out pregnancy.

Regarding the NHCP personnel's actions in January 2009, Dr. Phillips identified multiple breaches of the standard of care. Firstly, Veasley was incorrectly sent home on January 13 after presenting with vaginal bleeding and cramping, whereas she should have been admitted and treated to stop her contractions. During a follow-up on January 23, Dr. Beazley failed to recognize that Veasley’s bleeding was due to a retained IUD, despite it being noted in her records. Dr. Phillips highlighted that Veasley’s risk level should not have been classified as "uncomplicated," as a pregnancy with a retained IUD is highly complicated. He asserted that Dr. Beazley should have hospitalized Veasley for monitoring on that date. Additionally, Dr. Lund's plan on January 26, which involved watchful waiting and prescribed bed rest and hydration, was deemed non-compliant with the standard of care.

The patient required admission to manage ongoing contractions effectively, especially given the risk of viability for a fetus at 28 weeks and the potential for preterm labor associated with a retained intrauterine device (IUD). Dr. Phillips testified that the standard of care necessitated administering tocolytics to the patient, as their use is appropriate even when the patient is not in active labor or experiencing cervical changes. He emphasized that the retained IUD was likely the cause of the contractions, putting the pregnancy at high risk for complications. 

Dr. Phillips noted that the administration of steroids to accelerate fetal lung maturity would depend on the effectiveness of the tocolytics; if contractions were not controlled and delivery seemed imminent, steroids would be warranted. He criticized the discharge plan from Veasley’s visit on January 28, 2009, explaining that a competent obstetrician should have recognized that the IUD was the source of her issues and that she required aggressive management through admission and tocolytics.

During cross-examination, Dr. Phillips referenced ACOG Practice Bulletin 127, which suggests that tocolytics might sometimes be appropriate before viability; however, he admitted to a lack of specific medical literature recommending the admission and treatment of a patient with a retained IUD experiencing preterm contractions. He characterized such cases as rare, insufficiently documented to support clinical guidelines.

Testimony indicated that conducting a controlled study on administering treatments to pregnant women with an IUD and preterm contractions is inappropriate due to the risk of premature delivery. Dr. Phillips acknowledged his lack of experience with tocolytics in such cases and noted that 80% of women with preterm contractions resolve without intervention. He confirmed that during Veasley's last visit on January 28, 2009, she was not in preterm labor as her cervix was not dilated. 

Dr. Kingston, the defense expert, highlighted that healthcare providers should have been aware of Veasley's pregnancy and the retained IUD, which significantly increases the risk of first-trimester loss to 40-50%, compared to 10-15% in women without an IUD. He explained that the evaluation process for a pregnant patient with a retained IUD remains unchanged, involving appropriate history, physical exams, and lab tests based on presenting complaints. Dr. Kingston concluded that Veasley did not require hospitalization as she did not meet the criteria for preterm labor during her visits, evidenced by normal cervical length and the absence of dilation. He clarified that preterm contractions do not inherently indicate preterm labor and that many women experience contractions without associated risks. Additionally, he asserted that the standard of care did not necessitate treatment with tocolytics, which are typically not recommended before 24 weeks gestation unless preterm birth is imminent without contraindications.

Dr. Kingston testified regarding the administration of tocolytics to pregnant women undergoing intraabdominal surgery, stating that for those less than 24 weeks pregnant, the standard of care does not necessitate tocolytics due to a lack of evidence supporting their effectiveness. According to ACOG Practice Bulletin 127, tocolytics are generally not indicated before neonatal viability, as the associated perinatal morbidity and mortality risks outweigh the maternal risks. 

In cases where a woman has an IUD in place, Dr. Kingston indicated that this would make her less likely to recommend tocolytics, highlighting concerns about intrauterine infection, which can lead to preterm labor and birth. She noted that administering tocolytics in the presence of such an infection could endanger both the mother and the fetus, potentially leading to severe complications, including sepsis.

Dr. Kingston also stated that she was not aware of any reliable medical sources advocating for tocolytics in preterm women with an IUD experiencing contractions but no cervical changes. Additionally, she explained that corticosteroids are not required for patients under 24 weeks gestation unless they are at imminent risk of preterm birth. Corticosteroids are known to accelerate lung maturity and reduce risks associated with prematurity, but evidence for their effectiveness in gestations less than 24 weeks is inconsistent. 

The plaintiffs argue that the defendant failed to meet the standard of care by not admitting Veasley to the hospital and administering tocolytics and antenatal steroids during multiple visits from January 13 to January 28, 2009.

Defendant argued that the standard of care did not necessitate hospital admission or the administration of tocolytics and antenatal steroids for Veasley, who was not in preterm labor and was less than twenty-four weeks gestation when she arrived at the hospital. Dr. Phillips testified that admission and treatment with tocolytics were appropriate, suggesting there might be circumstances for administering such medications prior to twenty-four weeks; however, he lacked supporting medical literature and personal experience in treating similar cases. Dr. Kingston countered that the standard of care did not require these interventions for women below twenty-four weeks gestation or those not in preterm labor, asserting that Veasley did not meet the criteria for admission in January 2009. The Court determined that NHCP personnel did not violate the standard of care by not admitting Veasley or administering tocolytics, as the existing standards allow medical professionals discretion in treatment choices.

Regarding causation, Plaintiffs claimed that absent the insertion of an IUD by Dr. Almy after Veasley became pregnant, her pregnancy would have been normal, and Brianna would have been neurologically normal. The Defendant did not contest the causation related to the IUD insertion. Both parties agreed that Brianna's extreme prematurity was a significant factor in her medical issues. The Court concluded that Dr. Almy's failure to properly rule out pregnancy before IUD insertion substantially contributed to Brianna's premature birth, thus causing harm to both Veasley and Brianna, which entitled the Plaintiffs to damages.

In terms of damages, California Civil Code Section 1431.2(b)(1) defines "economic damages" as objectively verifiable monetary losses, including medical expenses, lost earnings, burial costs, and loss of employment opportunities.

In tort actions, medical expenses are classified as economic damages, reflecting actual financial losses incurred due to the defendant's wrongdoing. The claimant must provide reasonable certainty in proving damages, with speculative or uncertain damages not qualifying for recovery. In this case, Brianna Veasley’s claim for past medical expenses is agreed to be $1,875.41, corresponding to her Medi-Cal lien, which the Court has approved for recovery.

For extraordinary parental care, the plaintiffs seek $180,961.70 based on testimony from Mildred and Rodney Veasley. The defendant challenges this amount, arguing it lacks sufficient explanation. The parties have agreed that if the Court rules in favor of Brianna regarding negligence and causation, she can recover the reasonable value of family-provided nursing care without needing out-of-pocket expenditures. This recovery is based on the cost of professional nursing services that would have been employed instead.

Testimonies indicate that Rodney Veasley dedicates about one hour daily to caring for Brianna, while Mildred Veasley provides three to four additional hours daily compared to her care for her other children. Mildred detailed her caregiving tasks, such as feeding, changing clothes and diapers, monitoring Brianna for safety, and managing her sleep issues. Brianna spent approximately eight months in the hospital following her birth.

Plaintiffs are awarded $180,961.70 for the reasonable value of services provided to Brianna, calculated at an hourly rate of $18.86, as determined by the life care plan developed by Carol Hyland, the Plaintiffs' life care planner. The Court emphasizes the necessity of discounting damages for future wages or expenses to present value, considering both the potential earnings from investment and the impact of inflation to ensure adequate compensation. The methodology for determining present value involves calculating the difference between market interest rates and inflation rates, using the real interest rate for discounting. Testimony from the parties' economic experts reveals differing approaches to calculating the net discount rate: Plaintiff's expert, Robert Johnson, used a 4.5% interest rate based on historical averages of 90-day U.S. government bonds, favoring flexibility and responsiveness to inflation. Conversely, Defendant's expert, Laura Dolan, utilized a 5.85% interest rate based on a mix of historical and current data for five-year treasury bonds. Both experts agreed on the importance of adjusting for inflation and wage growth in determining the net discount rate.

Dolan's testimony regarding the determination of the interest rate emphasizes her preference for historical data from the 1970s through the 2000s over the 1950s and 1960s, stating that current interest rates are less relevant due to the long-term nature of the calculations, particularly considering Brianna's age and life expectancy of over 60 years. She advocates for using five-year government bonds as a safe investment for long-term calculations, rejecting the idea of investing exclusively in one instrument. Plaintiffs challenge Dolan's credibility, arguing she did not document the weight given to different time periods when formulating the interest rate. The defendant argues against Johnson’s use of short-term treasury bonds, claiming it skews present value calculations. However, the Court finds Dolan's methodology credible, supporting the use of five-year treasury bonds for determining the interest rate, concluding it should be set at 5.85%. 

Regarding wage growth, Johnson estimates it at 4.1%, derived from average weekly earnings data from 1950 to 2014, leading to a net discount rate of 0.4% after subtracting his interest rate of 4.5%. In contrast, Dolan calculates wage growth at 3.1% based on U.S. Census Bureau data for women with associate degrees over the past 25 years, comparing it with historical yields on intermediate government bonds while also considering current and forecasted data.

Dolan calculated a net discount rate of 2.75% for a woman with an associate's degree by subtracting a wage growth rate of 3.1% from an interest rate of 5.85%. For a woman with a bachelor's degree, she used a net discount rate of 2.5%. The Court found Dolan’s testimony credible, favoring wage growth data from the U.S. Census Bureau for women with bachelor's degrees over broader industry data, concluding that 2.5% is appropriate for Brianna's loss of earning capacity award. 

Johnson analyzed inflation rates for lifecare plans, separating them into medical and non-medical components. He relied on the medical consumer price index, reporting an average global inflation of 5.4% for medical goods and services from 1950 to 2014. Using a conservative approach, he applied this lower rate to calculate a 0.9% net discount rate for medical inflation by subtracting it from a 4.5% interest rate. 

For non-medical care costs, Johnson determined an inflation rate of 3.7%, yielding a 0.8% net discount rate. Dolan calculated various net discount rates for different care categories in the lifecare plan, determining rates of 2.0% for physician services, 0% for emergency room admissions, and 3.5% for medical equipment supplies, explaining that rates reflect differing price increase trends over time.

Dolan utilized data from the consumer price index to project growth in various categories, determining a 3.0% net discount rate for attendant care based on two sources: the Home Care Salary Benefits Report and the Bureau of Labor’s Occupational Employment Statistics. She noted that wage growth for at-home caregivers has been slower than inflation. Although Dolan acknowledged that simplifying the categories of net discount rates could be easier, she emphasized the importance of detailed analysis for accuracy in her calculations.

Plaintiffs challenged Dolan’s use of the Home Care Salary Benefits Report, arguing that it relied on outdated national data prior to 2012 and did not account for a law enacted on January 1, 2014, requiring minimum wage and overtime for home care workers, which led to significant cost increases. The Defendant argued that this legal change was a one-time event and that future wage inflation would follow historical trends, asserting that the costs estimated in their life care plan already considered these factors.

The Court found Dolan’s methodology credible and more precise than a simplified two-category approach. It acknowledged the law change but deemed it a singular occurrence, with both parties’ life care plans reflecting this cost adjustment. Ultimately, the Court concluded that Dolan’s reliance on the Home Care Salary Benefits Report was reasonable and that the inflation rates she calculated were appropriate. It affirmed that the interest rate, wage growth rate, and inflation rates determined by Dolan were justifiable and ensured adequate compensation for the Plaintiffs without underestimating inflation effects.

Inflation must be considered to ensure adequate compensation for the plaintiff, with net discount rates set by Dolan used to calculate present value of damages. Under California law, Brianna can recover objectively verifiable monetary losses, including medical expenses, while speculative damages are not permissible. Expert testimony from Dr. William Weiss, a pediatric neurologist, indicated that Brianna's life expectancy is normal, estimated at 79.5 years, based on her ambulatory status and lack of severe medical issues. He noted her communication difficulties could be mitigated with attendant care but subtracted a year or two from her life expectancy due to these challenges. In contrast, Dr. Steven Day, a statistician and epidemiologist, estimated Brianna's life expectancy at 68.1 years, relying on studies pertaining to individuals with intellectual disabilities, which indicated greater risks of early death from various health issues. Dr. Day did not physically examine Brianna but based his assessment on her medical records and relevant mortality studies. Evidence presented at trial confirmed Brianna's current good health, ability to walk, and self-feeding skills, with no hospitalizations since 2010 and no medications.

Brianna is determined to have a profound cognitive delay that negatively impacts her life expectancy, which is established at 68.1 years. Expert testimony from Dr. Day, specializing in mortality and life expectancy, is deemed credible by the Court, leading to a conclusion that Brianna's inability to communicate will further lower her life expectancy. Dr. Weiss initially assessed Brianna as having a normal life expectancy; however, after reviewing Dr. Day’s findings, he revised his opinion to suggest a slightly reduced life expectancy due to her cognitive impairments.

Extensive expert testimonies were provided regarding Brianna’s future medical needs, resulting in life care plans from both parties that show similar projected costs. The Defendant disputes certain aspects of the Plaintiff's life care plan, claiming some requested treatments, such as various therapies and support services, are unnecessary. After reviewing both plans and the associated expert testimonies, the Court finds the costs proposed in the Plaintiff’s life care plan to be medically reasonable and likely to be incurred due to the Defendant’s negligence.

Ultimately, the Court awards Brianna $2,877,719.00 for future care costs, based on the life expectancy finding and the Plaintiff's life care plan, while applying the Defendant’s net discount rates. Additionally, the Court reiterates that under California Civil Jury Instruction for Lost Earning Capacity, damages for the loss of earning capacity must be proven based on the reasonable value of that loss, regardless of prior work history or actual earnings post-injury.

The determination of future lost earnings focuses on what the plaintiff could have earned, not what she would have earned. California Civil Jury Instruction CACI 3903C requires the plaintiff to establish the amount of income she is reasonably certain to lose due to injury. The plaintiffs challenge the credibility of expert Dolan's testimony, arguing that her definition of future lost earning capacity aligns more closely with future lost earnings rather than lost earning capacity. The defendant acknowledges this but maintains that the court should rely on Dolan's analysis for damages.

At trial, the plaintiffs' expert, Johnson, defined lost earnings capacity as the potential earnings over a set period, while Dolan described it as the amount an individual is reasonably certain to earn. The court found Dolan's testimony, which referred to future lost earnings, not lost earning capacity. After evaluating the evidence, the court concluded that the plaintiffs had demonstrated that Brianna is entitled to future lost earnings, estimating her damages at $1,401,879. This assessment accounted for potential fringe benefits and a working lifespan until age 65, applying a 2.5% net discount rate.

Additionally, the defendant presented evidence of $21,583 received by Brianna in Supplemental Security Income (SSI) between 2012 and 2015, arguing this should be deducted from any judgment to prevent double recovery. The plaintiffs countered that while past SSI payments are admissible, California Civil Code section 3333.1 provides a limited exception to the collateral source rule, implying that such benefits should not automatically reduce the damages awarded.

In a personal injury action against a health care provider for professional negligence, a defendant may present evidence of any benefits payable to the plaintiff under various acts, such as the Social Security Act or worker’s compensation laws. If the defendant introduces such evidence, the plaintiff can counter with evidence of any amounts they paid to secure those benefits. Additionally, benefits received from unfunded general revenues must be deducted from any federal tort claims award to prevent double compensation. In this case, Brianna's damages will be offset by $21,583. 

Non-economic damages, defined under California Civil Code Section 1431.2(b)(2) as subjective losses including pain, suffering, and emotional distress, may be awarded for the distress resulting from negligent delivery and its unexpected consequences. However, they cannot be awarded for the loss of affection or companionship. The plaintiffs are seeking the maximum allowed non-economic damages of $250,000 for Brianna Veasley, which the defendant agrees to if the court finds her entitled to such damages. The court concludes that Brianna is indeed entitled to recover $250,000 for her non-economic damages. 

Mildred Veasley, also a plaintiff, is requesting the same amount of $250,000, citing severe pain experienced at Brianna's birth.

Mildred Veasley described her experience during Brianna's birth as terrifying and traumatic, leading her to frequently discuss the event with family, friends, or her pastor. The court awarded Mildred Veasley $250,000 in noneconomic damages. The plaintiffs were granted judgment against the United States, with total economic damages of $4,440,852.11, which included past medical expenses of $1,875.41, extraordinary parental care valued at $180,961.70, lost earning capacity of $1,401,879.00, and future care costs of $2,877,719.00, minus an offset for past SSI of $21,583.00. The total noneconomic damages awarded to both Brianna and Mildred Veasley was $500,000. The court ordered a joint status report by September 1, 2016, with a status conference scheduled for September 8, 2016. The claim for negligent infliction of emotional distress was considered abandoned as it was not addressed during the trial. Medical records indicated discrepancies in Veasley's menstrual history around the time of her pregnancy, and expert testimonies clarified definitions and conditions related to preterm labor and various pregnancy complications. Brianna was born in January 2009 and spent 8 months in the hospital. The court calculated the value of extraordinary parental care based on time spent caring for Brianna, totaling $180,961.70. Additional details regarding Brianna's life expectancy and educational attainment were discussed in subsequent sections of the court's decision.