U.S. ordered to pay half of Temple hospital's $8 million birth injury settlement

A federal judge has ordered the U.S. government to contribute half of Temple University Hospital's $8 million settlement of a birth injury lawsuit.

The hospital sued the government seeking exemption from legal responsibility, or indemnity, arguing that the obstetrician liable for the birth injuries was a federal employee — even though that doctor was also working in labor and delivery at Temple.

U.S. District Judge Mark A. Kearney concluded that under Pennsylvania and federal law, the government was partly responsible for the negligence of its employee, obstetrician Clinton Turner.

"We order the United States reimburse 50 percent of the reasonable $8 million settlement of a substantial birth injury case," Kearney wrote in his April 14 opinion.

The ruling recounted the facts of the case: In August 2009, a woman who was 37 weeks pregnant, identified only as S.M., was sent by her obstetrician to Temple hospital for evaluation of decreased fetal movement.

Turner was working as an attending physician in labor and delivery at Temple, and was also an employee of Delaware Valley Community Health Inc., which operates five community health clinics, technically known as Federally Qualified Health Centers. DVCH's website lists Turner as a physician at its Marie de los Santos clinic in North Philadelphia.

Although Temple nurses told Turner about worrisome fetal test results, he did not see S.M. in person for almost three hours. "After three hours of communication breakdowns between the professionals … the doctor turned his attention to perform a now urgent cesarean upon the mother and shortly thereafter delivered the baby … with several birth injuries," the judge wrote.

The parents filed suit in Philadelphia Common Pleas Court, demanding $100 million for damage to the baby, who was diagnosed with permanent injuries including seizure disorder, visual impairment, microcephaly, and the severest form of cerebral palsy.

During pre-trial testimony, the hospital's experts said there was evidence that the baby had brain damage when the mother arrived at the hospital for evaluation. But they could not rule out the possibility that ongoing oxygen deprivation in the hours before delivery contributed to the injuries, according to Kearney's opinion this month.

Temple opted not to sue Turner and to settle the case for $8 million — the estimated cost of  lifetime medical care for the child.  The hospital's lawyers "advised it could face a verdict of $50 million or more" if the hospital lost at trial in Common Pleas Court.  It filed the action against the government afterward.

The Temple health system declined to comment.

Delaware Valley Community Health's vice president and chief medical officer, A. Scott McNeal, said he could not comment on the decision. "This is an unusual case. I haven't had a chance to review the opinion and brief my board," he said.

The case was unusual enough to be written up last year in a newsletter about health-care issues published by the Washington-based law firm, Jackson & Campbell.

The newsletter explained that Turner was working at Temple "under an agreement between the hospital and DVCH to share physicians. The hospital settled the case … and submitted a claim to the federal government under the Federal Tort Claims Act for reimbursement."

The government had successfully argued to the judge that it was not a party to the physician-sharing agreement, so it could not indemnify the hospital. However, the judge refused to dismiss all claims by Temple against the government, the newsletter explained.