Injured baby during delivery leads to $33 million judgment
Marla Dixon was in the final stage of labor and ready to deliver a baby boy when the obstetrician arrived at her bedside at North Shore Medical Center in Miami.
It was not a high-risk pregnancy. But over the next 90 minutes, the doctor made a series of missteps that led to a tragic outcome for Dixon and her baby — and a $33.8 million malpractice judgment, according to a federal lawsuit.
The doctor ordered nurses to restart a drug to strengthen contractions, failed to perform a Cesarean section — and walked away from Dixon’s room for long periods, once for an eight-minute phone call from his stockbroker, the verdict said.
By the time the baby was delivered Dec. 2, 2013, he was blue in the face and his limbs were limp, according to the verdict handed down by U.S. District Judge Robert Scola. It took a medical team to revive the infant, named Earl Jr., and by then he had severe brain damage from lack of oxygen, according to the lawsuit filed by Dixon and the boy’s father, Earl Reese-Thornton, Sr.
The doctor, Dixon said later, blamed her for not pushing hard enough. He also tried to cover his tracks by falsifying the 19-year-old mother’s medical record with a note that made it appear she had refused a C-section, according to the testimony of the nurse in charge of delivery.
For Dixon, the court’s judgment will help pay for a lifetime of round-the-clock care for her son, but it does not go far enough.
“Not one time did he apologize,” Dixon said of the doctor, whose name is Ata Atogho. “He didn’t care. He kept going on with his lies. He blamed me.”
Atogho did not respond to repeated phone calls and emails because he’s on vacation, according to an assistant at Metro-Miami Obstetrics and Gynecology in North Miami Beach, where he works.
Lawyers for the U.S. Attorney’s Office, which represented Atogho in the Dixon case because he worked for the federally funded Jessie Trice Community Health Center at the time, refused to comment.
But as Dixon would later find out, she was not the first parent to sue Atogho for seriously injuring a newborn he delivered in 2013.
Atogho delivered two babies that year who were permanently brain damaged, and a third who was disabled for life, according to lawsuits filed by the injured infants’ mothers — all of whom were teen-aged moms receiving care at Jessie Trice, which serves many of Miami’s low-income and uninsured residents.
In one case, a patient accused Atogho of rushing to deliver her baby and using a vacuum device that disfigured her daughter, born in September 2013 with permanent damage to nerves in her shoulder and neck. The baby’s mother, who was 17 at the time and delivering her first child, agreed to settle for $92,200 in January, according to court records.
Another case, which has not yet gone to trial, involves a baby whom Atogho delivered in May of 2013, according to the legal complaint. The mother, 19, accused Atogho of ignoring signs that her baby was in distress and waiting too long to perform an emergency C-section, causing permanent brain damage to her daughter.
In all of the cases, the mothers received their prenatal care from nurses and midwives at Jessie Trice clinics and delivered their babies at North Shore Medical Center, where Atogho was their on-call obstetrician. Dixon said she met Atogho just once before he arrived at her bedside while she was in labor.
Richard ‘Bo’ Sharp, a Miami attorney who represented Dixon, said Dixon’s case was helped by a nurse who testified that Atogho lied when he wrote a note that read “refused c/s” on her patient record, a reference to a C-section.
Up until then, Sharp said, “It was [Dixon’s] word against the doctor’s.”
Despite the verdict in Dixon’s case, Atogho has not received a reprimand and no other disciplinary action has been taken against his Florida medical license for the incident. He’s not personally liable for the $33.8 million judgment, either.
The U.S. government is on the hook for the money. Dixon and Reese-Thornton were able to sue the federal government because Atogho worked for a federally funded health clinic.
Atogho first joined Jessie Trice in 2012, when he signed a contract that paid him $350 for every baby he delivered, according to Dixon’s lawsuit. He is board certified to care for pregnant women and deliver babies, and records say he delivered about 2,000 babies prior to Dixon’s case.
Annie Neasman, president and CEO of Jessie Trice, said Atogho no longer works for the centers. She wouldn’t comment on specific cases but she said Jessie Trice checks the credentials of all doctors before hiring them, and she noted that in June, the network of health centers will mark a half-century of providing care in Miami.
“Over those years we’ve delivered tens of thousands of babies,” she said. “For the most part, there have not been issues with the delivery and the quality of our services.”
Neasman said Jessie Trice also has changed its model of delivery for pregnant patients. In 2013, nurses and midwives provided most of the prenatal care, and they still do. But the obstetrician was only contracted to deliver babies once the mothers went into labor.
Now, she said, the obstetricians are full-time employees of Jessie Trice, and they meet with patients prior to delivery.
Patricia Vila, a spokeswoman for North Shore, said Atogho has not worked at the hospital for “a number of years” but wouldn’t provide a date.
Atogho now works in private practice and has privileges at Jackson North Medical Center and Memorial Miramar Hospital in Broward County. He is also a part-time volunteer assistant professor for Florida International University’s Wertheim College of Medicine.
Hard to find the truth
But there is no hint of trouble on his Florida medical license.
Deirdre Gilbert, director of the nonprofit National Medical Malpractice Advocacy Association in Texas, said consumers might not be aware that their doctors have a history of medical malpractice because monetary settlements with injured patients are often confidential. In other cases, the doctor isn’t the named defendant in a lawsuit, as in Atogho’s case.
“It’s very hard to find out the truth,” said Gilbert, who became a patient advocate after her daughter died when a doctor with a history of drug abuse and dead patients perforated her esophagus and colon during a gastrointestinal endoscopy.
In each of the three cases involving Atogho, the defendant was the United States, which is liable under federal law for injuries caused by its medical employees.
The physician profile for Atogho maintained by the Florida Department of Health also fails to inform patients of his past, saying only that his license is “clear and active.”
It’s very hard to find out the truth.
Deirdre Gilbert, National Medical Malpractice Advocacy Association director
Brad Dalton, a health department spokesman, said the state agency typically does not investigate a physician for malpractice unless a patient files a formal complaint. The Florida Board of Medicine can discipline doctors for malpractice, including imposing fines and restricting or revoking their license.
But Dalton added that doctors are required by Florida law to report adverse incidents that involve them. “Anything that goes out of the ordinary while they’re in the room has to be reported to us within 15 days,” he said.
Yet even if Atogho has reported the case, consumers still might not hear about it. Those records only become public if a health department investigatory panel issues a probable-cause finding, which opens the door to prosecution by the health department, Dalton said.
That means the state health department is unaware of Atogho’s three incidents in 2013, or the agency has investigated and found no probable cause to prosecute the doctor — or it’s still investigating nearly four years later.
“It’s just hard to say,” Dalton said. He added that the health department is in the process of updating the agency’s consumer complaint website, flhealthcomplaint.gov, to make it easier for patients to report problems.
Risk of brain damage
Despite Atogho’s experience — he began practicing in Florida in 2009 — medical experts who testified in the Dixon case found that he failed to act on signs that the fetus was in distress, according to the judge’s 52-page verdict.
Court records say that when Atogho arrived at Dixon’s bedside, her baby had a “category 3” fetal heart rate, which a medical expert testified is the “most ominous” reading possible, indicating the baby is starved of blood and oxygen and at risk for brain damage or death.
Martin Gubernick, an obstetrician affiliated with New York Presbyterian Hospital Weill Cornell Medical in New York, told the court that the baby’s distress could have been caused by dehydration, the length of the labor or Atogho’s order to administer the drug Pitocin, which induces contractions.
Every time the uterus contracts, though, it reduces the blood supply to the baby, Gubernick testified. Atogho continued the drug at full strength for more than an hour after arriving at Dixon’s bedside, according to the court record.
Hypoxic-ischemic encephalopathy or HIE is a type of brain damage that occurs when an infant’s brain doesn’t receive enough oxygen and blood. According to the Florida Neonatal Neurologic Network, HIE affects about 20 out of every 1,000 full term births.
Atogho also tried three times to deliver the baby using a vacuum device called a “Kiwi,” but that didn’t work. After 90 minutes of Dixon pushing, the baby was suffocating, according to the court record.
“You can’t beat the baby up for that long and not have a bad outcome,” Grubernick testified.
The baby, nicknamed EJ, was delivered at 3:21 p.m. on Dec. 2, 2013, according to the court record. If Atogho had performed a C-section at 3:05 p.m. or earlier, Gubernick told the court, “within a reasonable degree of medical probability the baby would not have suffered damage.”
The nurse in charge, who testified that she had not left the room during the entire episode, said during the trial that Atogho never offered Dixon a C-section even though the patient was telling the doctor, “Cut me. I want to be cut. I can’t do this anymore.”
The baby was delivered when Atogho was out of the room but with the nurse present, the records said. Atogho returned five minutes later to cut the umbilical cord.
Doctors transferred the baby to the neonatal intensive care unit at Nicklaus Children’s Hospital in Miami the next day. That’s when Dixon and Reese-Thornton learned he had suffered permanent brain damage.
“They said his brain was dead,” Reese-Thornton, 26, said.
EJ went home nearly two months after he was born, but he’s been hospitalized about 30 times since then, Sharp said.
Doctors have performed a tracheotomy to help him breathe and inserted a feeding tube into his stomach. EJ cannot speak or sit up without falling over. He has scoliosis and cerebral palsy, Dixon said, and he takes dozens of medications every day.
“It’s really hard to see him like that,” Reese-Thornton said.
Instead of making plans to take his son fishing or bike riding, Reese-Thornton said he had to learn how to clean EJ’s feeding tube and make sure no bubbles get into the infant’s stomach. He also learned CPR and how to clean EJ’s tracheotomy and suction EJ’s mouth of drool.
His hopes for his son have narrowed now: “One day I hope he will walk.”
Dixon and Reese-Thornton had two more children after EJ, including Serenity, 2, and Elijah, 1. But Dixon said the stress of caring for EJ led the couple, who never married, to separate in 2016.
“It was tough financially,” she said. “Every little thing became an argument.”
As EJ sits on Dixon’s lap in the living room of their home, the 3-year-old boy gazes at the ceiling. When his arm begins to shake involuntarily, Dixon holds his hand. She said that sometimes happens when she drives him to doctor’s appointments or takes him outdoors.
“When you take him outside, it brightens up his day,” she said. “He shakes, but he’s shaking because he’s excited. It makes me happy.”