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Gallardo v. United States

United States Court of Appeals, Tenth Circuit

May 19, 2014

MARIA GALLARDO and D.R.G., a minor child by and through her natural mother and next best friend, MARIA GALLARDO, Plaintiffs - Appellants,
UNITED STATES OF AMERICA, Defendant - Appellee

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Michael Goodman, PC, Englewood, Colorado, (William G. Fischer, PC, Colorado Springs, Colorado, with him on the briefs), for Plaintiffs-Appellants.

Laurie K. Dean, Special Assistant United States Attorney, (John F. Walsh, United States Attorney, with her on the brief), Denver, Colorado, for Plaintiff-Appellee.

Before BRISCOE, Chief Judge, HOLLOWAY[*] and HOLMES, Circuit Judges.


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BRISCOE, Chief Judge.

Plaintiffs Maria Gallardo and her minor child, DRG, who was born with cerebral palsy, filed this action against the United States of America pursuant to the Federal Tort Claims Act. Plaintiffs claimed that the performance of Ms. Gallardo's attending obstetrician, Dr. Jeffery McCutcheon, fell below the applicable standard of care during the labor and delivery of DRG. After conducting a bench trial, the district court found in favor of the United States. Plaintiffs now appeal. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm the judgment of the district court.


Factual background

On the afternoon of February 11, 2007, Ms. Gallardo went to Memorial Hospital

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in Colorado Springs, Colorado, complaining of reduced fetal movement. At approximately 3:10 p.m., a triage nurse placed an electronic fetal monitor (EFM) on Ms. Gallardo. The EFM strip (i.e., the paper printout produced by the EFM) showed some reactivity, but also showed a deceleration in the fetal heart rate. Based upon these circumstances, and the fact that Ms. Gallardo was experiencing some early contractions, Ms. Gallardo's attending physician, Dr. McCutcheon, admitted her to the hospital. Dr. McCutcheon, a board-certified obstetrician and gynecologist, was employed as the clinical director of the Women's Care Center at Peak Vista Community Health Center, a federally-operated facility that provided a variety of health services to underprivileged patients in the Colorado Springs area.

At approximately 5:00 p.m., Dr. McCutcheon ordered the nursing staff to administer Pitocin to Ms. Gallardo via an intravenous line (IV). Pitocin, a synthetic form of oxytocin, is used to induce or strengthen contractions. At approximately 5:30 p.m., Dr. McCutcheon ordered the amount of Pitocin to be increased slightly. Shortly before 6:00 p.m., the EFM strip showed a late deceleration. A late deceleration begins after the start of a contraction, reaches its nadir after the contraction peaks, and returns to baseline after the contraction has completed. Late decelerations are a sign of fetal hypoxia (lack of oxygen) if heart rate variability is also decreased. Because of the late deceleration, Dr. McCutcheon ordered the Pitocin to be turned off. To address any possible fetal hypoxia, the staff also changed Ms. Gallardo's position and administered oxygen and an IV bolus to Ms. Gallardo. By 6:30 p.m., the EFM strip appeared normal again. Consequently, Dr. McCutcheon ordered the Pitocin to be turned back on.

At approximately 7:40 p.m., the EFM strip began to exhibit hyperstimulation, which is more than five contractions in a ten minute period of time. At approximately 8:00 p.m., Dr. McCutcheon ruptured Ms. Gallardo's membranes, placed a fetal scalp electrode on the baby's head to measure its heart rate and inserted a pressure catheter inside Ms. Gallardo's uterus in order to measure the contractions. Shortly thereafter, the staff began to see mild variable decelerations in the baby's heart rate. Variable decelerations are of short duration and are a sign of possible umbilical cord compression. Dr. McCutcheon responded by ordering an amniofusion, which involves injecting fluid up near the baby in the amniotic cavity in an attempt to alleviate cord compression. The amniofusion continued for the remainder of the labor and delivery.

At approximately 8:20 p.m., the nursing staff stopped the Pitocin because the EFM strip was exhibiting tachysystole. Tachysystole, also known as hyperstimulation, means an excessive number of contractions, generally defined as six or more contractions in a ten minute period. The baby responded positively to the Pitocin being turned off. However, tachysystole was consistently present throughout the remainder of the labor and delivery.

By 11:00 p.m., Ms. Gallardo was dilated four centimeters and at a -2 station (meaning relatively high in the pelvis). At approximately 11:10 p.m., the staff recognized that the EFM strip was exhibiting a prolonged variable deceleration. A prolonged deceleration is a deceleration lasting between two and ten minutes and is a sign of possible fetal hypoxia. Another prolonged deceleration occurred shortly after 11:30 p.m. At that time, Ms. Gallardo's cervix was dilated five centimeters and the baby remained at a negative station.

At approximately 12:35 a.m., another prolonged deceleration occurred. A member

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of the nursing staff allegedly examined Ms. Gallardo[1] and determined that she was completely dilated, but that the baby was still at a negative station. At approximately 12:42 a.m., Ms. Gallardo, pursuant to Dr. McCutcheon's instructions, began pushing. After one push, the EFM strip showed a prolonged deceleration. As a result of the prolonged deceleration, Dr. McCutcheon had Ms. Gallardo stop pushing for a few contractions.

Dr. McCutcheon continued to monitor the strip and interpreted it as showing that the baby's heart rate was recovering and maintaining good variability. In light of that, and because he believed that delivery would occur relatively quickly, Dr. McCutcheon instructed Ms. Gallardo to begin pushing again. At approximately 1:10 a.m., the EFM strip was showing persistent late decelerations, tachycardia (a baseline fetal heart rate exceeding the top normal rate of 160 beats per minute), and diminished variability. Variability is the most sensitive indicator of whether a baby is suffering from hypoxia. Minimal or diminished variability means fluctuation of less than five beats per minute. Minimal or diminished variability is considered abnormal; in contrast, moderate variability, which is six to twenty-five beats per minute, is considered reassuring. The nursing staff responded to these concerning indications by giving Ms. Gallardo oxygen and an IV bolus and notifying Dr. McCutcheon. But the nursing staff also instructed Ms. Gallardo to keep pushing.

At approximately 1:30 a.m., the EFM strip continued to show persistent late decelerations. The nursing staff again notified Dr. McCutcheon and, from that point forward, he remained at Ms. Gallardo's bedside.[2] Dr. McCutcheon instructed Ms. Gallardo to stop pushing. The EFM strip, however, continued to indicate that the baby was experiencing tachycardia. And the internal pressure catheter indicated that the baseline hypertonus, i.e., the uterine tone or pressure, was elevated. In such conditions, the baby does not receive enough rest between contractions and is at risk of developing hypoxia.

Dr. McCutcheon instructed Ms. Gallardo to begin pushing again. The EFM strip indicated another prolonged deceleration, minimal variability, and tachycardia. Per Dr. McCutcheon's instructions, however, Ms. Gallardo continued to push and eventually delivered DRG at 2:22 a.m. DRG's cord gases at birth were severely acidotic with a base deficit of approximately 18.[3] DRG was initially diagnosed with hypoxic-eschemic encephalopathy. Ultimately, however, DRG was diagnosed with cerebral palsy.

Procedural background

On April 19, 2010, after exhausting the administrative remedies offered by the United States Department of Health and Human Services, Ms. Gallardo and DRG initiated this action by filing suit against the United States pursuant to the Federal Tort Claims Act (FTCA).[4] The complaint

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alleged, in pertinent part, that Dr. McCutcheon's performance " fell below the standard of care" in several respects, Complaint at 7, including (a) " not properly interpreting the fetal monitoring strip," id., (b) " continuing to push with evidence of acidosis as evidenced by prolonged decelerations, minimal to absent variability, persistent late decelerations, and tachycardia, in the presence of tachysystole and uterine hypertonus," id. at 8, (c) " not initiating a cesarean section . . . at 0050 on February 12, 2007, if not before," id., and (d) " not properly interpreting the severity of the pattern demonstrated by the [fetal heart rate monitor]," id. Ms. Gallardo and DRG sought judgment against the United States " for the sum and amount of $60,000,000.00 plus [their] cost [sic] in this action, [and] pre and post judgment interests [sic] in accordance with the law." Id. at 12.

The case was tried to the district court beginning on April 9, 2012, and concluding on April 24, 2012. On June 28, 2012, the district court issued a written order finding in favor of the United States on plaintiffs' claims under the FTCA. Final judgment was entered in the case on June 29, 2012. Plaintiffs filed a timely notice of appeal.


On appeal, plaintiffs assert seven separate challenges to the district court's order finding in favor of the United States. As outlined in greater detail below, we conclude that all seven of these challenges lack merit. And, for that reason, we ...

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