The Impact of a Vocational Expert in a Medical Malpractice Case

Medical negligence can cause devastating injuries. A recent case in Illinois illustrates how lawyers use vocational experts to establish loss of earning capacity as an element of damages.

Maggie Zhao gave birth at a Federally Qualified Health Center in Southern Illinois. Her obstetrician was employed by the Public Health Service. Since the obstetrician was a federal employee, the federal government was liable for any harm caused by the obstetrician’s malpractice.

Negligent Delivery

Ms. Zhao’s baby weighed almost twelve pounds at birth. Obstetricians must be particularly careful when delivering a baby with a high birth weight. Maneuvering the baby incorrectly can cause a shoulder injury that leads to a lasting disability. The disability occurs when the baby’s shoulders become stuck in the birth canal after the head has been delivered. Pulling the baby can damage nerves in the baby’s shoulders and lead to oxygen deprivation. Obstetricians should recognize a medical emergency when a baby’s shoulders become stuck after the head is delivered. 

The obstetrician who delivered Ms. Zhao’s baby should have known that she was at a high risk for a complicated delivery. He should have considered Ms. Zhao’s request for a cesarian delivery. Instead, he mismanaged the delivery of her baby in several ways. His failure to administer an ultrasound or to use a reliable method of estimating birth weight caused him to underestimate the baby’s size.

The obstetrician attempted a vacuum extraction that caused the baby’s shoulders to become stuck — a method of delivering a baby that is not recommended for an unusually large baby. He used two much traction in an effort to deliver the stuck baby. Another obstetrician stepped in after the baby’s shoulders had been stuck for nine minutes. Two or three minutes is cause for concern.

The baby was not breathing when he was born. Physicians were able to revive the baby, but he spent several weeks in neonatal intensive care. The baby suffered from a brachial plexus injury that commonly results from shoulder dystocia. That injury involves damage to nerves in the shoulder, arm, and hand. The baby’s nerves were completely torn from the spinal cord. They were also stretched and scarred. Several surgeries restored a degree of function, but the victim will have a permanent disability.

Physicians testified that the child’s injuries will require further surgeries. The child will need occupational and physical therapy for the rest of his life. He will be unable to use his right arm and hand to engage normally in most of the activities of daily living, including such routine activities as scratching his head, twisting doorknobs, and typing. Any activity requiring the coordination of both hands will be difficult. Fortunately, oxygen deprivation did not result in any obvious cognitive impairment.

Vocational Expert Testimony

The government conceded the obstetrician’s medical negligence. Malpractice cases involving doctors employed by the federal government are decided by a judge rather than a jury. The judge awarded the child $8.3 million, including damages for past and future medical expenses and for the pain and suffering of having a permanent disability. More than $2.6 million of that award represented loss of future earnings.

On appeal, the government argued that it is impossible to attribute a future earnings loss in excess of minimum wage to a child because the judge would need to speculate about the child’s future career. The appellate court concluded that the trial judge was entitled to rely on the testimony of vocational experts to return an award for loss of earning capacity.

Ms. Zhao’s vocational expert provided several estimates of lost earning capacity based on different levels of education the child might attain. Ms. Zhao’s expert concluded that the child’s injury would cause him to lose a minimum of $916,793 in lifetime earning capacity with a high school diploma, $1,043,076 with an associate’s degree, and $1,581,779 with a bachelor of arts or science degree.

The government also relied on a vocational expert. The government expert opined that the child would likely be able to perform many sedentary, light, or knowledge-oriented jobs without any impact on his earning capacity. The expert conceded that certain occupations requiring manual labor or physical strength and dexterity in both arms would be largely unavailable to the child.

The government expert concluded that a child with a high school diploma who is limited to sedentary work could earn $20,000 to $30,000 annually as a cashier or payroll clerk. Given the numerous non-manual jobs available in the labor market, the government’s expert opined that the child’s overall earning capacity would not be affected by the permanent injury to his shoulder and arm.

The government expert nevertheless conceded that the disability would make some jobs unavailable to the child that would be available to non-disabled individuals with high school diplomas. At the top end of earnings, a high school graduate might make $100,000 in a skilled union trade. The government’s vocational expert concluded there was no evidence that the child would have pursued those jobs in the absence of a disability.

The judge decided that the child would attain at least a high school diploma and might gain a higher education. The judge concluded that the child would suffer a loss of earnings because of his disability. The judge valued his loss of earning capacity at $70,000 per year, resulting in a wage loss of $2.6 million over a working lifetime.

Vocational Testimony and Loss of Earning Capacity

The appellate court noted that loss of earning capacity does not need to be — and usually cannot be — determined with precision. The court noted the “unavoidable uncertainty in any calculation of lost earnings, especially for such a young victim who suffered an injury at birth.” 

The judge anchored his reasoning on statistical evidence of typical wages for sedentary jobs in the national economy. The judge drew upon the evidence provided by both vocational experts in selecting that statistical evidence. Since the testimony of vocational experts for both parties provided an arguable basis for the judge’s award of damages, that award was not disturbed on appeal.