Zhao v. United States, No. 19-3071 (7th Cir. 2020)
Annotate this CaseWhen Zhao gave birth to her son “S.,” he suffered an avoidable brachial plexus injury that severely and permanently impaired the function of his right arm. During her pregnancy and S.’s birth, Zhao was attended by an obstetrician employed by a federally supported grant clinic in southern Illinois, who is considered an employee of the U.S. Public Health Service under 42 U.S.C. 233(g), Zhao sued for medical malpractice under the Federal Tort Claims Act. The court found that the obstetrician had been negligent and awarded Zhao, on behalf of S., $2.6 million in lost earnings and $5.5 million in noneconomic damages. S. was not five years old at the time of trial. The Seventh Circuit affirmed, rejecting the government’s argument that the calculation of S.’s future lost earnings was improperly speculative, given the uncertainties inherent in projecting a five‐year‐old’s career opportunities. The question may have been difficult, but there was no reversible error. The court took a reasonable approach to estimate the lost earnings award based on data provided in expert testimony. The government also challenged the award of non-economic damages as arbitrary and excessive in comparison to similar cases. The court could have provided a more detailed explanation of its comparative process, but its reasoning did not amount to reversible error.
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