The U.S. Court of Appeals for the Eleventh Circuit has affirmed a $33.8 million medical malpractice verdict against the federal government that's been in judicial limbo since April 2017.

An appellate panel made up of Circuit Judges Robin Rosenbaum and Gerald Bard Tjoflat and U.S. District Judge Ursula Ungaro, sitting by special designation, upheld the verdict.

At trial, U.S. District Judge Robert Scola had sided with a brain-damaged baby's parents, who had accused Dr. Ata Atogho, the obstetrician at North Shore Medical Center who delivered their baby boy, Earl Jr., of overlooking problems with his health before delivery.

Atogho also left the room at various points to deliver another baby and to take a call from his financial adviser about purchasing a house.

As Atogho was a federal employee, the case was brought against the U.S. government in accordance with the Federal Tort Claims Act.

The baby's parents, Marla Dixon and Earl Reese-Thornton Sr., argued that despite Dixon's cries of “Cut me!” Atogho did not perform a C-section, and instead tried to move forward with a conventional labor.

“'Just keep pushing,' I think were his words,” said lead counsel Richard “Bo” Sharp of Mallard & Sharp in Miami, who worked with Vidian Mallard on the case.

Related story: Miami Attorneys Win $33.8M Med-Mal Award Against Federal Government

The district court previously found that Dr. Atogho had lied and fudged medical records when he claimed that Dixon, who was 19 at the time, had never asked for a C-section. According to several doctors who testified at the 2017 trial, Earl Jr.'s brain damage could have been prevented if she was given one.

The government had appealed Scola's $33,813,496.8 award but did not dispute the monetary amount or liability.

“They appealed what was going to happen to the money if something happened to the child,” Sharp said.

Sharp characterized the litigation as frustrating for his team as he claimed that the Department of Justice dragged its feet throughout.

“There's a pattern that the federal government takes in these cases. My position on it is that the delay in this case was depriving this family, this little boy, of medical needs, and the government knew that. But the government also knew that if this little boy would have passed away before the appeal, then the damages would have to be retried and the government would save a ton of money,” Sharp said.

He calls it a “delay tactic” and claims he was warned about it by defense attorneys nationwide. “Congratulations. Get ready for Mr Toad's Wild Ride,” one U.S. government attorney allegedly told Sharp after the verdict was reached.

“We have tried to work this out with the government, and they made no attempts and offered no settlement of this case from the time we received the verdict until now,” Sharp said.

According to Sharp, the verdict is so high because it reflects the cost of care for a brain damaged baby.

“This isn't a jury that was shocked and gave too much money. These little babies are very, very expensive to keep alive because they need 24-hour nursing, which is in the millions of dollars,” he said.

Sharp hired an economist and a life care planner to work out how much it was going to cost to take care of Earl Jr. for the rest of his life, which was estimated to last no longer than 30 years.

Click here to read the amended verdict

Dixon, the baby's mother, was awarded $3.3 million in past and future non-economic damages, while Thornton was awarded $1.1 million.

Baby Earl Jr.'s pain and suffering damages totaled $7.6 million, while his economic damages amounted to $21.8 million.

“The baby received a large pain and suffering damage because his life has pretty much been robbed from him by the actions of this doctor,” Sharp said. ”Judge Scola weighed all the evidence, and in our opinion it wasn't conservative and it wasn't liberal. It was just fair.”

Charles White of the U.S. State Attorney's office represented the government, along with J. Steven Jarreau of the U.S. Department of Justice. They argued for periodic payments of the award, rather than a lump sum.

A spokesperson from the Department of Justice did not wish to comment on the case.

Lauri Ross of Ross & Girten in Miami represented Earl Jr. and his parents for the appeal, and awaits the U.S. Government's next move.

Read the court opinion: