Gerald D. Jowers Jr.

Kelly D. Wilson had delivered her first child by emergency cesarean section at Fort Campbell’s Blanchfield Army Community Hospital in January 2004, and she wanted to attempt a vaginal birth with her second. In mid-November 2004 Barbara Fikes-Maki, a certified nurse-midwife, gave her the hospital’s standard consent form for a vaginal birth after cesarean, or VBAC, and told her to review it and take it to her appointment with Dr. Arif Mahood, a high-risk obstetrician. The form read: “I understand that approximately 60–80 percent of women who undergo a VBAC will successfully deliver vaginally.” Dr. Mahood took her through the form point by point, told her she was a good candidate, and gave her the success rate already printed on it: 60 to 80 percent. He later testified that he had reviewed her history for individual risk factors and “did not find anything significant” counseling against VBAC.

Her son, A.J.J.T., was born on January 10, 2005, after a failed trial of labor, blue and showing no signs of life. Fifteen years later, on January 28, 2020, after a four-day bench trial in the Middle District of Tennessee, U.S. District Judge Aleta A. Trauger found that the Army hospital had misinformed Wilson about her chances. She credited the family’s obstetricians, who put Wilson’s real chance below 50 percent, found that, properly counseled, Wilson more likely than not would have had a planned cesarean, and held the United States liable to the boy for $15,153,488.

Gerald D. Jowers Jr., then a partner at Janet, Janet & Suggs in Columbia, South Carolina, represented the family with his partner Kenneth M. Suggs and with Donald N. Capparella, a Nashville lawyer. “The judge basically said it’s not enough to walk a patient through a general consent form,” Jowers said after the ruling. “The doctor must factor in a patient’s individual risks as well, and counsel her accordingly.”

Jowers is now a principal in Grant & Eisenhofer’s birth-injury practice. In July 2026 he and Lisa B. Weinstein tried a case in Wake County, North Carolina, in which WakeMed argued, as the government had argued in Nashville, that a child’s injury began before the delivery its staff managed.

Twelve Months Between Deliveries

Wilson served three years in the Army and is a veteran of Iraq. She and Delvin D. Tavarez, the boy’s father, were serving in the Army at Fort Campbell and received their care at Blanchfield. Their first child was born there on January 14, 2004. In that labor the fetal monitor recorded a slow heart rate, late decelerations and then a fast heart rate, and Wilson’s cervix stopped at 4 centimeters for about five hours. The hospital delivered the baby by emergency cesarean section, without apparent injury. Less than four months later Wilson was pregnant again, with a due date of January 14, 2005, a year to the day after the first birth. She was 61 inches tall.

The American College of Obstetricians and Gynecologists’ 2004 practice bulletin on vaginal birth after cesarean, which Judge Trauger later reviewed, listed three facts associated with lower chances. A woman whose earlier cesarean was performed for dystocia, or stalled labor, may be less likely to succeed; a woman who has never delivered vaginally is significantly less likely to succeed; and an interval of less than 19 months between deliveries is associated with a lower likelihood of success. Wilson’s interval was 12 months, and all three described her.

Fikes-Maki testified that it was “not [her] role” to counsel an expectant mother on the risks associated with VBAC. Dr. Mahood was the only physician who counseled Wilson about the decision before the day of labor, and his testimony came in by deposition, read into the record at trial. He did not counsel her about the added risk of the short interval between her pregnancies, and he did not weigh her stature, her pelvic measurements, or the stalled labor that had ended in her first cesarean. Judge Trauger found that he “appears to have significantly underestimated the importance of his discussion with Wilson in her ability to make an informed decision regarding VBAC.” Wilson signed VBAC consent forms on November 17, December 14 and January 9; his signature appears only on the December form.

Wilson testified that she left the counseling believing VBAC was a safe option for her, that no one at Blanchfield told her of any risk particular to her stature, her pelvic measurements, the short interval or her failed first labor, and that her consent depended on the accuracy of what Dr. Mahood told her.

An Hour Off the Monitor

Wilson’s contractions began around 2:30 a.m. on January 10, 2005. She reached the hospital at about 5 a.m., 3 centimeters dilated and about 39 and a half weeks pregnant, and the first stretch of the fetal heart tracing showed a normal baseline and moderate variability. Before her half hour on the monitor was over, the variability of the baby’s heart rate had dropped to minimal. Staff took Wilson off the monitor and told her to walk the halls. For the next hour, from about 5:30 to 6:30, no one recorded the baby’s heart rate.

When Wilson went back on the monitor at about 6:30, the tracing showed minimal variability with late decelerations, the pattern of a baby not getting enough oxygen through the placenta. Fikes-Maki formally admitted her; nothing in the evidence showed that she told an obstetrician how Wilson was doing, and her shift ended at 7. Neither she nor nurse Sharon Reid changed Wilson’s position, gave oxygen or a fluid bolus, gave medication to slow the contractions, or sought an evaluation for cesarean delivery.

At about 7:30, while a resident physician was at Wilson’s bedside discussing an epidural with her, the heart rate fell into the 60s and did not come back. A resident tried and failed to attach an electrode to the baby’s scalp. At 7:31 Dr. Diane Adams came to the bedside, repositioned Wilson, placed the electrode, confirmed the slow heart rate and ordered an emergency cesarean. A.J.J.T. was delivered at 8:01 a.m. His Apgar scores were 0 at one minute, 1 at five minutes, 2 at ten and 4 at fifteen, and the delivery team gave him chest compressions, bag-and-mask breaths, a breathing tube and epinephrine before his heart rate recovered. He was moved to the neonatal intensive care unit at Vanderbilt with respiratory failure, hypoxia, seizure activity and metabolic acidosis, and after 26 days he was discharged with a permanent brain injury consistent with hypoxic-ischemic encephalopathy.

Eight Years at the Army Claims Service

A suit against the United States over a military hospital’s negligence is brought under the Federal Tort Claims Act, which requires the injured person to present an administrative claim first. The family filed theirs with the U.S. Army Claims Service on January 9, 2007, two years after the birth. The family alleged that the Army acknowledged the claim that January and again that December, that an attorney advisor at Fort Meade expressed interest in working toward a settlement, and that the claim then went through a lengthy investigation by the claims service. The claims service did not deny it until February 19, 2015. The family asked for reconsideration on March 30, the final denial came on April 10, and A.J.J.T., Wilson and Tavarez sued in federal court in Nashville on October 6, 2015.

By then the birth was more than ten years past. The government moved to dismiss under Tennessee’s statute of repose for medical-malpractice claims, Tenn. Code Ann. § 29-26-116(a)(3), which bars a suit filed more than three years after the negligent act. A statute of repose, the government argued, extinguishes the cause of action itself, as a statute of limitations does not. It relied on the Seventh Circuit’s decision in Augutis v. United States, which had held that the federal claims procedure did not displace Illinois’s four-year repose statute, and it argued that the family could have satisfied both laws by suing while the claim was still pending. On that point Judge Trauger agreed: “The defendant accurately observes that, pursuant to § 2675(a) of the FTCA, the plaintiffs were entitled to bring an action in federal court at any time after June of 2007, six months after they filed their administrative claim.”

On June 21, 2016, she denied the motion anyway. “This court is neither bound by the Augutis holding, nor, ultimately, persuaded by its reasoning.” The administrative process exists, she reasoned, to give the federal government a more efficient and effective way to resolve tort claims against it; a state repose statute that ran out while a claimant waited on that process would put new time limits on it and push claimants to abandon it for a lawsuit as soon as six months had passed. The family had filed its administrative claim within the three years, and the claim had then waited at the Army for eight years. The government had been on notice since that filing, two years after the birth, and in her words it “cannot claim that it was surprised by the plaintiffs’ ultimate filing of a lawsuit in this court.” She followed an earlier Middle District of Tennessee decision, Jones v. United States. “When a plaintiff timely files and pursues an administrative claim in compliance with § 2401(b), therefore, the FTCA preempts application of the Tennessee statute of repose to bar a later federal suit by that plaintiff.”

A Risk Other Than Rupture

Federal law required a bench trial, and Judge Trauger heard the case from August 19 to 22, 2019. Assistant U.S. Attorneys Michael Roden and Kara Sweet defended the United States. The government’s obstetric expert, Dr. Elbridge Bills, testified that a woman with Wilson’s history had an average chance of a successful VBAC; applying a formula published in 2007, he put her odds at 81 or 69.4 percent, depending on how the inputs were read. He conceded that a short interval between pregnancies raises the risk of uterine rupture, but said that risk had nothing to do with the case because Wilson’s uterus did not rupture. He likened her situation to a child who fails to look both ways before crossing the street and is then snapped at by a dog: the child took a risk and had a bad outcome, but was hurt by an unrelated problem.

The family’s obstetricians, Dr. Michael D. Hawkins of Dickson, Tennessee, and Dr. Joseph P. Bruner, a Midland, Texas, obstetrician who had practiced in the Nashville area in 2005 and whose report was read into the record, both put Wilson’s chance of a vaginal delivery below 50 percent, pointing to the short interval, her pelvic measurements, her stature and the arrest of her first labor. Hawkins called the failed descent in that first labor, when Wilson stayed at 4 centimeters for five hours, a “strong point weighing against” attempting VBAC, and testified that her 61-inch stature correlated with a more restrictive pelvis. Bruner called the printed 60-to-80 figure a “gross exaggeration” of her actual chance. Judge Trauger found Hawkins very credible and Bills lacking in credibility by comparison. She held that Blanchfield’s staff fell below the standard of care by failing to assess Wilson’s individual risk factors, especially the short interval and the details of her failed first labor, and by giving her inaccurate information about her likelihood of a vaginal delivery.

Judge Trauger rejected the dog analogy. “Proximate cause, however, does not require that the plaintiff suffered the most likely injury, just that the harm was of a type that could have reasonably been foreseen.” A failed trial of labor was one of the key risks Wilson faced, and it came to pass: her attempt at a vaginal birth failed, and A.J.J.T., in the court’s words, “was unnecessarily subjected to the dangers associated with unproductive labor, resulting in injury.”

The court also found a second breach that caused the injury. Once the tracing showed late decelerations at 6:30, the staff should have begun resuscitative measures and obtained an obstetrician’s evaluation, and the decision to perform a cesarean should have been made no later than 7:10 a.m., which would have brought delivery by 7:40. Hawkins and Bruner testified that earlier intervention would have delivered A.J.J.T. before the injury, and Judge Trauger found that intervention by 7:10 more likely than not would have produced a cesarean delivery in time to avoid his injuries.

Virtually at the Point of Death

The government’s other defense moved the injury earlier. Dr. Joyce E. Johnson, a Vanderbilt pathologist, found acute chorioamnionitis, acute funisitis and a short umbilical cord, testified that those conditions reasonably likely contributed to the injury, and said the injury could have occurred before January 10, 2005. Bills testified that there was no way to tell when the hypoxic event occurred. He disputed that the decelerations before the heart rate fell were true late decelerations, and he called “subtle” late decelerations a “garbage term[]” too subjective to use.

The family’s physicians placed the injury in the last half hour before delivery. Dr. Garrett C. Burris, a pediatric neurologist, testified that the damaging event began after 7:30 a.m. and continued until the heart rate was restored after delivery, and he relied on umbilical cord samples showing significant metabolic acidosis. Dr. Edward H. Karotkin, a neonatologist, testified that a fetus with A.J.J.T.’s level of acidosis would not survive long without delivery, so that an earlier injury would most likely have ended in a stillbirth. Dr. Allen D. Elster, a neuroradiologist, read the brain injury as the pattern seen in infants who suffer an acute loss of blood flow and oxygen during labor and delivery.

Judge Trauger found that A.J.J.T. was healthy and normally developed until he suffered a severe hypoxic-ischemic brain injury shortly before his cesarean delivery. “In particular, A.J.J.T.’s dire status at the moment of delivery—which placed him virtually at the point of death—is strongly corroborative of a late-arising injury.” She found the testimony about alternative causes, the short cord among them, unpersuasive, and found that delivery before 7:30 a.m. would have avoided the injury.

Stiff Like a Board

Wilson testified that when she tried to hug A.J.J.T. as an infant, “he became stiff like a board.” By the trial he could not speak; he signaled thirst by coughing and hunger by moving his mouth. He could crawl awkwardly, sit without support and pull himself up to stand, but he could not walk, and many of his movements were involuntary. He wore diapers his mother changed. He could not feed himself, and she placed food, or a utensil against the roof of his mouth, to set off his chewing reflex. At 12 he weighed 60 pounds. The court also found that “he does experience pleasure and joy and that he feels an immense love for his family, particularly his mother and siblings.”

A.J.J.T. was the second of three children born to Wilson and Tavarez, and Wilson’s mother lived with the family and helped care for him. He had braces for his feet and needed a wheelchair, and medication now largely controlled the seizures he had experienced. He could take only a few drops of liquid at a time because he tended to choke, and his food had to be broken into small pieces. “He needs supervision throughout his day to keep him safe,” Judge Trauger wrote. She also watched a video of his routine.

Judge Trauger listed the abilities through which people take pleasure in life—communicating, moving around, controlling one’s body, using one’s hands, keeping oneself safe, being self-sufficient, tasting food and drink—and wrote: “A.J.J.T.’s injury has impaired him in all these regards.”

She awarded $6,466,888 for future medical care, built on the life-care plan of physiatrist Dr. Robert Cooper, and $2,186,600 for lost earnings, the figure of the family’s economist, Patricia L. Pacey, which the court adopted over the government economist’s $1,776,056 because her retirement-age assumptions were more plausible. She found a likely life expectancy of 57 to 60 years. Noneconomic damages came to $6.5 million: $500,000 for past pain and suffering, $1 million for future pain and suffering, $1 million for past loss of enjoyment of life, and $4 million for future loss of enjoyment of life and permanent impairment. The government had pointed to the cap on noneconomic damages Tennessee enacted in 2011; Judge Trauger noted that the injury happened in 2005, when Tennessee set those damages by ordinary tort principles. The total was $15,153,488.

“It’s heartbreaking to know I went into the hospital with a healthy son and that his injuries never should have happened,” Wilson said after the ruling. “I’m grateful Judge Trauger awarded enough to fund my son’s life care plan and to compensate him for his disabilities.” Her son was then 15.

Jowers said: “His mother should have never been in that position, at all, for several reasons. And that’s what the judge did a really impressive job communicating in her order.” Of the result he said: “I think the result we were able to achieve reflects justice in this situation as best as our courts have the ability to give.”

From the Cath Lab to the Placenta

Jowers graduated cum laude from The Citadel in 1998 with a degree in business administration and earned his law degree at the University of South Carolina School of Law in 2001. He is admitted in South Carolina, in the federal district court there, and in the Fourth and Sixth Circuits, and he served on the board of governors of the South Carolina Association for Justice from 2013 to 2019. Trial magazine published his article “Drug Advertising and Accountability” in 2003, “The Class Stops the Clock” in 2005 and, in October 2015, “Getting to the Heart of Wrongful Deaths in Catheterization Labs.” In October 2023, at the 23rd Annual Forum on Obstetric and Malpractice Claims in Philadelphia, he presented “Placental Pathology: A Plaintiff’s Perspective.” Placental findings were the evidence the government’s pathologist had offered in Nashville to move A.J.J.T.’s injury earlier.

At Janet, Janet & Suggs he concentrated on children with preventable brain injuries from negligent obstetric care and represented military families in claims against the government over care at military hospitals, appearing pro hac vice in states beyond South Carolina. “I think our servicemen and women are entitled to the best medical care, and when they don’t get that, my firm is pleased to represent them,” he said after the Fort Campbell ruling.

He also worked with South Carolina Attorney General Alan Wilson’s office on the state’s case against Cephalon Inc., pursued from 2011 under the South Carolina Unfair Trade Practices Act over the company’s promotion of prescription drugs for off-label uses. In September 2015, just before the South Carolina Supreme Court was to hear Cephalon’s appeal, the company paid the state $6 million to settle.

“As my track record shows, I tend to gravitate towards the challenging cases, often in jurisdictions where people tell me I can’t win,” Jowers has said. “But, what drives me is the challenge and the satisfaction of righting a wrong.”

A Rotation at WakeMed

On September 17, 2019, Laurel Browne was in labor at WakeMed’s Raleigh campus when the resident physician delivering her son noted a shoulder dystocia: the baby’s head had emerged, but a shoulder was stuck behind his mother’s pubic bone. The resident performed a fetal vertex rotation, which turns the baby’s head while the shoulder remains impacted and which Browne’s lawyers said should never be performed to relieve a shoulder dystocia. Naqah Lake was born with permanent damage to the nerves of his left brachial plexus, and his left arm, shoulder and hand are disabled for life.

Naqah weighed 9 pounds 6 ounces. About two minutes passed between the delivery of his head and the rest of his body, and the family’s complaint said he was not breathing and needed chest compressions and a breathing tube. He spent nine days in the neonatal intensive care unit, his left arm limp. When he was about six months old, surgeons tried to repair the damaged nerves and remove scar tissue. He was diagnosed with Erb’s palsy.

WakeMed’s defense was timing. The injury was to Naqah’s posterior shoulder rather than the anterior shoulder usually hurt in shoulder dystocia cases, which made causation harder to prove, and the hospital argued that the injury had occurred before birth, in utero. Against that theory Jowers and Weinstein had the resident’s own contemporaneous record that she had performed the fetal vertex rotation. They led the five-week trial of Lake v. WakeMed, File No. 22CVS011664-910, before Superior Court Judge Winston C. Gilchrist.

In July 2026 the twelve jurors unanimously found negligence and returned a verdict of $18.2 million: $2.2 million in economic damages and $16 million in noneconomic damages. North Carolina caps noneconomic damages in most medical-malpractice cases, with exceptions, and as of mid-July Judge Gilchrist was to decide after a later hearing whether an exception applies. “Ms. Browne is extremely grateful for the jury’s service and their verdict,” Jowers said. “This was a lengthy trial that was certainly a hardship for the jurors. They listened attentively throughout, engaged in lengthy deliberations, and reached a just verdict.”

“Baby Naqah had all five nerves in his left brachial plexus avulsed and ripped from his spinal cord at birth by the negligence of the doctor who performed a maneuver that should never have been performed,” Weinstein said. The jury, she said, had recognized “that Naqah will never be able to play sports that require both hands, hug his mother with both arms, hold his own child with both arms, or simply clap his hands, because of a ‘never maneuver.’”