Wale v. Barnes, 71-242

• Decision Date: 25 April 1972
• Docket Number: No. 71-242,71-242
• Citation: 261 So.2d 201
• Parties: Gary Patrick WALE, by his mother and next friend, Pamela Wale, and Pamela Wale, individually, Appellants, v. Sheldon H. BARNES et al., Appellees.
• Court: Florida District Court of Appeals

Page 201

261 So.2d 201

Gary Patrick WALE, by his mother and next friend, Pamela Wale, and Pamela Wale, individually, Appellants, v. Sheldon H. BARNES et al., Appellees.

No. 71-242.

District Court of Appeal of Florida, Third District.

April 25, 1972.

Rehearing Denied May 17, 1972.

Sams, Anderson, Alper & Spencer, Horton, Schwartz & Perse, Miami, for appellants.

Blackwell, Walker & Gray and James E. Tribble, Taylor, Brion, Buker, Hames, Greene & Whitworth, Miami, Fleming, O'Bryan & Fleming, Ft. Lauderdale, for appellees.

Before BARKDULL, C. J., and PEARSON and HENDRY, JJ.

PER CURIAM.

Plaintiffs, Gary Wale, a minor, and Pamela Wade, his mother, appeal from a final judgment of the Circuit Court of Dade County entered pursuant to a directed verdict granted in a jury trial in favor of the defendants, Dr. Sheldon H. Barnes and Dr. Raphael S. Good, at the conclusion of the plaintiffs' evidence. The doctors were sued individually and as partners for injuries sustained by the infant Gary as a result of the alleged negligence of Dr. Barnes in the performance of his duties as obstetrician while attending Mrs. Wale at the birth of her child, Gary.

In one count the complaint alleged that Dr. Barnes attended Mrs. Wale and undertook to deliver her child at Hialeah Hospital, on December 23, 1965; that while in the performance of his duties as obstetrician he carelessly and negligently used forceps on the head and body of her child, causing serious head and brain damages; that the use of forceps in aid of the birth of her child was error and negligence on the part of Dr. Barnes; and that Dr. Barnes negligently and carelessly failed to diagnose and treat her son's injuries. It is further alleged that the acts complained of constituted negligence and unskillful medical practice that departed from or fell below the standard of care of an obstetrician practicing in Dade County, Florida.

In a separate count of the complaint the plaintiffs allege trespass to the person in that Dr. Barnes did not inform Mrs. Wale that such method of delivery involved the risk that the child would receive bruises and lacerations to its head from the use of forceps and would result in subdural hematomas; that had she known of such risk she would not have consented to such method of delivery. Plaintiffs further allege that Dr. Barnes knew or should have known that there were other means of delivery which were equally effective and safer than the method used, but he failed to inform Mrs. Wale of these other methods. It is alleged that such acts and conduct constituted error, bad judgment and unskillful medical practice, and departed from and fell below the standard of care required of a physician in Dade County, Florida.

Defendants by their answers denied all allegations of negligence or wrongful conduct.

During the plaintiffs' presentation of their case at trial evidence was adduced showing that Mrs. Wale, the nineteen year old mother, was taken to Hialeah Hospital on the night of December 22, 1965, showing signs that she had reached the point where the birth of her child was approaching. She called a physician before going to the hospital who had agreed to deliver the child and was told by him to go to the hospital for delivery by a specialist. The specialist referred to was Dr. Barnes, whom she met there for the first time. After an examination, Dr. Barnes determined that she was not in labor but kept her in the hospital for observation because ruptured membranes were observed. When she awoke the next morning she was in labor and was taken into the hospital's labor room where she was examined and measured by Dr. Barnes. He determined from the measurement that the mother was small but adequate for a natural birth. He also determined that the baby was in an unfavorable position and would have to be turned by him if the child failed to turn spontaneously. After waiting for what he considered to be a sufficient time, the doctor determined that the child's movement had stopped and that there would not be a spontaneous turning of the child. He elected to manually turn the child (without forceps) and it was easily done; after the turn was made the child moved a bit nearer birth but stopped at 'plus three position.'

After waiting for further spontaneous movement and birth of the child, the doctor concluded that these events would not occur. He thereupon decided to use forceps for the delivery. The instrument used is what is known in the medical profession as long Tucker-McLane forceps. (The two types of forceps look like long-handled tongs. The Tucker-McLane forceps has thin, solid blades and a narrower shaft than does the Simpson forceps, with its solid, somewhat thicker and wider blades and slightly larger shaft.) A 'moderately difficult mid forceps delivery' was made in eight or ten minutes during which time the doctor applied compression and traction to the forceps on the baby's face approximately five times.

The child was born severely bruised, with black eyes, and a laceration on his scalp. The head was elongated but considerably 'molded.' Gary, Mrs. Wale's first child, weighed six pounds, six ounces at birth.

During the three...