Debar v. Women & Infants Hosp.

Decision Date29 November 2000
Docket NumberNo. 99-91-Appeal.,99-91-Appeal.
Citation762 A.2d 1182
PartiesMontee DEBAR et al. v. WOMEN AND INFANTS HOSPITAL et al.
CourtRhode Island Supreme Court

Present WEISBERGER, C.J., and LEDERBERG, BOURCIER, and GOLDBERG, JJ.

Mark H. Grimm, Providence, for Plaintiff.

David W. Carroll, Timothy P. Gallogly, Providence, for Defendant.

OPINION

BOURCIER, Justice.

This case comes before us on appeal following entry of judgment as a matter of law in favor of the defendants in a Superior Court medical malpractice and wrongful death action.

In December 1991, Flexman Johnson and Montee Debar (plaintiffs) filed a civil action against Women and Infants Hospital and several of its physicians (defendants), alleging their negligence in failing to order a timely cesarean section to have caused the death of their infant.1 All the physicians named in the complaint specialized in obstetrics and gynecology and treated plaintiff Debar during the final stages of her pregnancy. In October 1998, a Superior Court justice granted the defendants' Super.R.Civ.P. 50 motion for judgment as a matter of law after excluding the testimony of one of the plaintiff's expert witnesses.

On appeal, the plaintiffs assert that the trial justice abused his discretion in (1) excluding the testimony of their expert witness on causation, (2) denying their motion to reopen voir dire of the expert witness, (3) denying their motion to continue the case, (4) denying their motion to stay the decision excluding the expert testimony pending an appeal, and (5) denying their motion for a new trial. For the reasons hereinafter set out, we reverse, vacate the judgment and order a new trial.

I Facts and Case Travel

On the afternoon of June 5, 1989, plaintiff Debar, almost forty two weeks pregnant and suffering from gestational diabetes, went to the defendant Women and Infants Hospital for an ultrasound. The ultrasound revealed diminished amniotic fluid in the amniotic sac, which may lead to decelerations in the fetal heart rate and to a decrease in oxygen flow to the fetus. Such a decrease in oxygen may in turn cause asphyxia, leading the fetus to gasp for air. This gasping for air is said to cause aspiration of meconium2 into the fetus's lungs, which if not expelled can prevent breathing and ultimately lead to cardiac arrest. The plaintiff Debar subsequently was admitted to the hospital's emergency room.

Following a decision to induce labor, the plaintiff Debar's fetus in fact suffered from decelerations in its heart rate. From 4:30 p.m. on the day of her admission and into the following morning, a fetal heart rate monitor strip recorded decelerations in the fetal heart rate. By 3:50 a.m., the defendants observed thick meconium present in the fetus. From approximately 6:45 a.m. to 7 a.m., the fetus suffered more severe decelerations. Despite these decelerations and the presence of meconium, the defendants elected not to order a cesarean section. Instead, a blood sample was ordered taken from the fetus's scalp to determine whether the fetus remained at risk for meconium aspiration.3 The blood sample revealed the fetus's pH level to be within normal range. The defendants subsequently ordered an amnioinfusion4 to reduce the risk of further decelerations.

Despite the efforts of the defendants, at approximately 7:40 a.m. and 8 a.m., the fetus suffered severe decelerations. After this last series of decelerations, the defendants finally ordered a cesarean section at 8:15 a.m. On delivery by cesarean section at 8:38 a.m., the baby was found to have aspirated meconium into her lungs. The baby was pronounced dead approximately thirty-seven minutes after delivery. An autopsy determined that the cause of death was cardiac arrest as a result of meconium aspiration syndrome and bilateral pneumothoraces.5

During trial, the plaintiffs had introduced the testimony of Dr. Thomas Barden, who testified that the defendants had deviated from the accepted standard of medical care in failing to perform a cesarean section at or about the time of the 6:45 a.m. decelerations. He testified that he believed that if a cesarean section had been performed at that time the baby would have survived this episode "long enough that at least it would be sustainable." Nevertheless, he opined that "whether [the infant] may have eventually died as a result of the consequences of the disease is not something that I should try to answer, because I'm not a pediatrician."

To supplement the testimony of Dr. Barden and prove causation, the plaintiffs intended to rely exclusively upon the testimony of Dr. Daniel Adler, a board-certified pediatrician and pediatric neurologist. Doctor Adler was prepared to testify that had a cesarean section been ordered and performed at or about the same time of the 6:45 a.m. decelerations, the Debar fetus would have survived. He proposed to testify that after the 6:45 a.m. decelerations, the fetus aspirated substantial amounts of meconium into her lungs, particularly between 8 a.m. to 8:15 a.m.

At trial, Dr. Adler testified before the jury. He related that he was a graduate of the Albert Einstein College of Medicine (AECM) and had completed a pediatric residency at the Columbia-Presbyterian Medical Center, during which he treated newborns stricken with meconium aspiration syndrome. He also testified that he later completed a fellowship in pediatric neurology, during which he treated newborns in AECM's intensive care unit. Later, as a faculty member at AECM, Dr. Adler focused primarily on pathology. Subsequently, he was retained by a community hospital, doing the bulk of his work in pediatric epilepsy and in the community hospital's newborn intensive care unit. He testified that he had been retained as a consultant in numerous cases involving children with neurological problems arising from birth complications, usually caused by asphyxia.

Doctor Adler further testified that in the course of his experience, he had frequently reviewed "every piece of data" from pathology reports to obstetrical records in treating newborns with birth defects. As part of this analysis, Dr. Adler often interpreted fetal heart monitor strips, pathology slides, and fetal scalp pH levels. When plaintiffs' counsel sought to elicit the doctor's opinion about whether the defendants' failure to undertake an earlier cesarean delivery was a proximate cause of infant Debar's death, the defendants objected to Dr. Adler's proffered testimony on the ground that he lacked the requisite qualifications to offer an opinion on causation, and requested to voir dire the doctor. During the voir dire, Dr. Adler acknowledged that he did not consider himself an expert in the specialty of fetal monitoring or obstetrics.

Upon completion of the voir dire, the defendants objected to the doctor's being permitted to testify about the cause of infant Debar's death. Of his own accord, the trial justice then offered the following commentary:

"I'm concerned with the overlap of the specialty of obstetrics and GYN with pediatrics. * * * I can understand the pediatrician saying that he would like very much to understand something about the fetal life of the baby, but in matters that relate to the discipline of obstetrics, the pediatrician will usually defer — and I think this witness has indicated that he defers to the obstetrician."

The trial justice later concluded:

"I think there is going to be and is an issue in this case concerning meconium, when it was aspirated * * *. This condition, it seems to the Court to be far afield of this doctor's expertise. I'm not concerned by the label of pediatric neurology, but I noticed in reviewing with the court reporter that the doctor answered that he's not really involved in the delivery of the babies, but he takes over after that."

The trial justice then sustained the defendants' objection to the proposed causation opinion from the doctor. The plaintiffs' counsel then proceeded to make an extended offer of proof about Dr. Adler's proposed opinion testimony, which the trial justice rejected.

The plaintiffs' counsel thereafter immediately moved (1) to reopen the voir dire concerning Dr. Adler's qualifications, (2) to continue the case, allowing the plaintiffs an opportunity to retain a new expert, and (3) to stay the case pending appeal of the trial justice's ruling, all of which were denied. The trial justice then entertained and granted the defendants' Rule 50 motion for judgment as a matter of law. The plaintiffs then filed a motion for a new trial pursuant to Rule 59 of the Superior Court Rules of Civil Procedure, citing as reason the error of the trial justice in excluding Dr. Adler's proposed testimony. The trial justice denied the motion for a new trial. In doing so, he noted that allowing Dr. Adler's opinion testimony would be tantamount to permitting a pediatric neurologist "to make a determination which required a skillful interpretation of obstetrical data" and "to do nothing but speculate on the question of causation."

II Exclusion of Dr. Adler's Testimony

The plaintiffs assert here on appeal that the trial justice abused his discretion by excluding Dr. Adler's testimony on an "intractable assumption" that Dr. Adler was not qualified to determine whether an earlier cesarean section would have saved the baby's life because such an opinion required an interpretation of obstetrical data and that Dr. Adler was not an obstetrician.

The determination of whether to qualify and permit an expert witness to proffer an expert opinion relative to an issue in dispute is left to the discretion of the trial justice and this Court will not disturb that determination absent clear error or an abuse of that discretion. See Sheeley v. Memorial Hospital, 710 A.2d 161, 164 (R.I.1998); Richardson v. Fuchs, 523 A.2d 445, 447 (R.I.1987). Nevertheless, as this Court has also opined,

"To say, however, that the question is addressed to the trial justice's discretion does not mean that his...

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