Asher v. Ob-Gyn Specialists, P.C.

• Decision Date: 09 May 2014
• Docket Number: No. 12–0302.,12–0302.
• Citation: 846 N.W.2d 492
• Parties: Alan ASHER and Larysa Asher, as Parents and Next Friends of Alexandra Asher, a minor, and Alan Asher and Larysa Asher, Individually, Appellees, v. OB–GYN SPECIALISTS, P.C., and Anthony A. Onuigbo, M.D., Appellants.
• Court: Iowa Supreme Court

846 N.W.2d 492

Alan ASHER and Larysa Asher, as Parents and Next Friends of Alexandra Asher, a minor, and Alan Asher and Larysa Asher, Individually, Appellees,
v.
OB–GYN SPECIALISTS, P.C., and Anthony A. Onuigbo, M.D., Appellants.

No. 12–0302.

Supreme Court of Iowa.

May 9, 2014.

[846 N.W.2d 494]

David L. Baker, Cedar Rapids, and James A. Gerk and Christine L. Conover of Simmons Perrine Moyer Berman PLC, Cedar Rapids, for appellants.

Mark McCormick of Belin McCormick, P.C., Des Moines, and H. Daniel Holm Jr., Max E. Kirk, and Eashaan Vajpeyi of Ball, Kirk & Holm, P.C., Waterloo, for appellees.

APPEL, Justice.

In this professional negligence action, we consider whether the district court committed reversible error by providing the jury with a causation instruction based upon the Restatement (Second) of Torts rather than an instruction based upon the Restatement (Third) of Torts, as adopted by this court in Thompson v. Kaczinski, 774 N.W.2d 829, 839 (Iowa 2009). We also consider whether substantial evidence supported submission of two specifications of negligence to the jury, one based on a physician's use of a vacuum extractor during the delivery of a baby and another based on the physician's failure to keep adequate documentation of the labor and delivery process.

For the reasons expressed below, we conclude that although the district court should have submitted a causation instruction based upon the Restatement (Third) of Torts and Thompson, the error was harmless under the facts and circumstances of this case. We further conclude substantial evidence supported submission of the two challenged specifications of negligence to the jury.

I. Factual Background and Proceedings.

A. Overview of Proceedings. Larysa Asher was admitted to Covenant Medical Center (Covenant) in Waterloo for the delivery of a baby. The physician providing delivery services at Covenant was Dr. Anthony A. Onuigbo. Unfortunately, the baby was born with a brachial plexus injury and broken clavicle. Asher and her husband filed an action individually and as parents and next friends of their minor child, asserting Onuigbo was negligent in connection with the delivery of the baby.¹

[846 N.W.2d 495]

After substantial discovery and a two-week trial, the district court instructed the jury. Instruction No. 12 asserted Asher had to prove Onuigbo was negligent in at least one of the following ways:

A. In failing to document the progress of descent during the second stage of Larysa Asher's labor;

B. Using a [vacuum extractor] to assist in the delivery of [the baby];

C. In failing to perform a cesarean section on Larysa Asher for the purpose of delivering [the baby];

D. In failing to recognize and diagnose [the baby's] shoulder dystocia;

E. In failing to perform proper maneuvers to deliver [the baby] after she developed shoulder dystocia;

F. By applying excessive lateral and/or rotational traction to [the baby's] head in an effort to deliver her.

Instruction No. 12 further informed the jury it could award damages only if it found Onuigbo's negligence was a proximate cause of the damage. Onuigbo objected to the instruction, arguing Asher failed to present substantial evidence of a causal link between any failure to document and the alleged harm or the use of the vacuum extractor and the alleged harm.

The district court also instructed the parties on causation. Instruction No. 13 instructed the jury as follows:

The conduct of a party is a proximate cause of damage when it is a substantial factor in producing damages and when the damage would not have happened except for the conduct.

“Substantial” means the party's conduct has such an effect in producing damage as to lead a reasonable person to regard it as a cause.

Onuigbo objected to Instruction No. 13 on the ground that while it would have been proper in the past, Thompson substantially altered the law of causation and the instruction did not reflect the current state of the law.

The jury found in favor of Asher and awarded substantial damages. After the district court denied Onuigbo's posttrial motions, he appealed. On appeal, Onuigbo claims Instruction No. 13 inaccurately reflected the current state of the law in light of Thompson and, as a result, the judgment must be vacated and the case remanded for a new trial. Onuigbo also claims there was insufficient evidence to support a finding of negligence based upon the failure to document the progress of the fetus's descent through the birth canal during the second stage of labor or the use of the vacuum extractor to assist in the delivery. Onuigbo argues that because the jury returned a general verdict and it is not possible to determine whether the verdict was based upon a valid theory of negligence, the verdict cannot stand.

B. Overview of Trial Record. Because we are reviewing whether substantial evidence supported submission of certain instructions to the jury, we view the evidence in the light most favorable to the party advocating submission of the instructions. See Hoekstra v. Farm Bureau Mut. Ins. Co., 382 N.W.2d 100, 107–08 (Iowa 1986). Viewing the facts in the light most favorable to Asher, a reasonable jury could have found the facts as follows.

Larysa began experiencing contractions on the morning of November 7, 2006. Her husband drove her to Covenant, where they arrived at approximately 7:05 a.m. At 10:00 p.m., Larysa's medical chart indicates she was completely dilated, meaning the first stage of her labor was complete.

[846 N.W.2d 496]

Though there had been some documentation of the fetus's station, or position, in the birth canal prior to this time, as recently as 8:00 p.m., there was no documentation of the fetus's station at 10:00 p.m. From this point until the birth of the baby at 2:26 a.m., there was no further documentation of the fetus's station, although either Onuigbo or another member of the medical team performed vaginal exams at 11:54 p.m. and 1:47 a.m.

Larysa experienced a protraction disorder during the first and second stages of labor. A protraction disorder occurs when the fetus's descent through the birth canal proceeds at an unusually slow rate. The severe protraction of the second stage of labor indicated the fetus was having trouble moving past the pelvic bone. During the second stage of labor, Onuigbo breached the standard of care by not performing enough vaginal examinations and by not documenting the progress of the labor and the station of the fetus in the birth canal.

The protracted labor and lack of adequate progress posed a risk of harm to the baby. Onuigbo did not discuss the risk of harm with his patient. Onuigbo then used a vacuum extractor to help draw the baby into position for delivery. The baby's shoulder became lodged against Larysa's pubic bone, a condition known as shoulder dystocia. Instead of performing maneuvers to free the lodged shoulder, Onuigbo applied lateral traction, causing injury to the baby's brachial plexus nerves.

II. Standard of Review.

“We review a claim that the district court gave an instruction not supported by the evidence for correction of errors at law.” Pavone v. Kirke, 801 N.W.2d 477, 494 (Iowa 2011). “ ‘We review the related claim that the trial court should have given the defendant's requested instructions for an abuse of discretion.’ ” State v. Marin, 788 N.W.2d 833, 836 (Iowa 2010) (quoting Summy v. City of Des Moines, 708 N.W.2d 333, 340 (Iowa 2006)). The trial court commits legal error “when it materially misstates the law.” Anderson v. Webster City Cmty. Sch. Dist., 620 N.W.2d 263, 265 (Iowa 2000). An error in giving an instruction “does not warrant reversal unless the error is prejudicial to a party.” Herbst v. State, 616 N.W.2d 582, 585 (Iowa 2000). “Errors in jury instructions are presumed prejudicial unless ‘the record affirmatively establishes there was no prejudice.’ ” State v. Murray, 796 N.W.2d 907, 908 (Iowa 2011) (quoting State v. Hanes, 790 N.W.2d 545, 551 (Iowa 2010)). “ ‘When the error is not of constitutional magnitude, the test of prejudice is whether it sufficiently appears that the rights of the complaining party have been injuriously affected or that the party has suffered a miscarriage of justice.’ ” Marin, 788 N.W.2d at 836 (quoting State v. Gansz, 376 N.W.2d 887, 891 (Iowa 1985)).

When a jury returns a verdict based upon a specification of negligence, there must be substantial evidence to support the verdict. See Vachon v. Broadlawns Med. Found., 490 N.W.2d 820, 822 (Iowa 1992) (“The submission of instructions upon issues that have no support in the evidence is error.”); see also City of Cedar Falls v. Cedar Falls Cmty. Sch. Dist., 617 N.W.2d 11, 16 (Iowa 2000) (finding substantial evidence supported findings of negligence under multiple specifications). Evidence is substantial enough to support a specification of negligence where “a reasonable mind would accept it as adequate to reach a conclusion.” Bride v. Heckart, 556 N.W.2d 449, 452 (Iowa 1996). In considering whether the instruction is supported by substantial evidence, we give the evidence the most favorable construction it will bear in favor of supporting the

[846 N.W.2d 497]

instruction. See Hoekstra, 382 N.W.2d at 107–08. Where the district court submits to the jury a specification of negligence not supported by the evidence and the jury returns a general verdict, reversal is required. Nichols v. Westfield Indus., Ltd., 380 N.W.2d 392, 396–97 (Iowa 1985); Childers v. McGee, 306 N.W.2d 778, 780 (Iowa 1981).

III. Discussion of the Causation Instruction.

A. Positions of the Parties. Onuigbo maintains Instruction No. 13 was erroneous and should not have been given. Onuigbo's argument is rooted in Thompson. In Thompson, we noted the formulation of proximate cause by way of a substantial-factor test in prior law “ha[d] been the source of significant uncertainty and confusion.” 774 N.W.2d at 836. As a result, we adopted the standard as articulated by the drafters of the Restatement (Third) of...