Barrett v. Harris

• Decision Date: 01 April 2004
• Docket Number: No. 1 CA-CV 03-0412.,1 CA-CV 03-0412.
• Citation: 86 P.3d 954,207 Ariz. 374
• Parties: Bernadette BARRETT and William Barrett, both individually, and as wife and husband, and as surviving parents of Emily Barrett, deceased, Plaintiffs-Appellants, v. Thomas HARRIS, M.D. and Patricia Harris, his wife; Neonatology Associates, Ltd., an Arizona business entity, Defendants-Appellees.
• Court: Arizona Court of Appeals

86 P.3d 954

207 Ariz. 374

Bernadette BARRETT and William Barrett, both individually, and as wife and husband, and as surviving parents of Emily Barrett, deceased, Plaintiffs-Appellants, v. Thomas HARRIS, M.D. and Patricia Harris, his wife; Neonatology Associates, Ltd., an Arizona business entity, Defendants-Appellees.

No. -0412.

Court of Appeals of Arizona, Division 1, Department A.

April 1, 2004.

Cluff & Associates By David H. Cluff, Mesa, Attorney for Plaintiffs-Appellants.

Bradford Law Offices, P.L.L.C. By Michael E. Bradford and Gallagher & Kennedy, P.A. By Wm. Charles Thomson, Kelly C. Mooney, Phoenix, Attorneys for Defendants-Appellees.

OPINION

TIMMER, Judge.

¶ 1 Emily Barrett, newborn daughter of Bernadette and William Barrett, tragically died as a result of an accident that occurred as a nurse administered "blow-by" oxygen to the baby through an endotracheal tube. In a subsequent lawsuit, the trial court granted judgment as a matter of law for Dr. Thomas Harris, Emily's treating neonatologist, on the Barretts' claims that he caused Emily's death both by failing to advise Mrs. Barrett that Emily would be at risk for respiratory problems if born prematurely and by instructing the nurse to administer blow-by oxygen. In deciding whether the court ruled correctly, we examine and apply principles relating to proximate cause. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2 On August 12, 1997, Mrs. Barrett, who was approximately 33 weeks pregnant and in labor, was hospitalized at Yuma Regional Medical Center ("YRMC") and eventually diagnosed with sepsis, a urinary tract infection, and severe cardiomyopathy. She was transferred to a Phoenix hospital for a possible high-risk delivery, but did not deliver. Following her discharge two weeks later, she returned to Yuma.

¶ 3 On September 4, Mrs. Barrett, who was then 36 weeks pregnant and nearing full term, complained to her obstetrician of flank pain. Suspecting a possible kidney infection, the obstetrician immediately prescribed treatment with antibiotics and admitted Mrs. Barrett to YRMC. For the sake of Mrs. Barrett's health, he recommended continuing this treatment for two days and then inducing labor. Unsure of this course of action, Mrs. Barrett arranged a consultation with Dr. Harris, a neonatalogist, to address, among other matters, her concerns about inducing pre-term labor.

¶ 4 During the consultation held the next day, Mrs. Barrett asked Dr. Harris whether the baby's lungs were sufficiently mature for early delivery. Dr. Harris answered that he had a "strong feeling that the baby should do well in all respects and that it was indeed time for delivery." Dr. Harris also stated that the stress of Mrs. Barrett's prior illness and her attendant treatment with steroids would have accelerated the development of her unborn child in a positive way. Dr. Harris did not inform Mrs. Barrett of any risks to her baby if labor were induced prematurely.

¶ 5 Mrs. Barrett's obstetrician induced labor on September 6, and Emily was born. She soon experienced difficulty breathing, and the next day Dr. Harris diagnosed Emily with respiratory distress syndrome. Dr. Harris surmised that Mrs. Barrett's prior illness had delayed the maturation of Emily's lungs, thereby causing the respiratory problems. Dr. Harris never informed Mrs. Barrett of this risk prior to Emily's birth.

¶ 6 Emily's respiratory condition continued to deteriorate. Consequently, on September 9, Dr. Harris inserted an endotracheal tube ("ET-tube") into Emily's windpipe in order to connect her to a respirator, which would assist her breathing. Dr. Harris then instructed nurse Peggy Neisen to deliver "blow-by" oxygen to Emily by placing a free-flowing concentration of oxygen near the baby's face, thus delivering oxygen to the baby's lungs through the ET-tube protruding from her mouth, until the connection was made to the respirator. In Dr. Harris' opinion, the administration of blow-by oxygen was the only way to get oxygen to Emily's lungs once the ET-tube was in place.

¶ 7 After giving the instruction to administer blow-by oxygen, Dr. Harris briefly turned his attention from Emily to the respirator settings. During this time, Nurse Neisen accidently brought the oxygen supply tube into such close proximity with the ET-tube that a closed system was created in which oxygen was rapidly introduced to Emily's lungs without any means of escape. As a result, Emily's lungs became hyperinflated until they collapsed, causing air to leak throughout her body, which inflicted severe injury. Five days later, Emily died as a result of complications from the hyperinflation injury.

¶ 8 The Barretts filed suit against Dr. Harris for negligence, medical malpractice, and wrongful death.¹ Among other allegations, the Barretts asserted that Dr. Harris was liable for (1) failing to inform Mrs. Barrett during the neonatal consultation that Emily's lungs might be immature at the time labor was induced, thereby putting her at risk for respiratory problems, and (2) instructing Nurse Niesen to administer blow-by oxygen. At the close of the Barretts' case presented in the subsequent jury trial, the court granted Dr. Harris' motion for judgment as a matter of law ("motion for JMOL") on these theories of liability. The court ruled that the Barretts had failed to establish either that the neonatal consultation or the instruction to use blow-by oxygen proximately caused Emily's death. Thereafter, the jury returned a verdict in favor of Dr. Harris on the Barretts' remaining theories of liability. After the court denied the Barretts' motion for new trial, this appeal followed.

STANDARD OF REVIEW

¶ 9 We review de novo the trial court's grant of the motion for JMOL, Gemstar, Ltd. v. Ernst & Young, 185 Ariz. 493, 505, 917 P.2d 222, 234 (1996), and consider the evidence and all reasonable inferences from the evidence in the light most favorable to the Barretts as the non-prevailing parties. Monaco v. HealthPartners of S. Ariz., 196 Ariz. 299, 302, ¶ 6, 995 P.2d 735, 738 (App.1999). The trial court properly granted the motion if the facts presented in support of the contested theories had so little probative value that reasonable people could not have found for the Barretts. Data Sales Co., Inc. v. Diamond Z Mfg., 205 Ariz. 594, 600, ¶ 29, 74 P.3d 268, 274 (App.2003); Ariz. R. Civ. P. 50(a)(1).

DISCUSSION

1. Neonatal consultation

¶ 10 The Barretts first argue that the trial court erred by granting the motion for JMOL on their claim that Dr. Harris acted negligently and committed medical malpractice by failing to advise Mrs. Barrett during their consultation that Emily would be at risk for respiratory problems if born prematurely. In order to prevail on this claim, the Barretts were required to prove, among other things, that Dr. Harris' omission proximately caused Emily's death. Standard Chartered PLC v. Price Waterhouse, 190 Ariz. 6, 28, 945 P.2d 317, 339 (App.1996) (negligence); Ariz.Rev.Stat. ("A.R.S.") § 12-563 (2003) (medical malpractice).

¶ 11 A plaintiff proves proximate cause, also referred to as legal cause,² by demonstrating a natural and continuous sequence of events stemming from the defendant's act or omission, unbroken by any efficient intervening cause, that produces an injury, in whole or in part, and without which the injury would not have occurred. Robertson v. Sixpence Inns of America, Inc., 163 Ariz. 539, 546, 789 P.2d 1040, 1047 (1990); Markiewicz v. Salt River Valley Water Users' Ass'n, 118 Ariz. 329, 338 n. 6, 576 P.2d 517, 526 n. 6 (App.1978). An "efficient intervening cause" is an independent cause that occurs between the original act or omission and the final harm and is necessary in bringing about that harm. Robertson, 163 Ariz. at 546, 789 P.2d at 1047. An intervening cause becomes a superseding cause, thereby relieving the defendant of liability for the original negligent conduct, "when [the] intervening force was unforeseeable and may be described, with the benefit of hindsight, as extraordinary." Id. (citations omitted).

¶ 12 Ordinarily, a plaintiff in a medical malpractice lawsuit must prove the causal connection between an act or omission and the ultimate injury through expert medical testimony, unless the connection is readily apparent to the trier of fact. Gregg v. Nat'l Med. Health Care Servs., Inc., 145 Ariz. 51, 54, 699 P.2d 925, 928 (App.1985). Causation is generally a question of fact for the jury unless reasonable persons could not conclude that a plaintiff had proved this element. Petolicchio v. Santa Cruz County Fair & Rodeo Ass'n, Inc., 177 Ariz. 256, 262, 866 P.2d 1342, 1348 (1994).

¶ 13 The trial court ruled that the Barretts failed to present sufficient evidence from which a reasonable juror could find that Dr. Harris' consultation proximately caused Emily's death. The court noted that the Barretts' causation expert, Dr. Jack Sills, testified that the sole cause of Emily's death was the hyperinflation of her lungs, which was caused only by Nurse Niesen's manner of administering blow-by oxygen. Dr. Sills, along with the Barretts' standard-of-care expert, Dr. Andre Vanderhal, additionally opined that absent the hyperinflation injury, Emily's condition was normal and her prognosis good. Because all the evidence showed that Emily would have been a typical, healthy baby absent the hyperinflation incident, the court concluded that even if Dr. Harris' advice caused Mrs. Barrett to agree to the inducement procedure, it did not cause Emily's death. The court alternatively ruled that the hyperinflation incident constituted a superseding cause that relieved Dr. Harris of liability.

¶ 14 The Barretts argue that the trial court erred in its ruling because they in fact presented sufficient evidence from which reasonable jurors could conclude that Dr. Harris' failure to inform Mrs. Barrett of the risk of respiratory problems associated with pre-term birth proximately...