Bostic ex rel. Brock v. About Women Ob/Gyn

• Decision Date: 18 April 2008
• Docket Number: Record No. 070410.
• Citation: 659 S.E.2d 290,275 Va. 567
• Court: Virginia Supreme Court
• Parties: Jaya Lee BOSTIC, by her Mother and Next Friend, Melanie M. BROCK v. ABOUT WOMEN OB/GYN, P.C., et al.

659 S.E.2d 290

275 Va. 567

Jaya Lee BOSTIC, by her Mother and Next Friend, Melanie M. BROCK v. ABOUT WOMEN OB/GYN, P.C., et al.

Record No. 070410.

Supreme Court of Virginia.

April 18, 2008.

William E. Artz, Arlington (John P. Ellis; Andrew J. Waghorn; Sher, Cummings and Ellis, on briefs), for appellant.

Ronald P. Herbert (LeClair Ryan, on brief), Richmond, for appellees.

Amicus Curiae: Virginia Trial Lawyers Association (Charles H. Smith, III; Gentry Locke Rakes & Moore, on brief), Roanoke, in support of appellant.

Present: HASSELL, C.J., KEENAN, KINSER, LEMONS, AGEE, and GOODWYN, JJ., and RUSSELL, S.J.

OPINION BY Senior Justice CHARLESS. RUSSELL.

The sole question presented by this appeal is whether the circuit court erred in permitting the defendant, at a jury trial in a medical malpractice case, to read and exhibit excerpts from medical literature without proper foundation or cautionary instructions.

Facts and Proceedings

Melanie M. Brock was the mother of a child, Jaya Lee Bostic, delivered at Potomac Hospital in Prince William County on May 8, 2000. Immediately after delivery, Jaya was diagnosed with Erb's palsy, a permanent paralysis of the arm.¹ The cause of the palsy was determined to be shoulder dystocia during delivery, an obstetric emergency in which the child's shoulder becomes trapped behind the mother's pubic bone.² If not promptly relieved, shoulder dystocia can result in stretching and avulsion of the cervical nerve roots in the child's brachial plexus,³ the undisputed cause of the child's injury in this case.

The mother, as next friend, brought this action on the child's behalf against About Women, OB/GYN, P.C. and Nancy Kuney, a certified nurse midwife who attended the mother during the delivery.

The foregoing facts are undisputed. The issue in the case is whether the child's injury resulted from Nurse Kuney's negligence or from maternal propulsive forces of labor. The plaintiff contends that the nurse midwife subjected the child's head to excessive downward traction during delivery, causing the stretching and avulsion of cervical nerves. The defendants contend that Nurse Kuney adhered to the appropriate standard of care and that the child's injury resulted from the propulsive forces of labor.

At a jury trial, the plaintiff produced expert medical testimony that the child's injury was the result of Nurse Kuney's application of excessive force to the child's head during delivery and that maternal propulsive forces of labor could not account for a permanent Erb's palsy. The defendants called Nurse Kuney as a fact witness but not as an expert on either the standard of care or on causation. Plaintiff's counsel, in her cross-examination, asked Nurse Kuney whether she agreed or disagreed with several excerpts from medical literature that had been admitted during the plaintiff's case. During redirect examination, defense counsel asked her further questions concerning the same excerpts. Then defense counsel turned to articles that had not been relied upon or established as reliable authority by any witness, and asked Nurse Kuney:

Q. "Obstetrics and Gynecology, Erb's Palsy, 1999. The overwhelming evidence indicts the propulsive nature of the stretching of the involved nerves over which the birth attendant has no control. Obstetrics and Gynecology, 2000." Do you agree with that?

A. Yes.

....

Q. Erb's palsy causation. During the past — this is in the Journal of Reproductive Medicine of 2005.

[Plaintiff's counsel]: If Your Honor, please, let me note an objection here. There is no expert that they're putting on that's going to testify to this conclusion.

[Defense counsel]: Dr. Feore will.

[Plaintiff's counsel]: No, he isn't, not if he's going to be consistent with his deposition.

[Defense counsel]: This is not standard of care. This is on causation.

Defense counsel resumed his redirect examination by continuing his quotation of the article:

"During the past 15 years studies have provided considerable indirect evidence that maternal propulsive forces are responsible for the injury leading to Erb's palsy."

[Plaintiff's counsel]: Just note my objection.

[The court]: I'll allow the question and give a curative instruction if Dr. Feore doesn't testify to that.

[Defense counsel]: Do you agree with that [, Nurse]?

A. Yes.

The defendants thereafter called Dr. J. Colman Feore, who qualified as an expert witness on the standard of care in the field of obstetrics and gynecology as well as the issue of causation in these fields. He testified that, from his review of the records and pretrial depositions, Nurse Kuney had comported with the appropriate standard of care in the delivery of the child. He further testified that he was unable, however, to form an opinion as to the cause of the child's Erb's palsy:

Q. But, Doctor, she had — there's a permanent injury. Doesn't that mean by definition you had to pull too hard?

A. No, it doesn't mean that. It means that there was pressure on the shoulder that created the Erb's palsy, in fact, affecting the brachial nerves in the neck. But that was caused by pressure of the shoulder against the pubic bone. Whether it came from the traction or downward of the baby's head or whether it was caused by other forces, I don't know. I don't think anybody can say that because, you know during the labor process, everything is coming into the pelvis; and as the head progresses down, the body may not because the shoulders are caught on the pelvis and so as the head comes down, you get the stretching. So that stretching occurs during the labor process during contraction, so I couldn't say one way or the other.

Defense counsel then exhibited to the jury, in the form of a projected slide, an article from the Journal of Reproductive Medicine, 2005, entitled "Erb's Palsy Causation: latrogenic or Resulting from Labor Forces?" Plaintiff's counsel objected that the article should not be shown to the jury until a foundation had been laid. The court responded, "Proceed." Defense counsel asked the witness if the article was "reasonably reliable on issues causing shoulder dystocia." The witness answered in the affirmative. Defense counsel then asked the witness if he agreed with the article. Plaintiff's counsel again objected: "In order to use any treatise on direct, this witness has to say two things: One, that ... he's relying upon these in forming his opinions and he finds the treatise to be reliable and authoritative.... until he says his opinions were based upon the article, he can't use it on direct." The court directed defense counsel to "[a]sk the question." Defense counsel then further examined the witness:

Q. Doctor, in reaching your opinions in this case, is that something you relied upon to talk to this jury?

A. Yes.

Q. Now, try again. Do you agree with the following: "During the past 15 years, studies have provided considerable indirect evidence that maternal propulsive forces are responsible for the injury leading to Erb's palsy." Do you agree with that?

A. I would use the word "could be responsible."

Plaintiff's counsel then cross-examined Dr. Feore as follows:

Q. Now, when did you arrive at the theory that an Erb's palsy injury in this case was caused by the propulsive forces of labor coming down the birth canal?

A. I didn't arrive at that conclusion.

Q. In fact, that didn't happen at all in this case; did it, Doctor?

A. I don't know if it did or not. That's the whole point.

....

Q. So that I'm clear, are you saying that it's your opinion in this case that the propulsive forces of labor, regardless of where this fetus was in the birth canal, the propulsive forces of labor are what the cause of the injury is?

A. What I'm saying is they could have been, not that they were.

Q. I want to know within a reasonable medical degree of probability whether that's your opinion. I'm not interested in possibility.

A. There is no reasonableness involved in this because we do not know. The baby was delivered and the baby had a Erb's palsy when it came out. What the cause of that particular Erb's palsy, I do not know.

Nevertheless, the witness reiterated his opinion that Nurse Kuney had adhered to the appropriate standard of care.

Dr. Feore was the defendants' only expert witness on causation and the last witness to testify at trial. After his testimony, the court recessed for the evening. The following morning, when the court met with counsel to consider jury instructions, plaintiff's counsel asked for a curative instruction to caution the jury to disregard the findings contained in the article to which he had objected, on the ground that no foundation had been laid for its admission as substantive evidence. The court refused the curative instruction, observing that the request came too late. In final argument, defense counsel read to the jury the article objected to by the plaintiff, displayed it on a projected slide, and said: "This is all in the literature. I'm not making this up. It's not a suspicion."

The jury returned a verdict for the defendants and we awarded the plaintiff an appeal.

Analysis

Code § 8.01-401.1 was amended in 1994 to add the following paragraph:

To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals or pamphlets on a subject of history, medicine or other science or art, established as a reliable authority by testimony or by stipulation shall not be excluded as hearsay. If admitted, the statements may be read into evidence but may not be received as exhibits. If the statements are to be introduced through an expert witness upon direct examination, copies of the statements shall be provided to opposing parties thirty days prior to trial unless otherwise ordered by the court.

We interpreted this paragraph in Weinberg v. Given, 252 Va. 221, 476 S.E.2d 502 (1996), in which we held that...