Chater v. Central Vermont Hosp.

• Decision Date: 28 September 1990
• Docket Number: No. 88-576,88-576
• Citation: 583 A.2d 889,155 Vt. 230
• Parties: Maude and Michael CHATER v. CENTRAL VERMONT HOSPITAL.
• Court: Vermont Supreme Court

Page 889

583 A.2d 889

155 Vt. 230

Maude and Michael CHATER v. CENTRAL VERMONT HOSPITAL.

No. 88-576.

Supreme Court of Vermont.

Sept. 28, 1990.

Robert D. Rachlin, Robert B. Luce and Ernestine G. Abel of Downs Rachlin & Martin, Burlington, for plaintiffs-appellants.

Peter B. Joslin and Jeffrey W. White of Theriault & Joslin, P.C., Montpelier, for defendant-appellee.

Before ALLEN, C.J., DOOLEY, J., BARNEY, C.J. (Ret.), and SPRINGER, District Judge (Ret.), Specially Assigned.

ALLEN, Chief Justice.

Plaintiffs, the parents of a child born at the Central Vermont Hospital, sued the hospital on their own behalf and for the child, alleging that the hospital's negligence during the child's birth resulted in the child's cerebral palsy and spastic quadriplegia and caused the parents to suffer emotional distress. The jury returned a verdict in defendant's favor, and plaintiffs appeal on the grounds that the court gave erroneous jury instructions, limited the child's appearance in court, and refused to grant a new trial. We affirm.

Plaintiff Maude Chater was an obstetrical patient of Dr. Arthur G. Spector, a member of the medical staff at defendant hospital. Prior to the expected delivery date, a sonogram revealed that the fetus was in the breech position, and a caesarean section was planned. Mrs. Chater went into labor two days before the planned delivery and was admitted to the hospital at 1:55 p.m. Despite increasing labor and some signs of fetal distress, no fetal monitor was employed until 5:50 p.m., at which time, in plaintiffs' view, it indicated acute distress. The caesarean was not performed until 6:35 p.m., and the child Benjamin Chater was born asphyxiated, with no respiration or heartbeat. He was subsequently diagnosed as having cerebral palsy and is confined to a wheelchair for life, with multiple disabilities.

Plaintiffs' case against defendant hospital ¹ was based on their contentions that a mother with a fetus in the breech position is considered to be in "high risk" labor, that Mrs. Chater's amniotic fluid indicated particular difficulties shortly after her admission to the hospital, and that numerous hospital practices and procedures failed to meet appropriate standards of care. Specifically, plaintiffs sought to prove that defendant hospital ignored national standards regarding the use of electronic fetal heart monitoring; that the hospital had a policy of not opening a second operating room except in case of emergency, so that Mrs. Chater's delivery was unduly delayed; that the hospital allowed Dr. Spector to practice alone, without providing for, or insisting on, alternative coverage when he was not available; that hospital nurses did not respond after noting the fetus's accelerated heart rate, as required by national standards, or take any of the numerous steps that plaintiffs contend are mandated in such circumstances; and that the hospital's chief of obstetrical services, though aware of the emergency, refused to assist in the delivery.

There is no dispute that the child's condition resulted from brain damage caused by severe oxygen deprivation in the last minutes before he was born. Plaintiffs' contend that the hospital could have prevented the delay that resulted in the permanent impairments.

Following presentation of evidence, the jury was asked to answer two questions on the verdict form. In response to the first question, the jury found the hospital negligent in its care of the mother and unborn child. On the second question, the jury found that this negligence had not proximately caused the child's injuries.

I.

On appeal, plaintiffs first argue that the trial court erred in instructing the jury on proximate cause. The instruction was given as follows:

If you should determine, by a preponderance of the evidence, that there was a breach of duty owed to Plaintiffs as I have instructed, you must then determine whether that breach or breaches of the standard of care was or were the proximate cause of the Plaintiffs' injuries. You cannot find the Defendant liable simply because you may find that the Defendant breached a duty or standard of care. In other words, there must be some connection between the Defendant's actions and the Plaintiffs' injuries. This connection is called proximate cause. For example, if you should find that the Defendant failed to follow some applicable standard but that the failure to do so had no impact on what happened to the Plaintiffs, then you have not found proximate cause and you must find for the Defendant. Simply put, the mere failure to do something is not a basis for recovery unless it was a negligent failure and legally caused the injury or damage. The Plaintiffs must prove that the conduct complained of was a cause in fact of the allege[d] injuries.

You have found proximate cause if it appears to you from the evidence in the case that the Defendant's negligence played a substantial part in bringing about the Plaintiffs' injuries and that the injuries to the Plaintiffs were in whole or in part a direct result or a reasonably probable or natural consequence of the Defendant's actions. In a medical malpractice case, you may not presume that the hospital was negligent solely because the patient had a bad outcome from the physician's treatment.

Where two or more proximate causes combine to produce an injury, a recovery may be had if the Defendant is responsible for any one of them, though it may not be responsible for the others. As you know, the Plaintiffs originally sued both Dr. Arthur Spector and the Central Vermont Hospital. The Plaintiffs have settled with Dr. Spector. The Plaintiffs claimed that both Dr. Spector and the Central Vermont Hospital were negligent. If you find that the negligent action or negligent inactions of the Central Vermont Hospital was a proximate cause, in any part, of injury on the part of the Plaintiffs, then you should find in favor of the Plaintiffs even if you find that Dr. Spector was also responsible for the Plaintiffs' injury.

Plaintiffs contend first that "[b]y using the term 'substantial part' without elaboration, the court improperly suggested that proximate cause was related to a 'quantity' of conduct. This was extremely prejudicial to Plaintiffs' case." Plaintiffs concede that the phrase "substantial factor" would have been acceptable, but that "substantial part" implies a particular fraction of the total causative factors.

Defendant responds, and the record confirms, that plaintiffs' counsel objected to the use of the word "substantial," but never complained about the use of the word "part." The following discussion took place during the in-chambers conference on jury instructions:

[Counsel for plaintiffs]: I think, first of all, what we lawyers mean by a substantial part may not be what a lay person understands by that term. They may take "substantial" to mean that it was more than 50 percent. I would say that you might say "play a material part " or "played a significant part." I think "significant" says the same thing without having the implication of mass that "substantial" has.

....

THE COURT: I always use the word "substantial." I guess I'll stick with it.

[Counsel for plaintiffs]: Well, we would indicate our respectful objection to the word, despite the fact that it is time honored. (Emphasis added.)

Although no objection to the word "part" has been preserved, our consideration of the word "substantial" leaves us convinced that no error occurred in any event. In the context of the entire instruction, the use of the phrase "substantial part" did not connote any particular quantum of proximate cause. This distinguishes the instant instruction from that given in McDowell v. Davis, 104 Ariz. 69, 448 P.2d 869 (1968). In that case, the jury instruction stated:

Ladies and gentlemen, another test of proximate cause recognized by our law may be helpful to you. Was the negligent act of the party under consideration a material element or a substantial factor in producing the injury? An act or an omission cannot be a proximate cause if it contributes only slightly or possibly to the result, for a proximate cause is one which is a material element or a substantial factor in causing the injury.

Id. at 71, 448 P.2d at 871 (emphasis in original). The court emphasized that it was the contrast between the "slightly or possibly" language and the word "substantial" that resulted in prejudicial error. As the court put it, "[t]he instruction in using the word 'slightly' confirms the meaning of 'substantial' as 'abundance,' largeness as opposed to smallness." Id. at 72, 448 P.2d at 872.

There was no such contrast in the instruction before us. On the contrary, the balance of the instruction left no doubt that "substantial part" was not a phrase inviting any kind of quantification. The court instructed that, if the jury found defendant's negligence to be "a proximate cause, in any part, of injury on the part of the Plaintiffs, then you should find in favor of the Plaintiffs even if you find that Dr. Spector was also responsible for the Plaintiffs' injury." (Emphasis added.)

If one were to search the instruction for complementary or contrasting language, the parallel use of "part" in the phrases "substantial part" and "in any part" made clear that "substantial" in the former instance connoted merely that which was more than trivial or inconsequential.

We do not agree with plaintiffs that the court's instruction lent a quantitative connotation to the word "substantial." Therefore, it is not necessary to comment extensively on plaintiffs' next assertion of error--the trial court's failure to follow instruction language agreed upon by the parties, which stated that "[i]f you should find that the action or inaction of the Central Vermont Hospital was a proximate cause, in any part, of injury on part of the plaintiff, then you must find in favor of the plaintiff even if you find that Dr. Spector was equally...