Davila v. Bodelson, 7484
| Decision Date | 02 July 1985 |
| Docket Number | No. 7484,7484 |
| Parties | , Prod.Liab.Rep. (CCH) P 10,670 Malynda Taylor DAVILA, Individually and as Next Friend of Laramie Taylor, A Minor, Plaintiff-Appellant, v. Adrian H. BODELSON, M.D., and Parke, Davis & Company, Defendants-Appellees. |
| Court | Court of Appeals of New Mexico |
Plaintiff-Appellant Malynda Taylor Davila (plaintiff) appeals from a judgment in favor of Defendants-Appellees Parke, Davis and Company (Parke, Davis), and Adrian H. Bodelson, M.D. (Dr. Bodelson), in this medical malpractice-strict products liability case. The jury found that Parke, Davis was not liable under strict products liability, that Dr. Bodelson was not negligent, and that plaintiff was negligent, but that her negligence was not a proximate cause of her injuries. The trial court entered judgment based on the verdict. On appeal, plaintiff raises six issues. Plaintiff claims that the trial court committed reversible error in: (1) admitting evidence of plaintiff's prior abortions; (2) allowing Parke, Davis and Dr. Bodelson ten peremptory jury challenges; (3) granting Dr. Bodelson's motion in limine which limited plaintiff's cross-examination of Dr. Hutchison; (4) refusing to allow Laramie Taylor to be exhibited to the jury to show his disabilities; (5) giving Parke, Davis' requested jury instructions Nos. 24 and 32; and (6) in refusing to admit evidence of Parke, Davis' 1979 changes in its drug instructions and warnings, and in limiting plaintiff's cross-examination of Dr. Fuchs. We affirm.
Plaintiff became pregnant with Laramie Taylor (Laramie) in 1977, and consulted Dr. Paul Mackel (Dr. Mackel) for pre-natal care. She was admitted to St. Vincent Hospital on February 27, 1978, after her labor had begun. Dr. Mackel administered the drug Pitocin intravenously to her upon admittance, in order to prevent any hemorrhaging after the delivery. Pitocin is a synthetic drug, manufactured by Parke, Davis, which interacts with the uterine muscles to produce contractions of those muscles. Pitocin is most commonly used to induce or reinforce labor. Dr. Mackel used Pitocin as a standby measure, and not to produce a therapeutic effect. About one and a half hours after the administration of Pitocin, Dr. Mackel examined plaintiff and found that Laramie's head was turned sideways, and might be too wide to pass through the pelvis. He felt that forceps could rotate the head but, because he did not use them, he called Dr. Bodelson, an obstetric specialist, for assistance.
Dr. Bodelson examined plaintiff and determined there was room in the birth canal to allow the use of forceps. He felt no tetanic contractions, wherein the muscles are perpetually contracting. He initially determined that there was not an "absolute cephalopelvic disproportion" (CPD), which is a condition where the head is too large to fit through the pelvis. He proceeded to use forceps to rotate the head, but found that the baby could not be delivered with forceps. He then decided to do a Cesarean-section (C-section) delivery, which was performed. The decision to do a C-section was made three to five minutes after he had first tried to use the forceps, and about ten minutes after he had entered the delivery room. He stopped the Pitocin in order to replace it with a glucose-saline solution necessary for the C-section surgery. There were no surgical complications during the C-section. The Pitocin had run for about thirty to forty-five minutes.
At birth, however, Laramie showed signs of severe respiratory distress, which was not stabilized until about ten minutes after the birth. Approximately twenty-four hours after delivery, Laramie developed a seizure disorder, which continued intermittently for almost two years. In addition to the seizure disorder, Laramie developed cerebral palsy, manifesting motor and mental retardation.
Plaintiff brought an action against Drs. Bodelson and Mackel, St. Vincent Hospital, and Parke, Davis. She sued as an individual, and as the next friend of Laramie. St. Vincent Hospital and Dr. Mackel settled before trial.
At trial, plaintiff sought to establish that Pitocin caused severe contractions of the uterus which pinched off the blood supply to Laramie, resulting in a condition known as hypoxia, or a deprivation of oxygen in the brain. Plaintiff alleged that Parke, Davis was strictly liable for marketing a defective and unreasonably dangerous product. Plaintiff alleged that Parke, Davis failed to adequately warn of the danger of Pitocin, and failed to instruct on the proper administration of the drug, all of which proximately caused Laramie's brain damage. Plaintiff did not claim that Pitocin itself was unsafe or defective when accompanied by proper warnings and instructions.
Plaintiff further alleged that Dr. Bodelson was negligent in attempting a forceps delivery because he should have known from available information that a CPD existed, rendering a forceps delivery unworkable. Dr. Bodelson's delay in performing the C-section, argued plaintiff, caused Laramie to undergo an even longer period of oxygen deprivation brought about by the Pitocin. This delay contributed to Laramie's brain damage.
Dr. Bodelson argued that Pitocin would never have been used by Dr. Mackel if plaintiff had divulged her three prior abortions to him. Dr. Bodelson also contended that Dr. Mackel informed him that Laramie was in no distress when he (Bodelson) arrived. Moreover, Dr. Bodelson maintained that it was safe to make an attempt with the forceps when he did, and that a forceps delivery was quicker, easier and safer than a C-section procedure.
Parke, Davis argued that no evidence established that Pitocin caused the cerebral palsy, that its warnings and instructions were adequate, and, alternatively, that Dr. Mackel was negligent in using Pitocin because Pitocin is contraindicated where a CPD exists, and the existence of a CPD should have been recognized by Dr. Mackel.
Plaintiff had three abortions before her pregnancy with Laramie. During discovery, conflicting evidence was brought out as to whether plaintiff related this fact to Dr. Mackel at the beginning of his treatment of her. Dr. Mackel testified in his deposition, and at trial, that he discussed the issue of prior pregnancy with plaintiff, and that she denied any pregnancies. He also stated that he would not have used Pitocin had he known of these abortions because of the possibility of perforation and scarring of the uterus resulting from the abortions. He made this statement despite his subsequent testimony that his own examination of plaintiff revealed no perforation or scarring. Plaintiff testified that she did disclose her abortions to Dr. Mackel.
Plaintiff made a pre-trial motion in limine to exclude all reference to the abortions on the grounds that any probative value of this evidence was outweighed by the danger of unfair prejudice. The court denied the motion, but directed that any questions concerning prior abortions deal only with the fact of the abortions, and not the reason for the abortions. Plaintiff claims reversible error occurred in allowing the introduction of the evidence. Plaintiff also claims that the prejudice was compounded because, at trial, a question was asked as to the reason for one abortion, which was objected to, and never answered. Plaintiff argues that this violation of the court's previous order further supports reversal.
Relevant evidence means "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." NMSA 1978, Evid.R. 401 (Repl.Pamp.1983). However, although relevant, "evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice...." NMSA 1978, Evid.R. 403 (Repl.Pamp.1983). The appellate issue is whether the result of the trial court's balancing test under Rule 403 constituted an abuse of discretion. State v. Carr, 95 N.M. 755, 626 P.2d 292 (Ct.App.1981). An abuse of discretion is found when the trial court's decision is contrary to logic and reason. Three Rivers Land Co. v. Maddoux, 98 N.M. 690, 652 P.2d 240 (1982).
The issue of plaintiff's negligence, which was raised in the pleadings, was a fact of consequence to the determination of the action. Therefore, any evidence tending to establish that plaintiff breached the duty of ordinary care owed to herself, and that such breach was a proximate cause of the injuries complained of, was relevant. See NMSA 1978, UJI Civ. 3.2 and 16.1-16.4 (Cum.Supp.1984). The fact that plaintiff had earlier abortions and, according to Dr. Mackel, did not disclose the abortions to him, is, in itself, inconclusive on the issue of negligence and proximate cause. However, Dr. Mackel's statement that he would not have used Pitocin had he known about the abortions changed the circumstances. Plaintiff's case centered on the allegation that the misuse of Pitocin was a proximate cause of injury. The evidence that Pitocin would not have been used because of the abortions, and that plaintiff failed to disclose the abortions, had "a tendency to make" her negligence more probable than it would be without the evidence. Evid.R. 401. The evidence could be offered to show that plaintiff breached a duty of exercising ordinary care for her safety in failing to inform her treating physician of her complete medical history when questioned. ...
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