Dixon v. Crete Medical Clinic, P.C.

Decision Date17 August 2007
Docket NumberNo. 06-3691.,06-3691.
PartiesAngel Dawn DIXON, a minor child by and through her natural mother, Misty Atkinson as next friend and natural guardian; Misty Atkinson, Appellants, v. CRETE MEDICAL CLINIC, P.C.; Russell Ebke, M.D.; City of Crete, Nebraska; Crete Municipal Hospital; Crete Area Medical Center, a nonprofit corporation and subsidiary of BryanLGH Health Systems, Inc., Appellees.
CourtU.S. Court of Appeals — Eighth Circuit

Patrick J. Cullan, argued, Daniel B. Cullan and Paul W. Madgett, on the briefs, Omaha, NE, for appellant.

Mark E. Novotny, argued, William R. Settles, on the brief, Omaha, NE, for appellee.

Before MELLOY, BOWMAN, and GRUENDER, Circuit Judges.

BOWMAN, Circuit Judge.

Misty Atkinson and her minor daughter, Angel Dixon (collectively, the Plaintiffs), sued the City of Crete, Nebraska; Crete Medical Clinic; Crete Municipal Hospital; Crete Area Medical Center; and Dr. Russell Ebke (collectively, the Defendants) under Nebraska law,1 alleging that the Defendants were negligent in providing the prenatal, labor and delivery, and post-delivery treatment associated with the birth of Angel Dixon on May 13, 1998. Pursuant to 28 U.S.C. § 636 and with the consent of the parties, the matter was tried before a Magistrate Judge,2 who granted judgment in favor of the Defendants. The Plaintiffs appeal, and we affirm.

On December 1, 1997, Misty Atkinson learned that she was pregnant with Angel. On December 16, 1997, Dr. Ebke, a family-practice physician with training and experience in obstetrics and gynecology, examined Atkinson and noted that she was fifteen years old, stood five feet tall, weighed 142 pounds, and was roughly four months' pregnant. After a physical examination, Dr. Ebke concluded that Atkinson's pelvis was of adequate size and shape for a vaginal delivery. During this visit, Atkinson admitted to Dr. Ebke that she had smoked cigarettes, consumed alcohol, and used illegal drugs prior to her pregnancy, but she denied having engaged in any of this behavior after learning that she was pregnant.

Over the course of her pregnancy, Atkinson gained a significant amount of weight, which led Dr. Ebke on April 27, 1998, to recommend bed rest for Atkinson for the remainder of her pregnancy. Tests conducted on April 30 for pregnancy-induced hypertension were negative, and Dr. Ebke scheduled Atkinson for induction of labor to begin on May 12, 1998.

When she arrived at Crete Municipal Hospital for the delivery, Atkinson was briefed on the labor-induction process. Upon her admission, Atkinson asked a member of the nursing staff about a cesarean delivery, remarking that she "just want[ed] to get it over with because [she] was really nervous" about the pain associated with a vaginal delivery. Tr. at 349. After a consultation with Dr. Ebke, during which he described his plan to conduct a trial induction of labor and to perform a cesarean only if the trial labor failed, Atkinson agreed to the induction, which Dr. Ebke commenced at 8:10 a.m. on May 12. At 2:00 p.m., Dr. Ebke checked Atkinson's progress; noted that it was normal; and ordered the administration of Pitocin, a drug used to induce labor or enhance a labor pattern. Atkinson testified that after the Pitocin was administered, she again requested a cesarean delivery because of painful contractions. At 4:50 p.m., Dr. Ebke heard a report from hospital staff regarding Atkinson's progress and ordered that the Pitocin be discontinued overnight so Atkinson could rest before the induction of labor was resumed the following day.

The next morning at 7:40, Dr. Ebke conducted another vaginal exam of Atkinson, noting that dilation had progressed to three centimeters and that effacement was at ninety percent. Because Atkinson's labor was progressing normally, Dr. Ebke proceeded to rupture Atkinson's uterine membranes (i.e., he broke her water), and he attached an electrode to Angel's scalp in order to monitor her heart rate throughout the remainder of the labor and delivery process. Dr. Ebke re-initiated the Pitocin at 7:50 a.m. on May 13, and he increased the Pitocin dosage at 9:00 a.m. Atkinson testified that after her water was broken, her contractions worsened and she again requested that a cesarean delivery be performed. Atkinson also testified that she requested an epidural, which was provided.

At 10:30 a.m., Dr. Ebke was updated on Atkinson's progress, including that the fetal heart rate (FHR) was elevated.3 Dr. Ebke was not alarmed by the FHR, however, because other factors, including acceptable short-term variability, indicated to him that the baby was not experiencing hypoxia. In addition, Dr. Ebke was aware that Atkinson continued to be fairly agitated and upset, which may have caused an increase in the FHR. At 10:40 a.m., the Pitocin was temporarily discontinued to allow Atkinson a brief respite from her contractions. A vaginal examination conducted by Dr. Ebke at 10:50 a.m. showed progress in dilation; thereafter, pain medication was administered and the Pitocin was restarted. At 11:40 a.m., Atkinson was upset and crying, and she stated to one of the nurses, "I can't do this anymore." Tr. at 756. This comment was noted in Atkinson's chart, but there was no indication in the chart that Atkinson had demanded a cesarean delivery in conjunction with the complaint. At 11:50 a.m., the FHR was still periodically reaching the 160s. At noon, the Pitocin was halted.

At 12:15 p.m., a member of the nursing staff reported to Dr. Ebke that Atkinson was exhibiting a "dysfunctional labor pattern" because the Pitocin had been stopped and restarted a number of times. At 12:55 p.m., Dr. Ebke reviewed the FHR himself and assessed the overall clinical situation, concluding that Atkinson was experiencing a great deal of anxiety but that the FHR was reassuring and short-term variability was acceptable. From 12:00 p.m. until 2:00 p.m., the nursing staff noted seven out of eight fifteen-minute periods with good variability, but they also noted questionable late decelerations in the FHR at 11:45 a.m. and at 2:00 p.m. Because a brief, late deceleration may be caused by, among other factors, epidural placement, maternal movement or repositioning, or fluid shifts, neither Dr. Ebke nor the nursing staff was concerned by these episodes. See Tr. at 772. Atkinson's vaginal examinations during this period showed that dilation had progressed from five to six centimeters and that effacement had reached one hundred percent. At 2:00 p.m., Dr. Ebke was notified that Atkinson was resting more comfortably and that her contractions were approximately five minutes apart. Dr. Ebke ordered that the Pitocin be resumed at a low level.

From 2:30 p.m. until delivery, Atkinson's labor-progress chart showed positive short-term variability and average to increased long-term variability. The FHR increased from 160 to between 165 and 170 during one fifteen-minute period, but the elevation resolved. Because variability remained positive, the nursing staff did not believe that the brief episode of FHR elevation warranted a call to Dr. Ebke. From 2:30 p.m. onward, Atkinson had "very good progression" of labor. Tr. at 854.

Once the pushing phase of her labor began, Atkinson protested, "[G]et it out ... I [can't] handle it anymore." Tr. at 351; see also Tr. at 842, 856. The nursing staff, however, did not believe that Atkinson's complaint amounted to a request for a cesarean delivery. Rather, the staff believed that Atkinson was expressing the fear, anxiety, and pain frequently expressed during a typical vaginal delivery.

At about 3:30 p.m., Dr. Ebke arrived in the delivery room after having been informed that Atkinson was completely dilated. Based on his opinion that Atkinson's labor pattern was acceptable and on his earlier physical examinations, Dr. Ebke was not concerned about a condition called cephalopelvic disproportion (CPD), where a baby's head is too large to descend safely through the mother's pelvis. By 4:50 p.m., Atkinson had stopped pushing effectively so Dr. Ebke determined that a vacuum extractor should be utilized to aid in completing the delivery. After Angel's head began crowning, Dr. Ebke positioned the vacuum extractor on Angel's head. Dr. Ebke then waited for a contraction and, with a single pull, delivered Angel's head. Tr. at 1028-29. Meconium4 was observed on Angel's nose and mouth, which Dr. Ebke removed by suction before continuing with the delivery.

At this point, Dr. Ebke experienced some difficulty in delivering Angel's body, and he instructed the nurses to re-position Atkinson, thus allowing additional space in the birth canal to deliver Angel's shoulders. Dr. Ebke delivered Angel at 4:54 p.m. on May 13, 1998, and she weighed six pounds, six ounces. Immediately after her birth, Angel had trouble breathing. Because Dr. Ebke had already removed visible meconium from Angel's mouth and nose, he used an instrument to examine Angel's airway below her vocal chords and remove any additional meconium she may have aspirated. The first insertion of the instrument yielded some meconium, but the second insertion was clean. As a precaution, Dr. Ebke applied a device to push additional oxygen into Angel's lungs, but Angel was stable and was breathing on her own. Angel's one-minute Apgar5 score was three, while her five-minute Apgar score was seven. Angel was provided enriched oxygen and was transported to the nursery. Because meconium was present below Angel's vocal chords and because she continued to experience periods of rapid breathing, Dr. Ebke directed that Angel be transferred to St. Elizabeth's Hospital, which was equipped to provide more specialized care.

In the meantime, the nursing staff had prepared Atkinson's placenta for delivery to the laboratory. The staff noted that the placenta appeared abnormal, with an umbilical cord that was small in diameter. The medical records also noted that Angel experienced "trau...

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