England v. Costa

• Decision Date: 10 November 2005
• Docket Number: No. 04-1192.,04-1192.
• Citation: 216 S.W.3d 585
• Parties: Daphne ENGLAND and Larry England, Appellant, v. Emil COSTA, M.D., Appellee.
• Court: Arkansas Supreme Court

216 S.W.3d 585

Daphne ENGLAND and Larry England, Appellant, v. Emil COSTA, M.D., Appellee.

No. 04-1192.

Supreme Court of Arkansas.

November 10, 2005.

William A. Newman, Dallas, and Lesher and Murray, by: Monty G. Murry, Texarkana, for appellants.

Atchley, Russell, Waldrip & Hlavinka, L.L.P., by: Jeffrey C. Lewis, Texarkana, for appellee.

TOM GLAZE, Justice.

In this medical-malpractice suit, our court is asked to determine when it is appropriate to give a modified form of AMI Civ. 4th 602, which deals with the right to assume others will use ordinary care and obey the law.

Appellant Daphne England became pregnant in 1997; her due date was December 24, 1997. That date came and went, and England had not gone into labor, so her obstetrician, appellee Dr. Emil Costa, asked her to come back to see him on December 31, 1997. England was still not showing signs of delivery by that date, so Dr. Costa scheduled a nonstress test¹ for January 2, 1998. However, England came to the hospital with contractions early in the morning on January 1, 1998, and she was hooked up to a fetal monitor for a number of hours. At 4:10 a.m., the monitor strip showed that the baby had a baseline heart rate of around 120, within normal ranges. At 4:16 a.m., however, the baby's heart rate dropped down, went back up, and then dropped back down again. This deceleration, or slowing of the heart rate, lasted about four minutes. The nurses attending England did not inform Dr. Costa of the deceleration.

Dr. Costa arrived at the hospital around 8:30 a.m. on January 1, 1998, at which time he reviewed the monitor tracing. His impression of the strip was that England was having mild irregular contractions. Despite the earlier deceleration, the activity reflected on the strip was reassuring and "within a normal range," and so Dr. Costa sent England home to wait one more day.

England returned to the hospital on January 2, 1998, at which time her cervix was only dilated to one centimeter. Dr. Costa performed another nonstress test, which showed lots of accelerations and good variability in the baby's heart rate. Because of this good result, Dr. Costa decided to wait another forty-eight hours to see if England would go into labor; if not, he would have her return to the hospital on January 4, 1998, to induce labor.

England returned to the hospital with irregular contractions around 10:30 a.m. on January 4. Her pregnancy was at forty-one weeks and four days, but she was still only dilated to one centimeter. She was again hooked up to a fetal monitor, which showed a lot of accelerations, good variability, and no significant decelerations. Dr. Costa came to the hospital around 12:30 or 12:40 p.m. and reviewed the monitor strips; he then applied Cytotec, a drug intended to induce labor. Afterwards, he watched England for a period of time, then left the hospital. England experienced a deceleration around 1:30 p.m., but the nurse on duty failed to tell this to Dr. Costa. Dr. Costa again returned to the hospital about 6:00 p.m. and reviewed the most recent hour and a half of the monitor strip, which looked normal. He also asked the nurse, Missy Barham, if anything had happened after he last left; despite knowing about the earlier deceleration, Barham said, "no."

As of 6:00 p.m. on January 4, 1998, England had dilated to about one-to-two centimeters; the fetal heart rate was 110 to 120; there were no decelerations at that time; England was having contractions every two to three minutes; and there was no distress. Based on this information Dr. Costa decided to let England's labor move forward, as opposed to performing a cesarian section. Dr. Costa went to bed around 9:30 or 10:00 p.m. that night. Before going to bed, he called the hospital and left orders that, if England did not go into labor by 3:00 or 3:30 a.m., he wanted to start her on Pitocin to induce labor.

At 2:21 a.m., England reported to the nurses that she felt the need to have a bowel movement. The nurse's notes from that time reflected that the fetal heart rate was 120, which indicated that the baby was still doing well. However, according to Dr. Costa's testimony, the urge England felt was more than likely the baby's head putting pressure on her pelvis. Dr. Costa averred that the nurses should have conducted a pelvic examination and called him to return to the hospital. No pelvic exam was performed until 2:40 a.m., at which time the nurses noticed that England's cervix had dilated to nine centimeters.

However, Dr. Costa did not hear from the hospital until 2:51 a.m., when Nurse Everett called to say the baby's heart rate was down and was not coming up. Dr. Costa immediately called for an emergency cesarian section and returned to the hospital, but when he arrived at the operating room, no surgical staff was present. Dr. Costa ended up performing an emergency cesarian section with only one nurse present to assist him. The baby, Morgan England, was delivered at 3:24 a.m., January 5, 1998, with cerebral palsy, which, according to England's expert witness, was most likely caused by a "significant hypoxic insult in the time immediately prior to the emergency cesarean section."²

England and her husband, Larry England, sued Dr. Costa and the hospital. The Englands eventually settled with the hospital for $2.5 million, and the case proceeded to trial against Dr. Costa alone; the Englands informed the jury of the settlement and admitted that the negligence of the hospital and the nurses was a proximate cause of their damages. Just prior to submitting the case to the jury, the parties and the court struggled to agree on whether or not to give a modified form of AMI Civ. 4th 602 to the jury.

As written, AMI Civ. 602 provides that "[e]very person using ordinary care has a right to assume, until the contrary is or reasonably should be apparent, that every other person will [use ordinary care] [and] [obey the law]. To act on that assumption is not negligence."

The Englands argued that the instruction had only been applied in automobile-accident cases in which contributory negligence was an issue. The trial court ultimately rejected the Englands' argument and gave a modified version³ of the instruction to the jury, as follows:

Every physician using ordinary care has the right to assume, until the contrary is or reasonably should be apparent, that every other medical care provider will use ordinary care. To act on that assumption is not negligence. As I have used the term ordinary care here, I mean that degree of care required of all physicians or medical care providers, as already explained in my definition of negligence.

After deliberating, the jury returned a verdict in Dr. Costa's favor on February 26, 2004.

The Englands filed a motion for new trial on March 26, 2004, in which they alleged that the trial court improperly instructed the jury. The effect of the erroneous instruction, they contended, was that the jury was urged toward the defense's theory of the case and rendered a verdict that was contrary to the preponderance of the evidence. After a hearing on April 13, 2004, the trial court denied the Englands' motion for new trial, noting that while the issue was one of first impression, and there were no reported Arkansas cases in which the instruction had been given in a medical-malpractice case, the court believed it was a proper instruction. The Englands filed a timely notice of appeal on April 14, 2004.

In their sole point on appeal, the Englands argue that, as a result of the erroneous charge to the jury, the verdict was contrary to the preponderance of the evidence. In their complaint, the Englands alleged that Dr. Costa was negligent in failing to properly evaluate the entirety of the fetal monitor strip on January 4, 1998 (as well as the days leading up to January 4), and in failing to respond to the abnormalities and decelerations on the strip by performing a caesarean section on January 4. The Englands further alleged that the nurses were negligent when they failed to properly evaluate the fetal monitor strip and failed to keep Dr. Costa informed of the information on the monitor strip. The effect of the modified AMI Civ. 602 instruction, the Englands contend, is that Dr. Costa was insulated from liability because the instruction informed the jurors that Dr. Costa could not be negligent for assuming that the nurses would not act negligently. By telling the jurors that Dr. Costa had a right to rely on the nurses to use ordinary care, the Englands assert, there was no way that Dr. Costa could have been found negligent.

The crux of the Englands' argument is that AMI 602 is only intended to be used in cases involving contributory negligence, and they assert that the cases addressing the instruction are all contributory negligence cases, usually involving automobile accidents. See, e.g., Rexer v. Carter, 208 Ark. 342, 186 S.W.2d 147 (1945); Kirby v. Swift & Co., 199 Ark. 442, 134 S.W.2d 865 (1939); Coca-Cola Bottling Co. v. Shipp, 174 Ark. 130, 297 S.W. 856 (1927) (opinion on rehearing). As such, they contend, given the fact that there was no allegation that Daphne England was herself negligent in any way, the instruction should not have been used at all, let alone in the modified form in which it was given in the instant case. We agree.

Rexer v. Carter, supra, involved an automobile accident in which the defendant, Rexer, ran a stop sign and collided with Carter. Carter sued, and Rexer defended by saying that Carter should have known that he could not observe the traffic that was approaching the intersection. The trial court submitted to the jury the questions of negligence and contributory negligence, and the jury found in Carter's favor. This court affirmed the use of the instruction, noting that the jury could have found from the testimony that Carter was not bound to anticipate Rexer's recklessness in running a stop sign. In so affirming, this court noted that the driver...