Ensor v. Wilson By and Through Wilson

• Decision Date: 23 October 1987
• Citation: 519 So.2d 1244
• Parties: Herman ENSOR and Ensor, Baccus & Williamson, P.A. v. Misty WILSON, a minor, who sues by and through her next friend and natural father, Robert WILSON 85-1499.
• Court: Alabama Supreme Court

Page 1244

519 So.2d 1244

82 A.L.R.4th 925

Herman ENSOR and Ensor, Baccus & Williamson, P.A. v. Misty WILSON, a minor, who sues by and through her next friend and natural father, Robert WILSON

85-1499.

Supreme Court of Alabama.

Oct. 23, 1987.

Rehearing Denied Feb. 12, 1988.

Bibb Allen, Thomas W. Christian and Karen O. Bowdre of Rives & Peterson, Birmingham, for appellants.

Clifford Emond, Jr., and Michael A. Worel of Emond & Vines, Birmingham, for appellee.

Robert A. Huffaker of Rushton, Stakely, Johnston & Garrett, Montgomery, for amicus curiae The Medical Assoc. of the State of Alabama.

John S. Key and Scott Donaldson of Eyster, Key, Tubb, Weaver & Roth, Decatur, for amicus curiae Alabama Assoc. of OB-GYN.

BEATTY, Justice.

Appeal by Herman Ensor, M.D., and Ensor, Baccus & Williamson, P.A., from a judgment for plaintiff, Misty Wilson, a minor suing by her next friend, based upon a jury verdict that awarded plaintiff $2.5 million. The action was based upon allegations of malpractice.

Plaintiff is a child who was born prematurely, suffering a degree of brain damage and retardation. Prior to her pregnancy with Misty, Mrs. Wilson had experienced two miscarriages and one abortion. Mrs. Wilson's condition, described as bicornate uterus, increased the risk of miscarriage or pre-term delivery, and, in fact, she had been medically advised not to risk a premature baby or another miscarriage by another pregnancy. Nevertheless, she did become pregnant again, and, for the first 19 weeks of her pregnancy, was a patient of Dr. Ben Younger in Birmingham.

On October 24, 1979, Mrs. Wilson was seen for the first time by Dr. Howard Williamson, a partner in the professional association of Ensor, Baccus & Williamson. Dr. Ensor had examined her earlier to administer a pregnancy test.

Around 10:00 p.m. on December 29, 1979, thinking her "bag of waters had broken," Mrs. Wilson telephoned Dr. Williamson's answering service and was told that Dr. Ensor was on call. Within a few minutes, Dr. Ensor returned the call. Mrs. Wilson told Dr. Ensor that her "waters had broken," that her due date was the end of March, and that she had been taking medication, but had developed a rash, whereupon earlier in the week Dr. Williamson had advised her to stop that medication, substituting Vasodilan. According to Mrs. Wilson, she explained why she knew her waters had broken and, in response to Dr. Ensor's question, told him that she could be at the Cullman hospital in about 20 minutes. She testified that Dr. Ensor stated that he could meet her there in ten minutes.

Dr. Ensor denied that he told Mrs. Wilson that he would meet her at the hospital. In any case, a nurse at the Cullman hospital, Sandy Alldredge, was telephoned by Dr. Ensor and given orders to admit Mrs. Wilson to a room; to check her with nitrozine paper, but not to give her a pelvic examination; to do a complete blood count and urinalysis; to administer Dalmane by mouth; and to confine her to bedrest with bathroom privileges. As Dr. Ensor explained: he did not wish a pelvic examination, which might stimulate labor; a nitrozine test would determine membrane rupture; and if that had happened, he wanted Mrs. Wilson sent to the University of Alabama at Birmingham Hospital ("U.A.B.") immediately. Such a rupture at 29 weeks is a medical emergency, since labor may soon follow with delivery of a premature baby, Dr. Ensor explained, or there is a risk of infection to the baby. He stated that he had no intention of keeping Mrs. Wilson in Cullman because the Cullman Medical Center did not have facilities to care for such a premature child.

Mrs. Wilson proceeded to the Cullman hospital, where she was taken to a room at 10:50 p.m., undressed, and put to bed. By 11:00 or 11:05, the attending nurses ascertained that her waters had in fact ruptured. The attending nurse who made this determination did not telephone the results to Dr. Ensor. According to her, absent specific instructions from the doctor to call, the proper procedure was that the nurse was to use her judgment as to whether to call him, and thus the attending nurse proceeded to use a fetoscope to locate the baby's heartbeat. A fetal heart monitor was then attached to Mrs. Wilson. The graph ran for 26 minutes and was removed at 12:05 a.m. A factual dispute over its reading exists: the nurses testified that the monitor strip revealed late decelerations of the fetal heart rate and, thus, fetal distress; the testifying physicians all concluded that the strip did not conclusively disclose late decelerations. Dr. Ensor himself denied that it disclosed any late decelerations.

Having determined that the waters had ruptured and that Mrs. Wilson was experiencing irregular contractions, and, according to the nurses, having observed late decelerations of the fetal heart rate, one of the attending nurses telephoned Dr. Ensor to report Mrs. Wilson's condition. The medical records disclose that he was called at 11:35 p.m. The tape itself contained a written time notation indicating that Mrs. Wilson was taken off the tape at 12:05 p.m. Based upon the nurses' testimony and the length of the graph, 26 minutes, it is possible that the tape reading did not begin until 11:39 p.m. Nurse Alldredge testified that the attending nurses would have watched the strip for 19 or 20 minutes before they could have made a judgment on its disclosures.

According to Dr. Ensor, he was told by the nurse who telephoned him that the nitrazine test was positive and that Mrs. Wilson had begun to have some contractions, but he stated that he was not told that there had been decelerations and fetal distress. On the other hand, nurse Bonnye Cruce testified of telling Dr. Ensor by telephone of the late decelerations on the monitor strip. During this conversation, Dr. Ensor ordered Mrs. Wilson transferred to U.A.B., and she was placed in the ambulance for transfer at 12:05 a.m., or a short time thereafter.

Dr. Ensor gave no special instructions regarding Mrs. Wilson's trip in the ambulance because, as he testified, under what he knew about her and had been told, no special orders were needed. He stated that, as far as he knew, both Mrs. Wilson and the baby were in fine shape when they left the hospital. Dr. Ensor did not telephone U.A.B. to advise of her departure, stating that U.A.B. had a policy of accepting any patient transferred to it, and that there were always staff physicians and two or three residents available in the labor and delivery unit. His procedure in this instance, he related, accorded with the practice at Cullman and with transfer procedures he had discussed with the acting director of maternal medicine at U.A.B. On the other hand, there was evidence admitted on the "Standards for Obstetric and Gynecologic Services," which required that the transfer of patient care be preceded by a complete explanation of the need for the transfer, and that the transfer be acceptable to the other facility. Dr. David Abramson, plaintiff's expert witness, interpreted this to mean: "The doctor, the responsible doctor, has to call the other doctor on the other end and say, I am sending you such and such a patient, and that doctor has to agree to accept that patient and then and only then can you transfer the patient."

When Mrs. Wilson departed Cullman at, or near, 12:05 on the morning of December 30, 1979, the baby was healthy and had incurred no brain damage. Dr. Abramson, though not certain, testified that the fetal monitor strip might disclose late decelerations indicative of the baby's reaction to contractions of the uterus, resulting in loss of circulation in the baby and a drop in the baby's heart rate. This, to him, represented a potential problem. Other physicians differed. Nurse Alldredge accompanied Mrs. Wilson in the ambulance to U.A.B., and, according to her, Mrs. Wilson did not require either oxygen or intravenous fluids during the trip. When the ambulance was near Gardendale, about ten minutes from U.A.B., Mrs. Wilson's contractions became harder. Dr. Abramson's testimony indicated this event as the time when the baby, Misty, could have suffered brain damage from a lack of oxygen.

Nurse Alldredge testified that the ambulance driver radioed ahead to U.A.B., but stated that when they arrived shortly after 1:00 a.m., no one was expecting them, but that Dr. C.J. Searcy was there when she went in. Dr. Searcy met them in the hallway in front of the entrance to the labor and delivery room. Dr. John Huddleston, another physician on duty, also participated in the evaluation, which indicated that Mrs. Wilson would soon deliver a premature child. Mrs. Wilson was taken into the delivery room, where a fetal monitor was applied at approximately 1:10 a.m. This provided an unsatisfactory reading, so an internal fetal scalp electrode was applied. The record executed by Dr. Searcy showed fetal distress. Dr. Searcy testified that the strip tracing from this monitor disclosed some variable deceleration and was compatible with a very late stage of labor and imminent delivery, not unusual. On the other hand, Dr. Abramson testified that this strip was indicative of fetal distress, and Dr. L. Jeffers Fowlkes, defendant's expert witness, testified that the strip disclosed severe variable decelerations, very common at that time in labor. Dr. Fowlkes added that unalleviated severe variable decelerations can lead to hypoxia (low oxygen) or asphyxia (metabolic abnormality), and that unalleviated asphyxia can lead to brain damage.

Mrs. Wilson was taken to the delivery room at 1:20 a.m. The baby descended three stations in five minutes, and, according to Dr. Searcy, the infant was delivering so rapidly there was no time to perform an episiotomy. According to Dr. Searcy, this situation offered no indications for an episiotomy because the perineum offered no resistence to the fetal head, which was delivering quite rapidly. He added that, under other appropriate circumstances with time...