Estate of Stephenson v. Harrison, No. 68189

CitationNo. 68189
Case DateDecember 30, 2016
CourtCourt of Appeals of Nevada

THE ESTATE OF JOSEPHINE RUTH STEPHENSON, A DECEASED MINOR, BY AND THROUGH HER NATURAL MOTHER
AND GUARDIAN JERRI TALLEY AND HER NATURAL FATHER AND GUARDIAN, JEREMY GLENN STEPHENSON;
JERRI TALLEY, AND JEREMY GLENN STEPHENSON, INDIVIDUALLY, Appellants,
v.
NOEL SHORE HARRISON, M.D., INDIVIDUALLY; SUNRISE HOSPITAL AND MEDICAL CENTER, LLC,
A DELAWARE LIMITED LIABILITY COMPANY; AND WOMEN'S SPECIALTY CARE, LLP,
A NEVADA LIMITED LIABILITY LIMITED PARTNERSHIP, Respondents.

No. 68189

COURT OF APPEALS OF THE STATE OF NEVADA

December 30, 2016


ORDER OF REVERSAL AND REMAND

This is an appeal from a district court grant of summary judgment in favor of defendants in a medical malpractice action. Eighth Judicial District Court, Clark County; Douglas W. Herndon, Judge.

Following a lengthy labor and delivery process, Appellant Jerri Talley tragically gave birth to a deceased infant, Josephine Stephenson. Appellants later filed a medical malpractice action, the district court granted summary judgment in favor of respondents, and this appeal followed. The central issue on appeal is whether the district court

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erred by finding that the appellants failed to establish the necessary causation element of a prima facie medical malpractice suit.1

To maintain a medical malpractice action, a plaintiff must prove: 1) the medical provider's conduct departed from the accepted standard of medical care or practice; 2) the medical provider's conduct was both the actual and proximate cause of the plaintiff's injury; and 3) the plaintiff suffered damages. Mitchell v. Eighth Judicial Dist. Court of State ex rel. County of Clark, 131 Nev. ___, ___, 359 P.3d 1096, 1103 (2015), reh'g denied (July 23, 2015); see also Prabhu v. Levine, 112 Nev. 1538, 1543, 930 P.2d 103, 107 (1996). Additionally, the plaintiff must offer evidence of the duty, breach, and causation elements through expert medical testimony. NRS 41A.100.

This court reviews a district court's order granting summary judgment de novo. Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029 (2005). When deciding a summary judgment motion, all evidence must be viewed in a light most favorable to the nonmoving party. Id. Further, we note that "courts are generally reluctant to grant summary judgment" in negligence cases. Harrington v. Syufy Enters., 113 Nev. 246, 248, 931 P.2d 1378, 1380 (1997).

On appeal, the parties do not dispute whether Dr. Pine's expert testimony established evidence of duty or breach; instead, the parties dispute whether Dr. Pine offered evidence of causation—but causation of what?

Appellants (collectively, the Stephensons) argue they established a causal link between the respondent's (collectively, Sunrise)

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negligence—not placing an FSE as soon as possible—and the injury, which they assert is Josephine's intrapartum death, even if Josephine would have still died postpartum. In contrast, the respondents argue that Dr. Pine failed to establish a causal link between the breach and the injury, which they assert is Josephine's death.

Here, the district court did not err by determining the Stephensons failed to establish the respondents caused Josephine's death because Dr. Pine's expert affidavit does not establish a link between the alleged breach of duty—not placing an FSE as soon as possible—and Josephine's death from an infection. Further, at his deposition, any time Dr. Pine was asked to connect the failure to place the FSE as soon as possible to Josephine's death, he would qualify his statements by saying he was not an expert in infections or could not testify regarding whether Josephine would have ultimately overcome the infection because he was not a pediatrician. Thus, Dr. Pine's testimony, taken in the light most favorable to the Stephensons, does not establish that the alleged negligence caused Josephine's death.

Nonetheless, the district court erred in granting summary judgment to Sunrise because Josephine's death was not the only injury the Stephensons claimed in their complaint. In their pleading and oppositions to summary judgment, they emphasized they were seeking damages stemming from an intrapartum death, resulting in a stillbirth rather than a live birth. The Stephensons reiterated this argument at the summary judgment hearing, stating: "[w]e do know that this intrapartum death occurred which required Ms. Talley to basically wait in the hospital overnight and ultimately give, through natural means, childbirth to her stillborn child."

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The district court does not address this claim in its order, instead focusing on whether the Stephensons offered proof of causation of death from an infection and a loss of chance of surviving the infection. But taken in the light most favorable to the Stephensons, Dr. Pine's expert testimony fairly implies a causal link between the alleged breach and the injury of experiencing of a stillbirth instead of a live birth. Because a jury certainly could have awarded at least some damages for this discrete injury, the Stephensons established a prima facie medical malpractice case for this claim and the grant of summary judgment in favor of Sunrise on all claims was improper. See Prabhu v. Levine, 112 Nev. at 1543, 930 P.2d at 107 (establishing the elements for medical malpractice); NRS 41A.100 (requiring expert testimony to prove duty, breach, and causation in a medical malpractice action); and Harrington v. Syufy Enterprises, 113 Nev. 246, 248, 931 P.2d 1378, 1380 (1997) (noting that summary judgment is proper only if the plaintiff cannot recover as a matter of law).2

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Accordingly, we

ORDER the judgment of the district court REVERSED AND REMAND this matter to the district court for proceedings consistent with this order.

/s/_________, J.
Tao

GIBBONS, C.J., concurring:

I concur with the majority opinion, and I write separately only to provide clarification to the parties and the district court. As I find that the appellants each sought separate damages, based on separate claims, each claim should be addressed separately, to avoid any possible confusion.

The facts underlying this case are unsettling but they need to be detailed to fully appreciate the situation. On June 18, 2012, shortly before 4:30 in the afternoon, appellant Jerri Talley arrived at Sunrise

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Hospital via ambulance. Jerri, who was then 22 years old and morbidly obese, was vomiting and experiencing flu-like symptoms with lower abdominal pain. Jerri was also 40-41 weeks pregnant (9 months) and, the nursing staff noted, might be in labor. The nursing staff observed that Jerri had an elevated white blood cell count, had received no prenatal care, admitted to using marijuana to self-treat nausea during the pregnancy, and, due to her obesity and movement,3 it was extremely difficult to monitor the baby's heartbeat. These factors, and others, may have resulted in Jerri enduring a high risk pregnancy and delivery.

At 6:18 p.m., nursing staff conducted a physical examination which revealed Jerri's cervix was approximately one centimeter dilated. Immediately, nursing staff had difficulty monitoring the baby's heartbeat because of Jerri's girth, and her failure or inability to cooperate. Despite this difficulty, the nurses were able to confirm the baby's heart was beating at 140 beats per minute ("bpm"). Approximately an hour later, at 7:15 p.m., respondent Dr. Noel Harrison was first notified of Jerri's situation. As Jerri did not appear to be in active labor, and the cause of her distress was unclear, Dr. Harrison ordered her admitted for observation. At 7:50 p.m., Dr. Harrison ordered an ultrasound to rule out gallstones as a possible cause of Jerri's distress.

The ultrasound ordered by Dr. Harrison was not performed until approximately 10:50 p.m. Moreover, between 7:50 p.m. and 10:50 p.m., the nursing staff continued to rely on an external monitor, despite its ineffectiveness, to monitor the baby's heart rate. During this three hour

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period, nursing staff were only able to obtain the baby's heart rate twice. Each time, the fetal heart trace revealed a heart rate of 140 bpm, but each time the nurse noted that the findings were "sketchy." Other than these two brief traces, the baby was essentially left unmonitored.

At 10:50 p.m., the ultrasound confirmed that the baby's heart rate was 140 bpm. Dr. Harrison performed a cervical check and discovered that Jerri was four centimeters dilated. He ordered that Jerri be admitted to Labor and Delivery and have internal monitors placed as soon as possible, so the fetal heart rate could be accurately monitored. Nevertheless, nursing staff continued to rely upon the ineffective external monitor for the next hour. During this time staff could not obtain fetal heart tracings.

Jerri was not admitted to Labor and Delivery until shortly before midnight, one hour after Dr. Harrison ordered her admitted and internal monitors placed. At 12:10 a.m., a nurse ruptured Jerri's membrane and internal fetal scalp electrodes (the "FSE") were finally placed on the baby. The nurse observed only a faint heartbeat, but it was believed the heartbeat reading was likely interference from Jerri's own heartbeat, and the baby's heartbeat could not be reliably detected. The nurse also noted the presence of thick meconium which suggested fetal distress. At 12:20 a.m., the FSE was removed and replaced. At 12:25 a.m., the nurse notified Dr. Harrison that FSE monitoring failed to locate fetal heart tones. Dr. Harrison performed a second ultrasound at 12:36 a.m. and could not locate a fetal heart tone. At 12:52 a.m., an ultrasound technician performed a final ultrasound and confirmed the baby had died. As a heart rate was detected at 10:50 p.m., the baby likely died while Jerri

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was waiting to be admitted to Labor and Delivery. At 1:14 a.m., Jerri received an epidural, and Pitocin to induce labor.

Jerri delivered baby Josephine, a stillborn daughter, around 9:30 a.m. on June 19, 2012. An autopsy later suggested that...

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