Ewing v. Sellinger, 4D99-0037.

• Decision Date: 10 May 2000
• Docket Number: No. 4D99-0037.,4D99-0037.
• Parties: Cindy EWING and Larry Ewing, her husband, individually, and as parents and natural guardians of Derek Dwayne Ewing, a minor child, Appellants, v. Louis SELLINGER, M.D., Louis H. Anderson, M.D. and Louis H. Anderson, M.D., P.A., Appellees.
• Court: Florida District Court of Appeals

758 So.2d 1196

Cindy EWING and Larry Ewing, her husband, individually, and as parents and natural guardians of Derek Dwayne Ewing, a minor child, Appellants, v. Louis SELLINGER, M.D., Louis H. Anderson, M.D. and Louis H. Anderson, M.D., P.A., Appellees.

No. 4D99-0037.

District Court of Appeal of Florida, Fourth District.

May 10, 2000.

Rehearing Denied June 23, 2000.

Edna L. Caruso of Caruso, Burlington, Bohn & Compiani, P.A., and Rebecca Larson of Montgomery & Larmoyeux, West Palm Beach, for appellants.

Philip D. Parrish of Stephens, Lynn, Klein & McNicholas, P.A., Miami, for appellees.

WARNER, C.J.

In their appeal from an order granting a post-trial directed verdict in favor of the doctor in a medical malpractice case involving the labor and birth of appellants' child, the appellants contend that they provided a prima facie case of negligence through their expert witness who testified that had appellee, Dr. Sellinger, performed a risk evaluation on the appellant prior to her labor, he would have directed that a physician be present at birth and the course of her labor would have been better handled. Because the doctor who was on call at the time of her delivery testified that even if a risk evaluation had been performed, he would not have handled the delivery any differently than what occurred, we conclude that the causal chain from appellee's negligence to appellant's injuries has not been proven, and we affirm.

This case involves a medical malpractice claim against various doctors and health care providers for the negligent delivery of a 10½ pound infant, and for injuries sustained by the mother, Cindy Ewing, during birth. As she had done with her first pregnancy, Mrs. Ewing elected to receive her prenatal care from Care Delivery, Inc., a nurse/midwife clinic. Drs. Louis Sellinger and Louis Anderson, both obstetricians, contracted with the clinic to provide obstetrical services when necessary to the clinic's patients.

After Ewing had passed her due date, Dr. Sellinger saw Ewing on behalf of the clinic and directed that she be induced into labor at the hospital. He then returned her care and monitoring to Care Delivery. Ewing reported to the hospital the next day, where her labor was induced and monitored by the nurses employed by Care Delivery. It progressed slowly until about 5:40 p.m., when she began the second stage of labor. By 6 p.m. she was fully dilated and pushing. After nearly two hours at this stage, the nurse/midwife sought the help of the on call physician, Dr. Anderson. Dr. Anderson assisted in the final stage of delivery and repaired the necessary episiotomy. Unfortunately for Ewing, the episiotomy failed, causing her to suffer permanent fecal incontinence. The child was cyanotic when born from lack of oxygen and allegedly suffered permanent damage. As a result, this medical malpractice action was filed.

At trial, Ewing's expert testified that Dr. Sellinger was negligent at the time of his examination by failing to perform a risk assessment, as Ewing showed many risk factors for macrosomia (delivering a big baby). Macrosomia could entail additional dangers to both mother and child and frequently requires that the mother undergo a caesarean section to secure a healthy delivery. The plaintiff's theory was that had Dr. Sellinger performed that risk assessment, he...