Fabianke v. Weaver By and Through Weaver

• Citation: 527 So.2d 1253
• Parties: Raynard FABIANKE v. Casey WEAVER, a minor, who sues By and Through his father and next friend, Timothy WEAVER, et al. 85-1341.
• Decision Date: 15 April 1988
• Court: Supreme Court of Alabama

Page 1253

527 So.2d 1253

2 A.L.R.5th 1140

Raynard FABIANKE v. Casey WEAVER, a minor, who sues By and Through his father and next friend, Timothy WEAVER, et al.

85-1341.

Supreme Court of Alabama.

April 15, 1988.

Rehearing Denied June 24, 1988.

William M. Bouldin of Guin, Bouldin & Alexander, Russellville, for appellant.

Henry H. Self, Jr., of Self & Bernauer, Florence, for appellees.

ALMON, Justice.

This is an appeal from a judgment for the plaintiffs in a medical malpractice action arising from the failure of the appellant to accurately calculate the delivery date and from what the jury found to be a negligent induction of labor that resulted in the premature birth of the minor plaintiff and complications associated therewith. The jury rendered a verdict for the plaintiff father in the amount of $11,002.00 for medical expenses incurred, for the minor plaintiff for pain and suffering in the amount of $50,000.00, and for the plaintiff mother on her claim based on the premature inducement of labor but awarding her damages in the amount of $0.00 (zero).

Sherry Weaver first went to the office of Dr. Raynard Fabianke in Red Bay, Alabama, on March 17, 1983, to obtain his professional services because she suspected that she was pregnant. Mrs. Weaver had been taking Norlestrin, a type of birth control pill. She had taken the last pill on January 27, 1983. Dr. Fabianke told her that he thought she had become pregnant while taking birth control pills. He estimated that she had conceived in December and, accordingly, calculated a delivery date of late September. Mrs. Weaver testified that she did not seek a second opinion, even though she doubted the accuracy of Dr. Fabianke's calculation. Mrs. Weaver's pregnancy apparently progressed normally.

When the baby was past due according to Dr. Fabianke's projected delivery date, induction of labor was scheduled for October 11, 1983. Efforts to induce labor on the 11th failed. On October 12, labor was successfully induced, and plaintiff Casey Weaver was born at 4:30 p.m. He weighed 5 lbs. 9 ozs. and, according to testimony, was premature.

Dr. Fabianke came into Mrs. Weaver's room shortly after delivery and told her that he had miscalculated and that the baby was premature. He said that he was taking the precaution of sending the baby to the intensive care nursery at North Mississippi Medical Center in Tupelo, Mississippi. After arriving in Tupelo, Casey was placed in the care of Dr. William Hilbun, a board certified pediatrician. Dr. Hilbun practices in Tupelo, Mississippi. According to Dr. Hilbun's diagnosis, Casey was premature and was suffering from respiratory distress syndrome. He was admitted to the intensive care nursery and ultimately placed on a respirator on October 13. Casey developed a pneumothorax on October 14 and was treated with a chest tube. He was also treated with antibiotics and a bili light was used to treat jaundice. Casey was discharged on October 29, and X-rays made at that time indicated that his chest was normal.

Dr. Hilbun examined Casey for the last time on October 12, 1984. At that time he determined that in length and weight the child was considerably above normal. He also stated that he did not believe that Casey had any abnormality or defect that was a result of his premature birth. He recommended that Casey be seen regularly, in case his eyes had been damaged by oxygen used in the respirator.

Mrs. Weaver testified that Casey walked at 13 months of age and talked at two years. She further testified that, except for corrective shoes and the need to watch his eyes, Casey was a perfectly normal 2 1/2 year old.

Dr. Marvin Allen Crane testified as an expert for the plaintiff. Dr. Crane was identified as a medical doctor, board certified as an obstetrician-gynecologist (Ob-Gyn) practicing in Philadelphia, Pennsylvania. Dr. Crane testified that he was not familiar with the medical facilities in Red Bay. He also stated that he did not know the standards required of medical doctors certified in family practice. Dr. Crane stated that he was familiar with the standard of care in the "national medical community."

When questioned concerning the diagnosis made by Dr. Fabianke, Dr. Crane testified that the chance of conception while on Norlestrin pills is non-existent. He also testified that it was below the standard of care to diagnose Mrs. Weaver's pregnancy as beginning in December. Dr. Crane advocated the use of ultrasound or sonogram to determine the age of the fetus. He was not aware that these facilities were not available in Red Bay.

Dr. Crane stated that if the lungs are not mature, a premature baby may suffer from respiratory distress syndrome. He was also allowed to testify, over the defendant's objection, that speech problems diagnosed by neuropsychologist Dr. Judith Kaas could have been caused by oxygen deprivation at birth and immediately thereafter.

Dr. Kaas, whose deposition was offered by the plaintiffs, has a Ph.D. in psychology and a post-doctoral fellowship in neuropsychology. She practices in Nashville under the name "Comprehensive Clinical Services, Inc." Her practice is limited to testing. Dr. Kaas saw plaintiff Casey Weaver, then 20 months old, on June 26, 1985, for the purpose of a developmental examination. This examination consisted of observations and formal testing of the child and interviews with the parents. According to Dr. Kaas, Casey did "very well," performing at the 22.4 month level. Dr. Kaas stated that Casey Weaver "is clearly not intellectually deficient".

Over the defendant's objection, Dr. Kaas was allowed to testify that "the absence of mental retardation does not rule out the possibility of a specific learning disability," and that "this child is at an extremely high risk for any disability." She could not say with any degree of certainty that there is going to be any specific learning disability in the future.

The defendant offered the testimony of Dr. Richard Vincent Colan, a pediatric neurologist practicing in Montgomery. Dr. Colan examined Casey Weaver on April 29, 1986, in an attempt to evaluate the two-year, six-month-old plaintiff's brain function. After testifying as to the various aspects of his examination, Dr. Colan concluded that Casey was above average for his age. Dr. Colan found no evidence of speech, coordination, or behavioral abnormalities.

When questioned concerning Dr. Kaas's conclusions, Dr. Colan stated that the results of her testing should be turned over to a physician for evaluation. Dr. Colan also stated that prematurity resulting from the induction of labor rather than from spontaneous delivery is less likely to give the child problems. When asked about the effects of a decrease in oxygen to the brain, Dr. Colan testified that a baby can tolerate a 90% decrease in oxygen for several hours before permanent injury is inflicted. Likewise, he said, a 50-60% decrease can be tolerated "perhaps indefinitely." He also stated that there is, however, the possibility of blindness developing in children who receive oxygen after birth.

Dr. Joseph W. Flippen, a board certified Ob/Gyn specialist practicing in Sheffield testified that ultrasound facilities were available in Tuscumbia, and that a radiologist is needed to interpret the results. He also testified to the degree of danger involved in the use of amniocentesis.

Dr. Flippen testified that the date of delivery is determined by adding 9 months and 7 days to the last menstrual period, and that he does not normally make any other effort to determine the correct date. He also testified that birth control pills are about 99% effective in preventing pregnancy.

At the conclusion of the trial of the case, the court granted the plaintiffs' motion for a directed verdict on the defendant's second defense of contributory negligence. The court denied the defendant's motion for a directed verdict as to all the claims. After the jury verdict, the defendant filed and amended a motion for judgment notwithstanding the verdict or, in the alternative, for a new trial, and plaintiff Sherry Weaver filed a motion for a new trial. Both motions were denied after a hearing held on July 18, 1986.

The appellant argues: 1) The trial court erred in permitting Dr. Kaas to testify as to the medical causation of a possible speech problem; 2) The judgment for the plaintiffs was against the great weight of the evidence; 3) The trial court erred in allowing testimony by the Ob/Gyn specialist from Philadelphia, Pennsylvania, concerning the appropriate standard of care to be applied in pregnancy and delivery practice in Red Bay, Alabama; 4) The trial court erred in refusing to allow the defendant's plea of contributory negligence to go to the jury; and 5) The trial court erred in refusing to grant a new trial after discovery of the failure of a member of the jury to properly respond to a question on voir dire.

Appellant first argues that it was error for the trial court to permit testimony by Dr. Kaas concerning her opinion as to the possible connection between respiratory distress occurring at birth and the condition of the minor plaintiff as revealed by her evaluation. He cites as authority for his position this Court's decision in Kriewitz v. Savoy Heating & Air Conditioning Co., 396 So.2d 49 (Ala.1981), which upheld the lower court's refusal to allow psychologists to testify as to medical causation of the plaintiff's condition. The Court, in affirming, relied on Ala.Code 1975, § 34-26-1, which essentially prohibits practice by psychologists outside their field of expertise.

The question of whether a witness is qualified to render expert testimony is a question traditionally left to the sound discretion of the trial court, and the decision of the trial court will not be disturbed on appeal unless this Court finds that the trial court abused its discretion. Bell v. Hart, 516 So.2d 562 (Ala.1987); Meadows v. Coca-Cola Bottling Co., 392 So.2d 825 (Ala.1981)...