Forrestal v. Magendantz

Decision Date08 April 1988
Docket NumberNo. 87-1637,87-1637
Parties25 Fed. R. Evid. Serv. 1349 Jesse FORRESTAL, etc., et al., Plaintiffs, Appellees, v. Henry G. MAGENDANTZ, Defendant, Appellant. . Heard
CourtU.S. Court of Appeals — First Circuit

Michael G. Sarli with whom Gidley, Lovegreen & Sarli, Providence, R.I., was on brief for defendant, appellant.

Howard S. Ross with whom Shuman & Ross, Providence, R.I., was on brief, for plaintiffs, appellees.

Before BOWNES, BREYER and TORRUELLA, Circuit Judges.

BOWNES, Circuit Judge.

This is an appeal by defendant-appellant Dr. Henry G. Magendantz from a jury verdict finding him liable for medical malpractice. Plaintiff-appellee Jesse Forrestal brought suit against defendant for brain damage and an injury to his left clavicle allegedly sustained during his birth. 1 Defendant raises four issues:

(1) whether it was error to admit the testimony of plaintiff's expert witness;

(2) whether plaintiff failed to prove that defendant's conduct was the proximate cause of plaintiff's brain damage;

(3) whether plaintiff's closing argument constituted reversible error; and

(4) whether the district court in its charge misstated the applicable negligence doctrine.

We affirm.


In order to understand the issues, we first set out the Rhode Island law on the standard of care in medical malpractice cases and then recite the basic facts. The law is found in Schenck v. Roger Williams General Hospital, 119 R.I. 510, 935, 382 A.2d 514, 517 (1978):

In medical malpractice cases, this court has repeatedly held that a physician's duty is not to cure, but to exercise the same degree of diligence and skill as physicians in good standing engaged in the same type of practice in similar localities ordinarily have and exercise in like cases. Marshall v. Tomaselli, R.I., 372 A.2d 1280 (1977); Wilkinson v. Vesey, [110 R.I. 606, 295 A.2d 676] supra; Bigney v. Fisher, 26 R.I. 402, 59 A. 72 (1904). This standard of care governs a physician's conduct at all times while a patient is under his care and includes the diagnosis as well as the treatment of the patient's ailment. With regard to the diagnosis of patient maladies, we expounded upon the standard of care required of a physician by stating in Wilkinson that he must "avail himself of all the scientific means and facilities available to him so that he can obtain the best factual data upon which he can make a diagnosis * * *." Wilkinson v. Vesey, supra, 110 R.I. at 615-16, 295 A.2d at 683.

Since the jury found defendant liable, our exposition of the facts is made in the light most favorable to plaintiff, drawing all reasonable inferences in his favor and without evaluating the credibility of witnesses or the weight of the evidence. CVD, Inc. v. Raytheon Co., 769 F.2d 842, 848-49 (1st Cir.1985), cert. denied, 475 U.S. 1016, 106 S.Ct. 1198, 89 L.Ed.2d 312 (1986); Computer Systems Engineering, Inc. v. Qantel Corp., 740 F.2d 59, 65 (1st Cir.1984).

Defendant was the obstetrician who treated Jesse's mother during her pregnancy and delivered Jesse on May 4, 1980. Twenty-six days after Jesse's birth, Dr. Richard Rosen, Jesse's pediatrician, found a fracture of Jesse's left clavicle. Dr. Rosen attributed the fracture to trauma suffered by Jesse at the time of his birth.

When Jesse was about eighteen months old, he began to exhibit seizure phenomena; his head turned to the right or left and his right or left upper extremity exhibited tremors and quivering. The seizures lasted five seconds. The frequence of the seizures increased over time. Dr. Rosen referred Jesse to Dr. Taranath Shetty, a specialist in pediatric neurology and electroencephalograms. Dr. Shetty examined Jesse and concluded that brain damage was the cause of the seizures.

The hospital at which Jesse was born was rated as Class 3, meaning that it was a state of the art facility with the most modern obstetrical equipment available. It was used for high risk obstetrical patients.

Although the hospital provided the equipment necessary for determining, prior to delivery, the relation of the width of the mother's pelvic opening to the size of the baby's head, and although defendant knew how to use the equipment, he did not do so. Defendant did not use the available ultrasound equipment to measure the biparietal diameter of Jesse's head in utero; he did not use the available X-ray pelvimetry to determine whether Jesse's head would fit through his mother's pelvic opening; nor did he use any instruments to measure the width of the pelvic opening of Jesse's mother, relying instead on measurements made by using his hand and fingers. Defendant acknowledged that it is important to make a determination prior to delivery of whether the baby will fit through the mother's pelvic opening.

During labor, defendant did not use electronic fetal monitoring, which was available. In delivering Jesse, defendant used a forceps on the baby's head. He used the forceps first to turn Jesse's head, removed them, and then used them again to pull Jesse through the birth canal. Defendant performed an episiotomy on Jesse's mother to help the head out of the birth canal; that is, he cut a slit in the mother's vulvar orifice. Defendant decided to use forceps after Jesse's mother had two contractions. It was defendant's opinion that Jesse could have been delivered without the use of forceps if his mother had labored for another hour or two.


The testimony of Dr. John F. Hillabrand, plaintiff's expert, was presented by a videotape deposition. The exclusion or admission of testimony is governed by the Federal Rules of Evidence in diversity cases, as well as in all others. Ricciardi v. Children's Hospital Medical Center, 811 F.2d 18, 21 (1st Cir.1987). We, therefore, turn to Federal Rule of Evidence 702 which provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill experience, training, or education, may testify thereto in the form of an opinion or otherwise.

The admission of expert testimony under Federal Rule of Evidence 702 is within the discretion of the district court and will be reversed only for an abuse of discretion. Escolastica DaSilva v. American Brands Inc., 845 F.2d 356, 361 (1st Cir.1988); Marshall v. Perez Arguaga, 828 F.2d 845, 851 (1st Cir.1987),cert. denied, --- U.S. ----, 108 S.Ct. 1027, 98 L.Ed.2d 991 (1988); Allied International, Inc. v. International Longshoremen's Association, 814 F.2d 32, 40 (1st Cir.), cert. denied, --- U.S. ----, 108 S.Ct. 79, 98 L.Ed.2d 41 (1987). There can be no question of Dr. Hillabrand's qualifications. He is a board certified obstetrician and delivered babies from 1938 to January 1, 1986, when he retired. The only abuse of discretion here would have been the blanket exclusion of Dr. Hillabrand's testimony.

Nor was there any reason for excluding the testimony on the basis of Rule 703, which states:

The fact or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the fact or data need not be admissible in evidence. [Emphasis added.]

Dr. Hillabrand based his opinions on his review of all the hospital and medical records pertaining to the mother and the baby, the reports of all the doctors who had been consulted by the attending physicians, and the depositions of the doctors that had been taken prior to his own deposition. This is one of the standard methods of laying the foundation for an expert's opinion in medical malpractice cases. The other methods are the use of a lengthy hypothetical question or having the expert attend the trial and hear the testimony establishing the facts. The method used here is best suited to deposition testimony that is to be used at the trial.

Defendant advances two arguments for the exclusion of Dr. Hillabrand's testimony: that it relied on the opinion of another; and that his opinion that hypoxia causing brain damage was precipitated during the birthing process was "based upon a pyramiding of erroneous inferences." We discuss Dr. Hillabrand's testimony in detail in the next section of the opinion. It suffices to say now that the defendant's first argument is factually inaccurate, and the second is directed to credibility, not admissibility.


Defendant argues that he was entitled to either a directed verdict or a new trial because "plaintiff failed to prove to a reasonable degree of medical probability that his seizure disorder was proximately caused by an hypoxic event occurring at birth."

Hypoxia is defined as "low oxygen content or tension; deficiency of oxygen in the inspired air." Dorland's Medical Dictionary 755 (25th ed. 1974). Defendant does not deny that hypoxia in the brain can cause damage resulting in the symptoms exhibited by Jesse. His argument is that plaintiff did not prove that hypoxia caused Jesse's seizures, and that defendant's negligence was the cause of the hypoxia.

We agree with defendant that the Rhode Island law on proximate cause in the context of a medical malpractice case is controlling. The latest case on the subject is Gray v. Stillman White Co., Inc., 522 A.2d 737 (R.I.1987), in which the Rhode Island Supreme Court held:

It is well settled in this state that when expert medical testimony is offered to establish a causal relationship between a defendant's act or omission and the plaintiff's injury, "such testimony must speak in terms of 'probabilities' rather than 'possibilities.' " Doctor Fischbein's report states that "[i]n the absence of any other identified cause for Justin's high blood lead levels during 1976-1977,...

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