Gilbert v. Miodovnik
| Decision Date | 18 March 2010 |
| Docket Number | No. 07-CV-315.,07-CV-315. |
| Parties | Ilyaas GILBERT, et al., Appellants, v. Menachem MIODOVNIK, et al., Appellees. |
| Court | D.C. Court of Appeals |
Wayne M. Willoughby, with whom Zev T. Gershon and Robin R. Smith, Owings Mills, MD, were on the brief, for appellants.
Donald L. DeVries, Jr., with whom Kelly Hughes Iverson and K. Nichole Nesbitt, Baltimore, MD, were on the brief, for appellees.
Susan M. Jenkins and Joanna M. King filed a brief amici curiae for the American College of Nurse-Midwives and the American Association of Birth Centers in support of appellees.
Before RUIZ, FISHER, and THOMPSON, Associate Judges.
Appellants Saara Abdul-Haqq and Michael Gilbert brought this medical malpractice action on behalf of themselves and their minor son, Ilyaas Gilbert, who suffered severe injuries at the time of his birth. They claim that Dr. Menachem Miodovnik, an employee of the Washington Hospital Center ("WHC"), was negligent because he did not intervene to alter the treatment plan the District of Columbia Birth Center ("DCBC"), an association of nurse-midwives, had developed for assisting the birth. Dr. Miodovnik, who never met or examined Mrs. Abdul-Haqq, discussed her care with a registered nurse-midwife from the DCBC on one occasion. The trial court held that Dr. Miodovnik did not owe a duty of care to the patient and granted summary judgment in favor of the appellees. We affirm.
In September 2004, acting upon the advice of women at her mosque, Saara Abdul-Haqq sought prenatal care from the District of Columbia Birth Center. Mrs. Abdul-Haqq was pregnant with her third child, she was in normal health at the time, and she understood that all of her prenatal care would be provided by the nurse-midwives at the DCBC.
Mrs. Abdul-Haqq had delivered her two older children via cesarean section, but she wanted to attempt a vaginal birth of her third child. The medical profession refers to this procedure as a vaginal birth after cesarean section ("VBAC"). In the course of the treatment she received from the DCBC, Mrs. Abdul-Haqq was advised of the increased risks that a VBAC posed to herself and her fetus. In October 2004 Mrs. Abdul-Haqq signed a consent form which, among other things, identified tearing of the uterus as a risk associated with a VBAC, and indicated that this risk increased if the patient had had more than one cesarean section.
The nurse-midwives of the DCBC provide health care services to women throughout the birth process, whether they deliver their babies at the Birth Center or in a hospital. When the DCBC manages a client's care, but birth center delivery is deemed inappropriate, the nurse-midwives make arrangements for hospital delivery. The DCBC nurse-midwives regularly assist women attempting a VBAC, and when they do so, the delivery occurs at the Washington Hospital Center.
Pursuant to a one-page Memorandum of Understanding ("MOU"), Dr. Menachem Miodovnik, the Chief of Obstetrics and Gynecology at Washington Hospital Center Corporation, served as the Director of Medical Affairs of the DCBC. This title is somewhat misleading, however. Under the DCBC Policies and Practice Guidelines, nurse-midwives do not report to the Director of Medical Affairs; they report to the Director of Clinical Services of the DCBC, and the Director of Clinical Services reports to the President and CEO of the DCBC.
As provided in a separate one-page MOU,1 Dr. Miodovnik also served as a consulting obstetrician for the DCBC. Dr. Miodovnik agreed to interact with the nurse-midwives in various ways that ranged from evaluating patient records to "accepting the transfer and medical management" of patients who developed complications. If a transfer to medical management becomes necessary, DCBC clients have the option of choosing their own physician or using the DCBC's consultant or his designee.
On March 21, 2005, Nurse-Midwife Alexander discussed Mrs. Abdul-Haqq's case with Dr. Miodovnik during a routine "chart review" of several patients. According to Dr. Miodovnik, during such routine reviews, he does not actually examine the medical charts of the patients. Instead, the nurse-midwives present the cases and he writes notes.
In this instance, Dr. Miodovnik did not examine Mrs. Abdul-Haqq's chart. Prior to the chart review, Nurse-Midwife Alexander reviewed Mrs. Abdul-Haqq's medical records and recorded pertinent information on a form which she brought to her meeting with Dr. Miodovnik. In addition to sharing the information on the form, Nurse-Midwife Alexander told Dr. Miodovnik that Mrs. Abdul-Haqq "desired a VBAC, that she wanted—very much wanted to have a vaginal birth." According to Nurse-Midwife Alexander, Dr. Miodovnik expressed concern about the increased risks associated with a VBAC after two prior cesarean sections and advised her to reiterate the risks of the procedure to Mrs. Abdul-Haqq. She testified: Nurse-Midwife Alexander resisted the suggestion that Dr. Miodovnik had
Dr. Miodovnik made an entry on the form (later inserted into Mrs. Abdul-Haqq's file) which stated
According to her deposition testimony, Nurse-Midwife Alexander intended to tell Mrs. Abdul-Haqq—"like Dr. Miodovnik told her to do"—that she had a higher risk of uterine rupture than other patients. So far as the evidence discloses, however, after the chart review none of the nurse-midwives reiterated to Mrs. Abdul-Haqq the risks of a VBAC after two prior cesarean sections.
After this "chart review" session, the nurse-midwives did not update Dr. Miodovnik about Mrs. Abdul-Haqq's care, and he did not inquire about her treatment. The doctor never met Mrs. Abdul-Haqq, nor did he ever examine her. Mrs. Abdul-Haqq did not know that a chart review had taken place, and she was not aware of Dr. Miodovnik's existence. Up until the time of her delivery, Mrs. Abdul-Haqq did not know that her treatment had been discussed with anyone other than the nurse-midwives at the DCBC.
On April 26, 2005, Mrs. Abdul-Haqq went to Washington Hospital Center because she thought she was in labor. At that time, she was still under the care of the DCBC nurse-midwives, and a VBAC at the hospital attended by a nurse-midwife was still planned. She was monitored and discharged. That night, Mrs. Abdul-Haqq returned to the hospital and was placed in the care of Nurse-Midwife Mairi Rothman.
Following standard procedure, Nurse-Midwife Rothman notified the backup physician, Virginia Leslie, that one of the DCBC's patients was in labor. Nurse-Midwife Rothman presented the patient's medical history to Dr. Leslie, who expressed concern about the plan for delivery. As a result of this conversation, Dr. Leslie advised Mrs. Abdul-Haqq of the risks associated with attempting a VBAC and recommended a third cesarean section. Mrs. Abdul-Haqq consented, and the hospital staff began preparing for surgery.
Before the operating room was ready, however, the fetal heart monitor indicated that the baby's heart rate was rising, and then the hospital staff began having trouble detecting the heartbeat. Surgery began, and "upon entry into the abdomen and visualization of the uterus, it was clear" that Mrs. Abdul-Haqq's uterus had ruptured. In the early morning of April 27, 2005, Ilyaas Gilbert was delivered through the rupture in Mrs. Abdul-Haqq's uterus. He sustained brain damage and other severe and permanent injuries.
On September 21, 2005, appellants filed a complaint accusing the DCBC, Dr. Miodovnik, and WHC of negligence.2 Dr. Miodovnik and Washington Hospital Center moved for summary judgment, arguing that the plaintiffs' claim of negligence failed because "Dr. Miodovnik owed no duty of care to Saara Abdul-Haqq." Plaintiffs responded, asserting that Dr. Miodovnik "collaborated on developing and approving a treatment plan" that involved an attempt at a VBAC, and that this was a violation of the standard of care.
The Superior Court issued an opinion and order on January 11, 2007, granting the motion of defendants Miodovnik and WHC for summary judgment. After noting that "a review of binding authority on this court has revealed woefully little applicable law to answer the question of when a duty exists between a consulting physician and a patient," the trial court examined the facts of the instant case in light of the decision in Newborn v. United States, 238 F.Supp.2d 145 (D.D.C.2002). The court noted, among other factors, that Dr. Miodovnik never met Mrs. Abdul-Haqq; she was unaware of Dr. Miodovnik's existence; "Dr. Miodovnik only considered and commented on plaintiff's medical care on one occasion"; the nurse-midwives were qualified to exercise independent judgment; and Dr. Miodovnik was not paid for the chart review. In light of these factors, the trial court concluded that Dr. Miodovnik's chart review with Nurse-Midwife Alexander "was insufficient to create a duty vis-a-vis plaintiff Abdul-Haqq."
The court noted that its legal conclusion was supported by public policy considerations. Imposing liability on a consulting physician under these circumstances would discourage consultation...
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