Gingerich v. Kline

• Court: Missouri Court of Appeals
• Writing for the Court: Patricia Breckenridge
• Citation: Gingerich v. Kline, 75 S.W.3d 776 (Mo. App. 2002)
• Decision Date: 12 March 2002
• Docket Number: No. WD 59182.,WD 59182.
• Parties: Deniece GINGERICH and Andy Gingerich, Appellants, v. James E. KLINE, M.D. and St. Joseph OB-GYN, Inc., Respondents.

75 S.W.3d 776

Deniece GINGERICH and Andy Gingerich, Appellants, v. James E. KLINE, M.D. and St. Joseph OB-GYN, Inc., Respondents.

No. WD 59182.

Missouri Court of Appeals, Western District.

March 12, 2002.

Motion for Rehearing and/or Transfer to Supreme Court Denied April 30, 2002.

Application for Transfer Denied June 25, 2002.

James M. Yeretsky, Overland Park, KS, for appellants.

D. Bruce Keplinger, Overland Park, KS, for respondents.

Before HOWARD, P.J., BRECKENRIDGE and NEWTON, JJ.

PATRICIA BRECKENRIDGE, Judge.

Deniece and Andy Gingerich brought a wrongful death action against James E. Kline, M.D., and Dr. Kline's medical group, St. Joseph OB-GYN, Inc., following the death of the Gingerichs' newborn son, Adrian Gingerich, who had been delivered by Dr. Kline. A jury returned a verdict in favor of Dr. Kline, and the trial court entered a judgment on that verdict. On appeal, the Gingerichs contend that the trial court erred by prohibiting them from introducing statistical evidence of Dr. Kline's personal history of the rate of catastrophic uterine rupture in his patients who have undergone vaginal birth after cesarean section (VBAC) to rebut Dr. Kline's evidence that catastrophic uterine rupture during VBAC was statistically extremely rare. The Gingerichs also argue that, since they were prohibited from mentioning other lawsuits against Dr. Kline for catastrophic uterine rupture, the trial court erred in allowing Dr. Kline's counsel to argue in closing argument that the Gingerichs' case was "the one case that Dr. Kline gets hauled into court on." This court finds that Dr. Kline made the frequency of the occurrence of catastrophic uterine rupture a material issue in the case and, therefore, the trial court abused its discretion in prohibiting the Gingerichs from introducing evidence of the occurrence of a catastrophic uterine rupture in another one of Dr. Kline's patients. The judgment of the trial court is reversed, and the cause is remanded for a new trial.

Factual and Procedural Background

Adrian was Ms. Gingerich's third child. Ms. Gingerich's two older children, who were ages fifteen and eleven at the time of the trial, had been delivered by cesarean section by Dr. Kline's father. Dr. Kline's father retired from the practice of medicine before 1995, when Ms. Gingerich became pregnant with Adrian. Ms. Gingerich chose Dr. Kline to deliver Adrian, since she had been receiving routine OBGYN care from Dr. Kline since 1993.

Throughout her pregnancy with Adrian, Ms. Gingerich had regular appointments with Dr. Kline, at intervals of at least every four weeks. At the last of her regular appointments, on October 23, 1995, Dr. Kline scheduled Ms. Gingerich for an induction of labor on October 27th.

On October 27th, Ms. Gingerich and her husband went to Heartland Regional Medical Center for the labor induction. Dr. Kline began the induction that morning; however, Ms. Gingerich's water did not break until the following morning, on October 28th. After Ms. Gingerich's water broke, she was given the contraction-inducing drug Pitocin. By 1:00 P.M., Ms. Gingerich was experiencing excruciating pain, and was given Demerol. Despite taking the Demerol, Ms. Gingerich was still in pain, complaining that the baby was in her ribs. At 1:41 P.M., Ms. Gingerich was almost fully dilated, and the baby's heart rate of 155 to 165 beats per minute was within the normal range. Eleven minutes later, however, at 1:52 P.M., the baby's heart rate lowered into the nineties. The two labor nurses attending to Ms. Gingerich attempted to apply an internal scalp electrode to Adrian's head to more closely monitor the fetal heart rate. By 1:56 P.M., the internal scalp electrode was not working, and the nurses noticed bright red blood coming from Ms. Gingerich. The nurses put another internal scalp electrode on Adrian's head, and the electrode indicated that the fetal heart rate had fallen into the sixties. The nurses notified Dr. Kline, who arrived in the room at 2:01 P.M.

When Dr. Kline entered the room, he examined Ms. Gingerich, and ordered an immediate cesarean section. At Dr. Kline's direction, the nurses contacted the anesthesiologist on call, who arrived at 2:15 P.M. and began administering anesthesia to Ms. Gingerich. Adrian was delivered two minutes later.

After Adrian was delivered, it was discovered that, during delivery, he had suffered from hypoxia, or oxygen deprivation, and the hypoxia had caused profound health problems. Because he was unable to breathe on his own, Adrian was intubated. Adrian's prognosis was very poor. The pediatrician who examined Adrian determined that Adrian probably would be mentally retarded with an I.Q. too low to measure, suffer from severe cerebral palsy, have seizure disorders, be unable to feed himself, and would have a limited life expectancy. Mr. and Ms. Gingerich eventually consented to having Adrian extubated, and he died.

Ms. Gingerich was diagnosed as having had a catastrophic uterine rupture. A uterine rupture is "catastrophic" when damage results to the mother or the baby. The rupture occurred along the scar line of the incisions of her prior cesarean sections.

In 1998, the Gingerichs filed a wrongful death lawsuit against Dr. Kline and his medical group, St. Joseph OB-GYN, Inc., for Adrian's death.¹ In their amended petition, the Gingerichs asserted that Dr. Kline and his medical group were negligent:

a. In attempting to perform a VBAC upon Deniece Gingerich when Defendants knew or should have known that Deniece Gingerich's two previous deliveries were by cesarean section.

b. In failing to adequately monitor Deniece Gingerich's pregnancy through full term and delivery.

c. In failing to adhere to accepted medical standards.

d. In failing to perform an ultrasound or other tests upon Deniece Gingerich to determine approximate birth weight and size prior to attempting a VBAC.

e. In attempting a high risk delivery without a qualified physician or anesthesiologist present.

f. In attempting a high risk delivery without a qualified physician or anesthesiologist readily available.

g. In failing to inform Deniece Gingerich of the risks associated with a VBAC.

h. In failing to obtain Deniece Gingerich's informed consent to a VBAC.

i. In failing to interpret, monitor, assess and document Deniece Gingerich's fetus and contraction patterns.

j. In failing to recognize an abnormal or non-reassuring fetal heart rate pattern.

k. In failing to appropriately respond to an abnormal or non-reassuring fetal heart rate pattern.

l. In failing to monitor the administration of labor and contraction enhancing drugs in a high risk pregnancy.

m. In failing to timely respond after Deniece Gingerich's uterus ruptured.

n. In failing to implement and adhere to adequate protocols and guidelines for counseling, managing and treating patients who undergo a VBAC.

o. In failing to use the degree of skill and learning ordinarily used under the same or similar circumstances by other OB-GYNs.

Based on the asserted negligence of Dr. Kline and St. Joseph OB-GYN, Inc., the Gingerichs sought damages for "the reasonable value of the services, consortium, companionship, comfort, instruction, guidance, counsel, training and support which... Adrian Gingerich would have provided [the Gingerichs] throughout his lifetime and for the aggravating circumstances attending the delivery and death of their newborn son." The Gingerichs also sought punitive damages.

A jury trial was held in August 2000. The jury returned a verdict for Dr. Kline, and the court entered a judgment on this verdict. The trial court denied the Gingerichs' motion for new trial. The Gingerichs filed this appeal.

Standard of Review

The trial court has "considerable discretion" in determining whether to admit or exclude evidence. Deveney v. Smith, 812 S.W.2d 810, 812 (Mo.App.1991).

Appellate review of the exclusion of evidence is limited to a determination of whether the trial court abused that discretion, and not whether the evidence was, in fact, admissible. Still v. Ahnemann, 984 S.W.2d 568, 572 (Mo.App.1999). "We will find no abuse of discretion in excluding evidence unless the materiality and probative value of the evidence were sufficiently clear, and the risk of confusion and prejudice so minimal, that we could say that it was an abuse of discretion to exclude it." Id.

Abuse of Discretion to Exclude Evidence

In their first point, the Gingerichs argue that the trial court abused its discretion in excluding statistical evidence of Dr. Kline's personal history of the rate of catastrophic uterine rupture in his patients who have undergone a VBAC. In 1996, a year after Ms. Gingerich suffered the catastrophic uterine rupture during Adrian's delivery, another of Dr. Kline's patients suffered a catastrophic uterine rupture while attempting a VBAC. The baby in that case lived but suffered injuries. The parents of the baby sued Dr. Kline for malpractice.² The 1996 case was settled before the start of the Gingerichs' trial.

To prevent the admission of evidence regarding the 1996 case during the Gingerichs' trial, Dr. Kline filed a motion in limine asking the court to prohibit the Gingerichs from, inter alia, "offering into evidence, referring to, or otherwise alluding to the facts indicating that [Dr. Kline] has been involved in any litigation or had any malpractice claims against him outside of the instant case." Dr. Kline also asked that the court prohibit the Gingerichs from offering evidence "indicating or suggesting that Dr. Kline has had other patients who have had complications during delivery." The court granted Dr. Kline's motion in limine.

At trial, one of the witnesses the Gingerichs called was Pamela Sue Smith, a staff nurse in the obstetrical department at Heartland Regional Medical Center. As part of Ms. Smith's duties at Heartland, she compiled OB statistics for Dr. Kline's medical group, St. Joseph OB-GYN, Inc. Ms. Smith kept monthly...