Hankla v. Jackson

• Decision Date: 14 July 2010
• Docket Number: No. A10A0077.,A10A0077.
• Citation: 305 Ga.App. 391,699 S.E.2d 610
• Parties: HANKLA et al.v.JACKSON et al.
• Court: Georgia Court of Appeals

305 Ga.App. 391

699 S.E.2d 610

HANKLA et al.v.JACKSON et al.

No. A10A0077.

Court of Appeals of Georgia.

July 14, 2010.

Coleman Talley, Gregory T. Talley, Edward F. Preston, Valdosta, for appellants.

Laura M. Shamp, Atlanta, for appellee.

DOYLE, Judge.

Zamarion Everett sustained a permanent brachial plexus injury ¹ during his birth in 2003. His mother, Anita Jackson, filed the instant medical malpractice action, individually and as next friend of Zamarion, against Certified Nurse Midwife Vickie Hankla, who attended the birth, and Hankla's employer, Southern OB-GYN Associates, P.C. (collectively “ Hankla”). Jackson argued that Hankla breached the standard of care during delivery when she applied lateral traction ² with enough force to cause Zamarion's injury during her attempts to deliver him during an obstetrical complication known as shoulder dystocia, which occurs when an infant's shoulders become lodged in the mother's pelvis after delivery of the head.

Hankla filed motions to exclude the testimonies of Jackson's expert witnesses, R.H. Allen, Ph.D., and Edith D. Gurewitsch, M.D. The trial court denied the motions to exclude, finding that the two witnesses were “qualified as experts in regards to matters involved in this civil matter.” Upon the trial court's grant of a certificate of immediate review, the defendants applied for interlocutory appeal of the trial court's denial of their motions to exclude; this Court granted the application. We affirm in part and reverse in part for the reasons that follow.

1. Hankla argues that the trial court abused its discretion by denying her motion to exclude the testimonies of Allen and Gurewitsch without first determining that their expert opinions were reliable and relevant pursuant to OCGA § 24-9-67.1(b) and Daubert v. Merrell Dow Pharmaceuticals.³

“We review a trial court's ruling on a motion in limine for abuse of discretion. A motion in limine is properly granted when there is no circumstance under which the evidence under scrutiny is likely to be admissible at trial.” ⁴

(a) Hankla first argues that the face of the trial court's order establishes that it applied the incorrect standard by determining only that Allen and Gurewitsch were “qualified” without also determining whether their testimonies were reliable and relevant. The trial court, however, cited Daubert in its order and determined that the testimonies were admissible under Daubert's guidelines as well as the guidelines of OCGA § 24-9-67.1. Thus, this argument is without merit.

(b) Next, relying heavily on this Court's opinion in Hawkins v. OB-GYN Assoc.,⁵ Hankla contends that the trial court erred because Allen's and Gurewitsch's testimonies (1) failed to rule in a suspected cause of the injury, (2) failed to rule out other potential causes of the injury, (3) were based on an assumption that Hankla applied excessive traction that was not supported by the record based on her deposition testimony, (4) were based on the mere existence of the injury, which is prohibited in medical malpractice actions, and (5) have not been subject to testing or peer review. We disagree that the trial court erred and affirm the order denying the motion in limine to exclude the two experts' evidence.

Applying the Daubert standard, expert testimony is admissible if it is both relevant and reliable. And the Georgia statute provides that expert testimony is admissible if: (1) the testimony is based upon sufficient facts or data which are or will be admitted into evidence at the hearing or trial; (2) the testimony is the product of reliable principles and methods; and (3) the witness has applied the principles and methods reliably to the facts of the case.⁶

(i) Gurewitsch is an assistant professor of obstetrics and gynecology and biomedical engineering at Johns Hopkins University, and she is board-certified in obstetrics and gynecology and maternal fetal medicine. Gurewitsch has performed numerous deliveries over her career as an obstetrician and has supervised midwives for the last eleven years, and she encounters shoulder dystocia in approximately three or four deliveries per year-approximately thirty to forty over her career. Gurewitsch deposed that approximately ten of those infants experienced a brachial plexus injury, one of whom sustained a permanent injury. She has been published extensively in peer-reviewed publications and has conducted clinical research on actual and simulated deliveries.

Gurewitsch deposed that based on her review of the medical records, including “[t]he neurological exam, EMG, and MRI” as well as Hankla's notes from delivery, “the nature and extent of injury, [her] research, training[,] and experience,” Hankla “unnecessarily” applied excessive traction to Zamarion in an attempt to deliver his shoulders, causing the permanent brachial plexus injury to his right side.

Specifically, she explained that

there is an injury to the posterior shoulder that is of a very severe nature and it involved the entire plexus, and an unusual sensory component to that injury which implies a locus of injury near the spinal cord. That locus of injury and the fact that all roots, all levels were involved, requires more than [forty] pounds of traction, which is at least four times what is normally used and at least twice as much as-would be the standard of care in a shoulder dystocia.

She also ruled out an inter-uterine injury, explaining that Zamarion showed no evidence of withering or lack of bulk in the affected arm which would be apparent if the injury had resulted during gestation from the fetus's movements or as a result of a uterine mass or other maternal characteristic. Gurewitsch addressed the issue of brachial plexus injuries caused by normal maternal expulsive forces during labor and opined that a permanent injury such as Zamarion's could not result from such forces and that no such case had been reported in medical literature. Gurewitsch cited numerous studies that she had performed and published on the topic as well as studies published by other authors in support of her opinions.

Contrary to Hankla's assertion, she does not conclude that simply because there was a brachial plexus injury Hankla's negligence caused it, rather that based on “[t]he nature and extent of the injury” in conjunction with a “shoulder dystocia delivery,” during which Hankla repeated the same obstetric maneuver followed by application of supra-pubic pressure in order to free Zamarion's shoulders, evinced that Hankla applied “excessive traction” at some point during the four minutes she spent trying to free the shoulders. Gurewitsch opined that in some cases applying lateral traction with sufficient force to cause a permanent brachial plexus injury in order to free an infant from the birth canal does not mean that the birth attendant has violated the standard of care; however, based on the circumstances of this case, Gurewitsch believed that Hankla had breached the standard.

(ii) Allen has a Ph.D. in civil engineering from Carnegie Mellon University and has been involved in the study of birth mechanics since 1986. He has held a number of teaching and research positions at various universities, and in 2000, he moved to Johns Hopkins University, where he has been teaching and researching in the field of bio-engineering, with specific research work in shoulder dystocia. Allen has created birthing models for study of the effects of labor and delivery, and he has authored or co-authored numerous journal articles appearing in various peer-reviewed publications; the majority of the articles address issues related to shoulder dystocia or brachial plexus injuries. His opinions are premised on his own peer-reviewed research as well as his assessment of other literature in the field.

During Allen's deposition, he offered his opinion on the mechanism of brachial plexus injuries generally, normal forces applied on an infant during delivery by the mother's body and by physicians, normal physician behavior in applying lateral force to an infant's head and neck during a shoulder dystocia delivery (i.e., documented behavior indicating that repeated attempts at delivering an infant led to increased force applied by a physician with each attempt), and the biophysical mechanics of the obstetric maneuver employed by Hankla and its use to free an infant during a shoulder dystocia delivery. Allen also deposed that based on Zamarion's medical records, Hankla's and Jackson's depositions, and other information regarding the birth, Hankla applied lateral traction to Zamarion at a force great enough to damage the brachial plexus nerve.

(iii) Based on this testimony, we cannot say that the trial court abused its discretion by denying Hankla's motion. Allen and Gurewitsch specifically ruled in Hankla's applied traction as the cause of Zamarion's injury, and they specifically ruled out all other potential causes of the injury. Allen and Gurewitsch based their opinions of causation on a number of factors related to the particular circumstances of Zamarion's delivery as well as their prior knowledge of permanent brachial plexus injuries and birth attendant behavior; their opinions were not merely based on the fact that the injury occurred.⁷ Hankla's contention that Allen's and Gurewitsch's research has not been submitted to peer review or has not been tested is wholly without support in the record.

With regard to Hawkins, we determine that the opinion does not require reversal in this case. In Hawkins, the expert testified only that the physician's application of traction was “more probably than not” the cause of the injury in that case.⁸ Here, Allen and Gurewitsch have presented extensive opinions regarding causation, in contrast to the opinion espoused by the expert in Hawkins.⁹ Moreover, because Allen's and Gurewitsch's testimonies regarding the causation of the injury are premised on more than the mere occurrence of the injury, we are not required to reverse...