Lawrey ex rel. Lawrey v. Good Samaritan Hosp.

• Decision Date: 04 June 2014
• Docket Number: No. 12–3863.,12–3863.
• Citation: 751 F.3d 947
• Parties: Dawn LAWREY, Mother and Next Friend of Aubree Lawrey, a Minor Plaintiff–Appellant v. GOOD SAMARITAN HOSPITAL, Defendant Kearney Clinic, P.C.; Dawn M. Murray, M.D., Defendants–Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

751 F.3d 947

Dawn LAWREY, Mother and Next Friend of Aubree Lawrey, a Minor Plaintiff–Appellant

v. GOOD SAMARITAN HOSPITAL, DefendantKearney Clinic, P.C.; Dawn M. Murray, M.D., Defendants–Appellees.

No. 12–3863.

United States Court of Appeals, Eighth Circuit.

Submitted: Dec. 18, 2013.

Filed: June 4, 2014.

Kenneth M. Levine, Sheila E. Mone, Kenneth Levine & Associates, Brookline, MA, Christopher Paul Welsh, James Robert Welsh, Welsh & Welsh, Omaha, NE, for Plaintiff–Appellant.

Joseph M. Aldridge, Nathan Derek Anderson, James A. Snowden, Wolfe & Snowden, Lincoln, NE, for Defendants–Appellees.

Before BYE, BRIGHT, and SMITH, Circuit Judges.

BYE, Circuit Judge.

After Dawn Lawrey's daughter was born with permanent nerve damage in her right shoulder and arm, Lawrey brought a medical malpractice action against Dr. Dawn Murray, the physician who performed the delivery. The case went to trial with a jury issuing a verdict in favor of Dr. Murray. Lawrey appeals claiming the district court ¹ abused its discretion by excluding certain testimony from her experts prior to trial. Lawrey also argues she was entitled to judgment as a matter of law on the issue of informed consent; in the alternative Lawrey contends she should have been granted a new trial because of allegedly inflammatory and prejudicial statements Dr. Murray's counsel made in closing arguments. We affirm.

I

During a vaginal delivery, a newborn's shoulder can sometimes get stuck in the birth canal behind parts of the mother's anatomy. This condition is called shoulder dystocia. There are two places where a newborn's shoulder can get stuck. The first is behind the mother's sacral promontory, a part of the tailbone. When a newborn's shoulder gets stuck in this location, the condition is referred to as a posterior shoulder dystocia. A posterior shoulder dystocia occurs before the newborn's head has crowned.

The second place a newborn's shoulder can get stuck is behind the mother's pubic symphysis. The pubic symphysis is the fixed joint located at the front of the pelvic girdle, where the two pubic bones meet. It is not actually a bone, but is comprised of cartilage, so is similar to a bone in terms of its rigidity. This location is farther along the birth canal. When a newborn's shoulder gets stuck in this location, the condition is referred to as an anterior shoulder dystocia. An anterior shoulder dystocia occurs after the newborn's head has crowned. In fact, a newborn's head commonly retreats back into the birth canal after initially crowning if there is an anterior shoulder dystocia, a condition known as the turtle sign.

Shoulder dystocia can cause injury to the brachial plexus, the network of nerves running from the spinal cord to the shoulder and arm. These nerves can stretch or tear while the newborn's shoulder is becoming dislodged from behind the sacral promontory or the pubic symphysis. In those instances of shoulder dystocia when an injury does occur, the injury is usually temporary. In rare instances, the condition results in permanent injury.

Aubree Lawrey was born on March 1, 2008, with a permanent brachial plexus injury to her right shoulder and arm. The injury resulted from a posterior shoulder dystocia, meaning Aubree's shoulder got stuck behind her mother's tailbone, before her head had crowned. During prenatal visits with Dawn Lawrey, Dr. Murray had discussed the possibility of the baby getting stuck during the delivery. Dr. Murray had these discussions because of the problems Lawrey had during her first childbirth, and the anticipated size of the second baby. Although Dr. Murray discussed the possibility of the baby getting stuck during delivery, she did not mention the possibility of a permanent injury. Lawrey opted to have a vaginal delivery rather than a cesarean section.

After Lawrey realized her daughter's injury was permanent, she brought a medical malpractice action against Dr. Murray claiming the injury was caused by negligent treatment. She also claimed a lack of informed consent, alleging Dr. Murray was obligated to warn her of the possibility that a vaginal delivery could result in a permanent nerve injury, and if she had been informed of the possibility of permanent injury, she would have chosen to have a cesarean section.

As the suit progressed, Lawrey disclosed the reports of two expert physicians. Both physicians opined the injury resulted from Dr. Murray applying excessive lateral traction to Aubree's head during delivery, notwithstanding the fact that Aubree's shoulder had been stuck behind her mother's tailbone before her head had even crowned. Both experts further believedthe maternal forces of labor (i.e., the mother pushing) can never cause permanent nerve injuries of the type suffered by Aubree, and permanent injuries are always the result of excessive physician-applied traction (i.e., the doctor pulling).

Prior to trial, Dr. Murray filed a motion in limine seeking to preclude both of Lawrey's experts from testifying that maternal forces of labor cannot cause permanent brachial plexus injuries and that such injuries are always the result of excessive physician-applied traction. Dr. Murray further argued the two experts' testimony should be excluded because it did not fit the facts of this case, in that the medical records of the birth showed the delivery was not difficult, the delivery involved a posterior shoulder dystocia before the baby's head had crowned, and Dr. Murray did not apply excessive traction to Aubree's head or neck during the delivery.

The district court granted the motion in limine. The district court equated the two experts' testimony—brachial plexus injuries are always the result of physician applied traction—with essentially advancing a theory of res ipsa loquitur (i.e., a brachial plexus injury is an occurrence which would not happen in the absence of negligence). The district court determined the doctrine of res ipsa loquitur was inapplicable as a matter of law to the circumstances involved in this case because “[a]ll credible evidence before this Court suggests that brachial plexus injuries ... can and do occur in a fixed percentage of births where no traction is applied by the birth attendant.” The district court precluded the two experts “from offering any opinion that maternal expulsive forces cannot cause permanent brachial plexus injuries, or that birth-related brachial plexus injuries are always the result of traction applied to an infant's head and neck by the birth-attendant.”

The district court further precluded the two experts from testifying “that the injury to Plaintiff Aubree Lawrey was caused by Defendant Dr. Murray applying excessive traction to infant Aubree's head and neck.” Lawrey filed a motion for reconsideration, which was denied, with the district court noting there was no evidence “to suggest Dr. Murray applied any traction to Aubree's head or neck during delivery[.]” In the absence of such evidence, the district court reiterated its belief the two experts were essentially advancing a theory of res ipsa loquitur.

With her experts prohibited from testifying about what they believed caused the injury, Lawrey proceeded at trial solely on the issue of a lack of informed consent. Lawrey argued the standard of care required Dr. Murray to warn her about the risk of a permanent brachial plexus injury. At trial, Dr. Murray said she warned Lawrey about the possibility of an injury to the child during a vaginal delivery, but admitted she failed to warn of the possibility of a permanent injury. Dr. Murray's expert testified, however, that such a warning was only required in the three situations mentioned in guidelines provided by the American Congress of Obstetricians and Gynecologists (ACOG). The ACOG guidelines advise physicians to consider performing a cesarean section to prevent possible permanent nerve damage from shoulder dystocia in three circumstances: (1) if the mother is diabetic and the baby weighs over 4500 grams (just short of ten pounds); (2) if the mother is non-diabetic but the baby weighs over 5000 grams (just over eleven pounds); or (3) if the mother had a prior delivery complicated by a severe shoulder dystocia or a birth-related brachial plexus injury. None of the three circumstances applied to Dawn Lawrey, so Dr. Murray's expert testified a warning about possible permanent injury was not required. The jury rendered a defense verdictin favor of Dr. Murray, concluding she did not violate the standard of care by failing to warn Lawrey about the possibility of a permanent injury to her child.

Lawrey filed a post-trial motion for judgment as a matter of law and, in the alternative, a motion for new trial. The motion for a new trial was brought, in part, on the grounds that defense counsel made improper and unfairly prejudicial comments during his closing argument. Specifically, Lawrey claimed it was improper and prejudicial for defense counsel to refer to plaintiff's counsel as “disingenuous, inaccurate, and non-forthright.” Lawrey also claimed it was improper and prejudicial for defense counsel to claim a plaintiff's verdict would send a message to other doctors to perform more cesarean sections than necessary in order to avoid being sued—“[t]he medical community is going to be listening to your verdict,” and “the community needs to hear from you.” The district court denied both motions.

Lawrey filed a timely appeal. On appeal, Lawrey contends the district court abused its discretion in granting the motion in limine precluding her experts from giving their opinion that the only possible cause of Aubrey's injury was excessive physician-applied traction. Lawrey also claims she proved a lack of informed consent as a matter of law based on Dr. Murray's admission that she failed to warn about the possibility of a permanent injury, and thus the district court erred in denying her motion for judgment as a matter of law. Finally, Lawrey contends the district...