Leatherwood v. Ehlinger

• Decision Date: 18 June 2002
• Docket Number: No. COA01-728.,COA01-728.
• Court: North Carolina Court of Appeals
• Parties: Nelly LEATHERWOOD, individually, Nelly Leatherwood and James David Cooper, Guardian Ad Litems for Amelia Janene Cooper, and Nelly Leatherwood and James David Cooper, individually, Plaintiffs, v. Thomas M. EHLINGER, M.D., Defendant.

564 S.E.2d 883

151 NC App. 15

Nelly LEATHERWOOD, individually, Nelly Leatherwood and James David Cooper, Guardian Ad Litems for Amelia Janene Cooper, and Nelly Leatherwood and James David Cooper, individually, Plaintiffs, v. Thomas M. EHLINGER, M.D., Defendant.

No. COA01-728.

Court of Appeals of North Carolina.

June 18, 2002.

Long, Parker, Warren & Jones, P.A., by Steve Warren, Asheville, for plaintiffs-appellants.

Dean & Gibson, L.L.P., by Rodney A. Dean and John W. Ong, Charlotte, for defendant-appellee.

WALKER, Judge.

Plaintiffs Nelly Leatherwood (Ms. Leatherwood) and James David Cooper (Mr. Cooper), individually and as guardian ad litems for Amelia Janene Cooper (Amelia), filed this action on 18 May 1998 alleging defendant was negligent in the medical care and treatment he provided during the delivery of Amelia. Defendant denied liability and a trial commenced on 27 November 2000. At the end of plaintiffs' evidence, defendant moved to strike the testimony of plaintiffs' medical expert, Dr. Stephen Jones (Dr. Jones), and for a directed verdict. The trial court denied both of these motions. At the close of all the evidence, defendant again moved to strike Dr. Jones' testimony and for a directed verdict. The trial court denied the motion to strike but granted defendant a directed verdict on 22 December 2000.

The pertinent facts viewed in a light favorable to plaintiffs are summarized as follows: Defendant is a physician practicing as an obstetrician gynecologist at the Asheville Women's Medical Center (AWMC). In February 1992, Ms. Leatherwood became pregnant with Amelia and began prenatal treatment with AWMC under the care of Drs. Hill and Callahan. During this time, Ms. Leatherwood was diagnosed with gestational diabetes. Additionally, thirty-six weeks into pregnancy, her baby's fetal weight was estimated at eight and one-half pounds.

On the morning of 12 October 1992, Ms. Leatherwood experienced preliminary stages of labor and was admitted to a birthing room at Memorial Mission Hospital in Asheville. With her were her mother, Merceidith Bacon (Ms. Bacon), and Mr. Cooper. The nurse present, Janet McKendrick (Nurse McKendrick), took Ms. Leatherwood's vital signs and attached a fetal monitor across her stomach.

After her labor began to intensify, defendant entered the birthing room and informed Ms. Leatherwood that Dr. Hill was unavailable and that he would be delivering her baby. This was the first contact Ms. Leatherwood had with defendant. According to Ms. Leatherwood and Ms. Bacon, at no time did defendant make any effort to estimate the baby's fetal weight. Ms. Leatherwood then started to push but experienced difficulty with the delivery. To assist her, defendant instructed Ms. Bacon to insert mineral oil inside Ms. Leatherwood's vagina. When this failed to produce Amelia's head, defendant directed Ms. Bacon and Nurse McKendrick to stand on either side of Ms. Leatherwood "pulling [her] knees back against her chest." This maneuver also proved unsuccessful so defendant used a vacuum extractor to deliver Amelia's head.

Although Amelia's head had been produced, Ms. Leatherwood was unable at this point to deliver the rest of Ameila's body. Defendant determined that this was due to shoulder dystocia; a condition in which the baby's shoulder is impacted behind the mother's pubic bone thereby preventing delivery of the rest of the body. To correct the problem, defendant first applied "lateral traction" on Amelia's head attempting to roll her shoulder. According to Ms. Bacon's testimony, defendant pulled "the baby's head downward toward the floor in a left to right ... motion ... several times ... tugging very hard." He next pulled "the baby's head which [was] facing [Ms. Leatherwood's] left interior thigh ... away from that thigh in a backwards motion, with the head going back towards the interior right thigh." Finally, as recounted by Ms. Bacon, defendant grasped Amelia's head "[bringing it] toward the pubic bone in a right to left motion ... twisting it upward."

Despite these efforts, Ms. Leatherwood still was unable to deliver the rest of Amelia's body. Nurse McKendrick then straddled Ms. Leatherwood and placed her hands on the upper portion of Ms. Leatherwood's stomach. Defendant next made an incision in Ms. Leatherwood's vaginal opening. Thereafter, with each ensuing contraction Nurse McKendrick applied pressure to Ms. Leatherwood's pelvic area while defendant continued to manipulate the baby's head. Following two or three contractions, the rest of Amelia's body was delivered.

The hospital's medical records noted that Amelia weighed nine pounds, fifteen ounces and that she had limited function in her left arm. Subsequent medical examinations and exploratory surgery determined that she had a complete tear of the C8-T1 nerve root in her left brachial plexus—a nerve structure located in the neck and armpit. Amelia was diagnosed as having Erb's Palsy—a condition whereby she cannot elevate her left arm at her shoulder and is unable to externally rotate her left arm. She has difficulty performing routine tasks at home and school without assistance.

I.

Plaintiffs first contend the trial court erred in granting defendant's motion for a directed verdict. A motion for a directed verdict requires the trial court to determine whether the evidence, when considered in the light most favorable to the non-movant, was sufficient for submission to the jury. Smith v. Wal-Mart Stores, Inc., 128 N.C.App. 282, 285, 495 S.E.2d 149, 151 (1998)(quoting Kelly v. International Harvester Co., 278 N.C. 153, 157, 179 S.E.2d 396, 398 (1971)

). "The grounds for the motion must be specifically stated ... and an appellate court will not consider grounds other than those stated to the trial court in reviewing the trial court's ruling on the motion." Stacy v. Jedco Const., Inc., 119 N.C.App. 115, 123, 457 S.E.2d 875, 881,

disc. rev. denied, 341 N.C. 421, 461 S.E.2d 761 (1995)(citing La Grenade v. Gordon, 60 N.C.App. 650, 299 S.E.2d 809 (1983) and Feibus & Co. v. Godley Construction Co., 301 N.C. 294, 271 S.E.2d 385 (1980)). All evidentiary conflicts are resolved in favor of the non-movant. See Merrick v. Peterson, 143 N.C.App. 656, 661, 548 S.E.2d 171, 175,

disc. rev. denied, 354 N.C. 364, 556 S.E.2d 572 (2001).

In negligence cases, a directed verdict is seldom appropriate in view of the fact that the issue of whether a defendant breached the applicable standard of care is normally a factual question which the jury must answer. See Barber v. Presbyterian Hosp., 147 N.C.App. 86, 88, 555 S.E.2d 303, 305 (2001)

. As our Supreme Court has aptly stated, "Where the question of granting a directed verdict is a close one, the better practice is for the trial judge to reserve his decision on the motion and allow the case to be submitted to the jury." Manganello v. Permastone, Inc., 291 N.C. 666, 669-70, 231 S.E.2d 678, 680 (1977). Nevertheless, where there is an absence of evidence indicating that a defendant's failure to conform with the applicable standard of care proximately caused a plaintiff's injury, a directed verdict is proper. See Weatherford v. Glassman, 129 N.C.App. 618, 621, 500 S.E.2d 466, 468 (1998)(citing Lowery v. Newton, 52 N.C.App. 234, 237, 278 S.E.2d 566, 570,

disc. rev. denied, 303 N.C. 711 (1981)(outlining the elements a plaintiff must show in a medical malpractice action)).

With these principles in mind, we turn to plaintiffs' contention that they presented sufficient evidence to withstand defendant's motion for a directed verdict. Although the trial court did not specify the grounds upon which it granted defendant's motion, our review of the record reveals defendant's argument centered on the following: (1) plaintiffs' failure to establish the applicable standard of care in Asheville or similar communities at the time of Amelia's injury and that defendant had breached said standard, and (2) the lack of a causal link between defendant's care and Amelia's injury.

A. Defendant's Breach of the Applicable Standard of Care

The guidelines for establishing the applicable standard of care in a medical malpractice action are set forth in N.C. Gen.Stat. § 90-21.12, which provides in pertinent part:

The defendant shall not be liable for the payment of damages unless the trier of facts is satisfied by the greater weight of the evidence that the care of such health care provider was not in accordance with the standards of practice among members of the same health care profession with similar training and experience situated in the same or similar communities at the time of the alleged act giving rise to the cause of action.

N.C. Gen.Stat. § 90-21.12 (2001). Ordinarily, because the practice of medicine involves a specialized knowledge beyond that of the average person, the applicable standard of care must be established through expert testimony. See Mazza v. Huffaker, 61 N.C.App. 170, 175, 300 S.E.2d 833, 837,

disc. rev. denied, 309 N.C. 192, 305 S.E.2d 734 (1983)(quoting Jackson v. Sanitarium, 234 N.C. 222, 226-27, 67 S.E.2d 57, 61 (1951)).

Here, plaintiffs sought to establish the applicable standard of care through the testimony of Dr. Jones, an obstetrician gynecologist with a subspecialty in perinatology and licensed to practice in South Carolina and Alabama. The record shows that Dr. Jones initially testified that a baby with a large fetal weight and whose mother has developed gestational diabetes, has a "20 to 50 percent risk" of being born "having shoulder dystocia." He then testified as to the procedures an obstetrician employs to identify a shoulder dystocia emergency. According to Dr. Jones, after a baby's head is produced and the rest of the body fails to follow, the obstetrician should apply "gentle traction down on the baby's head" to confirm that shoulder dystocia exists. To illustrate for the jury what he meant by "gentle traction," Dr. Jones used an anatomical model which depicted the anatomy of a...