Long v. Mo. Delta Med. Ctr.

• Decision Date: 13 November 2000
• Docket Number: No. 22927.,22927.
• Citation: 33 S.W.3d 629
• Parties: Troy LONG and John A. Thompson, Conservators of Taylor Thompson, a Minor, Plaintiffs-Respondents, v. MISSOURI DELTA MEDICAL CENTER, Defendant-Appellant.
• Court: Missouri Court of Appeals

33 S.W.3d 629

Troy LONG and John A. Thompson, Conservators of Taylor Thompson, a Minor, Plaintiffs-Respondents,

v.MISSOURI DELTA MEDICAL CENTER, Defendant-Appellant.

No. 22927.

Missouri Court of Appeals

Southern District

Division Two.

Date: November 13, 2000.

Petition for Rehearing and Transfer Denied December 5, 2000.

Application for Transfer Denied January 23, 2001.

James J. Hennelly, Matthew J. Fairless, and Karen Carr Moske of Hazelwood &amp Weber, L.L.C., of St. Charles, MO, for Appellant.

Maurice B. Graham and Morry S. Cole, of The Graham Law Firm, of St. Louis, Mo., and John Heisserer, of Dickerson, Rice, Speth, Heisserer & Summers, of Cape Girardeau, MO, for Respondents.

JAMES K. PREWITT, Judge.

Plaintiffs allege that the negligence of Defendant and a previous defendant, David Carr, a medical physician, caused Taylor Thompson to have cerebral palsy.Shortly before the trial, Dr. Carr reached a settlement with the Plaintiffs for $950,000.00.After a jury trial, a verdict was received assessing fifty-seven percent of the fault for Taylor Thompson's damages due to Dr. Carr, and forty-three percent due to negligence of a nursing employee of Defendant.The jury found damages of $5,212, 455.00.Judgment was then entered against Missouri Delta Medical Center ("MDMC"), the remaining defendant, totaling $2,241, 355.65.The future damages were to be paid in installments over ten years.After the trial court denied Defendant's "Motion for Judgment Notwithstanding the Verdict, Motion for a New Trial, and, in the Alternative for Remittitur, " MDMC appealed, presenting eleven points relied on.¹

I.FACTS AND RELATED PROCEEDINGS

Taylor Elizabeth Thompson("Taylor") was born on October 1, 1996 at the Missouri Delta Medical Center in Sikeston, Missouri.Due to complications during labor and following an attempted vaginal delivery, an emergency cesarean section was performed.At birth, she suffered from "meconium aspiration syndrome" and "bradycardia/birth asphyxia."These conditions caused Taylor to suffer from "spastic quadriplegia related to encephalomalacia resulting from perinatal hypoxia and ischemia, " or cerebral palsy.Taylor's disability was pronounced; she was sightless speechless, deaf, and unable to control her limbs or swallow.This action initially sought damages from Missouri Delta Medical Center ("MDMC") and David A. Carr, M.D. for malpractice, alleging that Taylor's condition resulted from the actions of Dr. Carr and Nurse Cathy McDonald, an employee of MDMC, in the October 1, 1996 delivery of Taylor Thompson.The events that form the basis for Plaintiffs' complaint follow.²

Elizabeth Long, Taylor's mother, was admitted to the hospital at approximately 5:00 p.m on September 30, 1996, after a routine office examination that morning showed that her cervix was dilated at one centimeter and an ultrasound performed during the examination showed the baby was eight and one-half to nine pounds insize.At the hospital, Cervioil was placed on her cervix to induce labor.She was administered fluids intravenously and was administered oxygen by mask.Her water broke at approximately 4:00 a.m., at which point she was dilated to five centimeters.By 8:20 a.m., on October 1 1996, Ms. Long was fully dilated and expressed the urge to push, and Dr. Carr ordered her to do so.Dr. Carr also ordered that Ms. Long continue to be administered five liters of oxygen per minute, but the strap for the oxygen mask was never placed around her head.Ms. Long apparently removed the mask several times, and her mother and a friend who were with her would try to put it back on her.Ms. Long stated that "[t]hey kept trying to put the oxygen mask on.Every time it felt like it was shutting off my air....I could get more air without it on."

Dr Carr examined Ms. Long on October 1, 1996, at 8:02, 8:12, and 8:25 a.m.After Dr. Carr left at 8:25 a.m., Nurse McDonald remained in the room.She was the only individual providing care to Ms. Long between 8:28 a.m. and 8:37 a.m.During that time, Nurse McDonald marked the fetal monitor strip to indicate nursing interventions.She did not make any entries on Ms. Long's charts during this time period because the chart was at the nurse's station and she did not want to leave the patient to retrieve it.Instead, she waited until after the delivery was complete.

At 8:28 a.m., Taylor's heart rate dropped to a "non-reassuring" level.Nurse McDonald contends that markings she made on the fetal monitor strip show that she performed nursing interventions at 8:29 a.m. and 8:37 a.m., which would indicate that she turned Ms. Long onto her side; however, Nurse McDonald only remembers elevating Ms. Long's hip.Nurse McDonald never told Ms. Long to stop pushing.Nurse McDonald did not make sure Ms. Long was wearing her oxygen mask, even though she acknowledged that it was her responsibility to do so.Although Nurse McDonald was permitted under Dr. Carr's orders to increase the amount of oxygen to six to eight liters per minute for "fetal compromise, "she did not.At 8:37 a.m., there was a rise in Taylor's fetal heart rate, which continued to rise until approximately 8:51 a.m.

There is a dispute over what time Nurse McDonald went to find Dr. Carr, but it apparently was between 8:37 a.m. and 8:45 a.m. Nurse McDonald says she left her patient only for the amount of time it would take for her to walk from the patient's room to the nurse's station at the end of the hall to get Dr. Carr and return, a couple of minutes at the most.Dr. Carr accompanied her back to the room and looked at the fetal monitoring strip, after which, at 8:45 a.m., Nurse McDonald noted that Dr. Carr was present in the delivery room ("Dr. Carr here").From the point that Dr. Carr entered the room (8:45 a.m. at the latest), Nurse McDonald acted only under his instructions.Dr. Carr continued to attempt a vaginal delivery of Taylor.He placed Ms. Long in the lithotomy position (with her legs in stirrups) at 8:47 a.m.At 8:50 a.m., Dr. Carr ordered first Nurse McDonald and then two male physicians to apply fundal pressure.³

At 8:53, the fetal heart rate dropped, then it recovered at 8:54, and then dropped again at 8:55.Dr. Carr continued to order Ms. Long to push during this time.After 8:55 a.m., the fetal heart rate continued to decline.At 9:00 a.m., Dr. Carr began using a vacuum extractor to attempt to remove the baby.At approximately 9:07 a.m., he ceased using the vacuum extractor and began using forceps.Dr. Carr's use of forceps was unsuccesful, and by 9:10 a.m., he had arranged for the operating room to prepare for an emergency cesarean section.Taylor's fetal heart rate continued to drop.

The emergency cesarean section was performed between 9:15 a.m. and 9:21 a.m., approximately 40 minutes after Taylor first showed signs of reduced heart rate.She was not breathing when she was born.Her first breath occurred 19 minutes after her birth.Taylor's birth certificate stated that she suffered from the abnormal conditions of "meconium aspiration syndrome" and "bradycardia."

Immediately following her birth, Taylor was taken by helicopter to St. Louis Children's Hospital in St. Louis, Missouri, where she remained for approximately six weeks.Taylor had to use a ventilator to breathe, a tube in her nose to eat, and a catheter to dispose of her wastes.Although she was able to return home, she required 24-hour nursing care.At the time of trial, she was still fed by tube, her temperature had to be monitored hourly, she required frequent suctioning, and she received daily physical therapy.She also required medication to control her seizures and relax her stiffness.She was admitted to the hospital at least six times since her initial hospitalization.

At trial, Plaintiffs presented Dr. Barry Schiffrin and Nurse Donna Stephens to testify on the standard of care.Neither Dr. Schiffrin nor Nurse Stephens criticized Nurse McDonald's actions prior to 8:28 a.m.Dr. Schiffrin opined that Nurse McDonald should have notified Dr. Carr promptly when the fetal heart rate dropped at 8:28 a.m.Dr. Schiffrin thought that, in response to the reduced fetal heart rate, Nurse McDonald should have turned Ms. Long on her side, provided oxygen, and moderated the amount of pushing.Nurse Stephens testified that at 8:28 a.m., Nurse McDonald should have turned Ms. Long on her side, and if that did not create an improvement in the fetal heart rate, Nurse McDonald should have increased Ms. Long's fluids, put her on oxygen, and immediately called for the doctor.

Defendant's expert, Nurse Gayla Wayman, also recommended administering fluids and oxygen and repositioning the mother.She testified that the fetal monitor strips reflected that Nurse McDonald did reposition the patient, and that shifting the hip would be adequate.Nurse Wayman did not criticize Nurse McDonald's care, and stated that "without exception, she did a very good job."Defendant's expert, Dr. Bruce Bryan, also testified that Nurse McDonald met the requisite standard of care.

On cross-examination, Dr. Schiffrin was asked whether Taylor would have been born without injury at various times between 8:25 and 8:50 a.m.

Q: If he had performed the C-section or ordered one at 8:25 and performed it, would the fundal pressure issue be eliminated?

A: Yes, and the pushing would have been eliminated and also the forceps and vacuum, and I believe the baby would have been born intact.

Q: How about the same thing at 8:40?

A: We are getting closer, but I still think-on the basis of variability that I thought the baby was intact, recoverable at 8:40.I do not believe, but don't know with a hundred percent certainty, I do not believe the baby [sic] yet injured at 8:40, but it is obviously in significant stress at this point.

....

Q: Do you believe the baby still would have been born without problems [at 8:47 or 8:50]?

A: As I said, there is a fair chance that it would not have been born without problems...I am trying to agree...