Mallon v. Campbell, 93-3452
| Decision Date | 02 May 1996 |
| Docket Number | No. 93-3452,93-3452 |
| Citation | 551 N.W.2d 62,202 Wis.2d 647 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. Scott MALLON, Susan Mallon and Susan E. Mallon, Special Administrator for the Estate of Ashley Mallon, Plaintiffs-Appellants, v. Craig W. CAMPBELL, M.D., Wisconsin Patients Compensation Fund, Columbus Community Hospital, Wisconsin Association Optional Segregated Account, and Physicians Insurance Company, Defendants-Respondents. |
| Court | Wisconsin Court of Appeals |
Before EICH, C.J., GARTZKE, P.J., and SUNDBY, J.
Scott and Susan Mallon, and Susan Mallon as Special Administrator of the Estate of Ashley Mallon, 1 deceased, appeal from a judgment and order denying their motion for judgment on the verdict and granting a directed verdict for defendants, Dr. Craig W. Campbell, Columbus Community Hospital, Wisconsin Patients Compensation Fund and Wisconsin Hospital Association Optional Segregated Account.
The issues are: (1) whether the trial court erred in granting defendants' motions for a directed verdict on the ground that plaintiffs produced insufficient evidence on the issue of causation; (2) whether the trial court correctly refused to apply the burden of production enunciated in Ehlinger v. Sipes, 155 Wis.2d 1, 454 N.W.2d 754 (1990); and (3) if we reverse the judgment, we must remand for rulings on the defendants' remaining post-trial motions.
We conclude that the trial court did not err when granting defendants' motions for a directed verdict, and it properly applied Ehlinger. Because we affirm the judgment and order, we do not reach the remaining issue.
On December 12, 1986, Susan Mallon gave birth to a daughter, Ashley. Ashley was born severely brain damaged and required twenty-four-hour care and monitoring. The Mallons brought this action against Columbus Community Hospital, alleging that the hospital negligently rendered care to Susan during the course of her pregnancy and delivery, and against Dr. Craig Campbell, alleging he negligently failed to respond properly when summoned to provide emergency care during Susan's delivery. Plaintiffs' theory is that Dr. Campbell negligently failed to make advance arrangements to have a qualified surgeon available at the Columbus Community Hospital to handle C-section deliveries. The same theory applies to the Beaver Dam Community Hospital. The jury found that Dr. Campbell and the hospital were negligent, and that their negligence was a cause of the damages to Ashley.
The facts are that at 2:15 a.m. on December 12 Susan Mallon arrived at Columbus Community Hospital to give birth. A nurse examined her and found that the fetal heart rate was normal. A hospital chart described the fetus as active at 6:35 a.m.
About 8:30 a.m., Dr. Charles Hansell examined Susan and concluded that she could deliver vaginally. Dr. Hansell does not perform major surgeries, including C-sections. About 11:45 a.m. he checked on Susan after learning that her contractions had become less frequent and were of poor quality. He and the nursing staff monitored the fetal heart rate and tones through a device placed on Susan's uterus. About 12:00 noon he administered Pitocin, a drug to stimulate uterine contractions and augment labor. About 12:30 p.m., Susan was taken to the delivery room. At 12:45 p.m., Dr. Hansell placed a scalp electrode on the fetus and began internal fetal monitoring to track the baby's progress. The fetal monitoring machine produced a graph of its recordings of the baby's heart rate and the mother's contractions.
Between 12:07 p.m. and 1:08 p.m., Dr. Hansell increased Susan's Pitocin. The baby's heart rate fluctuated, and at 1:08 p.m. the fetus showed signs of a lack of oxygen. Its heart rate fell under 100, a condition called bradycardia, and showed sudden dips called decelerations. In response, Dr. Hansell unsuccessfully attempted a forceps delivery. When he applied the forceps, Dr. Hansell believed he had a healthy baby. About 1:15 p.m. he called for Dr. Craig Campbell, the surgeon on call, to perform an emergency C-section. Dr. Hansell instructed one of the nurses to call the surgery crew. A hospital chart contains a notation stating that at approximately 1:23 p.m., "Crew here." However, Dr. Campbell was not. Nor was any other surgeon.
Calls were made to three other area physicians, all of whom were unavailable to come to the Columbus Community Hospital. One of the called physicians, Dr. H. Ahmed Ali, was willing to help, but he was in surgery at a hospital in Beaver Dam, a community near Columbus.
About 1:55 p.m., Dr. Hansell accompanied Susan by ambulance to the Beaver Dam hospital. Before boarding the ambulance, the internal fetal monitoring device was disconnected. During the trip to Beaver Dam, Dr. Hansell attempted to monitor the baby's heart rate, but whether the baby's heart rate was monitored continuously is disputed. At 2:15 p.m. Susan was admitted to the operating room of Beaver Dam Hospital. Dr. Ali performed the C-section, and Ashley was delivered at 2:38 p.m.
When Ashley was delivered, her heart rate was low, her color was bad and her muscle tone was flaccid. She was transferred to the neonatal intensive care unit at Madison General Hospital, and she was later diagnosed as having permanent brain damage, profound mental retardation, and severe cerebral palsy. On February 24, 1994, she died.
The Mallons tried their case on the theory that Dr. Campbell and the hospital had negligently failed to arrange for a surgeon to be on call during Susan's delivery. They asserted that the negligence of those defendants had been a substantial factor in causing Ashley's injuries.
At this point we need not review the testimony of the expert witnesses on the causation issue. The trial court instructed the jury that it could find causal negligence only if the jury was convinced that Ashley suffered injury following the time "when Dr. Hansell sought the assistance of a surgeon and for a reasonable response time thereafter...." The Mallons did not object to the instruction.
As we have said, the jury found both the hospital and Dr. Campbell negligent. The jury awarded Scott and Susan Mallon $267,124.75 for past medical and home care expenses, $468,000.00 for future medical and home care expenses; and $1.5 million for loss of society and companionship. The jury awarded nothing to Ashley.
After the verdict, the defendants renewed their motions for a directed verdict on the ground that the plaintiffs had failed to prove a causal connection between the alleged negligence and the brain damage that Ashley sustained. The trial court granted defendants' motion and the Mallons appealed.
A trial court may not grant a motion for directed verdict challenging the sufficiency of the evidence unless the court is satisfied that, "considering all credible evidence and reasonable inferences therefrom in the light most favorable to the party against whom the motion is made, there is no credible evidence to sustain a finding in favor of such a party." Section 805.14(1), STATS. We may not reverse a trial court's decision to dismiss for insufficient evidence unless the record shows that the court was clearly wrong. Weiss v. United Fire and Casualty Co., 197 Wis.2d 365, 389, 541 N.W.2d 753, 761 (1995).
When granting the defendants' motion to dismiss for insufficient evidence, the court stated two reasons why it concluded that the plaintiffs had not proven that the defendants' negligence caused Ashley's injuries. First, the court said, had Dr. Campbell and the hospital met the appropriate standard of care, Ashley would have been injured in any event. Second, no credible evidence showed that she suffered injuries during the period immediately preceding her delivery and after the lapse of the response time from when Dr. Hansell called for Dr. Campbell.
Viewing the evidence most favorable to the plaintiff, the trial court defined a reasonable response time as thirty minutes to prepare for surgery and three minutes from incision to delivery.
The trial court ruled that had Dr. Campbell arranged for Dr. Ali to take his place as the on-call surgeon at Columbus Community Hospital,
the same sequence of events would have ensured. Dr. Ali is called. He is in surgery, and he performs the C-section at his first opportunity in accord with the determination of Dr. Hansell to transport Mrs. Mallon to Beaver Dam. There is absolutely no difference in the result.
The trial court ruled that had the hospital arranged for another surgeon to be on-call, no guarantee existed that the other surgeon would have been available to render timely assistance. The court reasoned
In fact it cannot be expected that in any hospital a surgeon is always available, not otherwise occupied, prepared to respond upon demand. The real world is just not like that. On this day Dr. Campbell, for example, could have been in surgery himself and not immediately available. No one I suggest would argue that would be a deviation from any standard of care. Another expert cause witness of the plaintiffs, Jesse Hayes, specifically so testified. He also testified that he was not surprised to have only one surgeon in a small town. That that was a fact of life....And even if [a hospital had a surgeon available continuously for C-sections], that surgeon could be called to perform an emergency C-section and have there be a simultaneous need for another C-section by a different patient....Whether Dr. Ali was designated or not is of no consequence. He was called, agreed to assist and was available to come. Although not immediately available....Liability depends on violations of standards of care. And in this case adherence to those standards of care would have produced the same tragic results.
The Mallons argue that the...
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