Morrell v. Finke
| Decision Date | 03 November 2005 |
| Docket Number | No. 2-01-159-CV.,2-01-159-CV. |
| Citation | 184 S.W.3d 257 |
| Parties | Robert MORRELL and Donna Morrell, Individually and As Next Friends of Madeline Morrell, A Minor, Appellants, v. Mary Angeline FINKE, M.D., Obstetrical & Gynecological Associates of Arlington, Arlington Memorial Hospital Foundation, Inc. d/b/a Arlington Memorial Hospital, Rose Fenton, R.N.C., Sandy Stephens, R.N., and Marianne Walker, R.N., Appellees, and Mary Angeline Finke, M.D. and Obstetrical & Gynecological Associates of Arlington, Appellants, v. Robert Morrell and Donna Morrell, Individually and As Next Friends of Madeline Morrell, A Minor, Appellees, and Arlington Memorial Hospital Foundation Inc. d/b/a Arlington Memorial Hospital, Rose Fenton, R.N.C., Sandy Stephens, R.N., and Marianne Walker, R.N., Appellants, v. Robert Morrell and Donna Morrell, Individually and As Next Friends of Madeline Morrell, A Minor, Appellees. |
| Court | Texas Court of Appeals |
Hill Gilstrap, P.C., Frank Gilstrap, and Stefanie Martin Klein, and Robert A. Gammage, Arlington, for Robert and Donna Morrell.
Cantey & Hanger, L.L.P., and John F. Gray, Evelyn R. Leopold, Fort Worth, Strasburger & Price, L.L.P., and P. Michael Jung, Dallas, for Arlington Memorial Hospital Foundation, Rose Fenton, R.N.C., Sandy Stephens, R.N., and Marianne Walker, R.N.
Cowles & Thompson, P.C., and Charles T. Frazier, Jr., and Mark D. Cronenwett, and Gregory J. Lensing, Dallas, for Mary Angeline Finke, M.D., and Obstetrical & Gynecological Associates of Arlington.
Donna Morrell gave birth to her first child, Madeline, on December 31, 1994, at Arlington Memorial Hospital. Donna and her husband, Robert Morrell, individually and as next friends for Madeline (Plaintiffs), brought suit alleging that Madeline suffered permanent neurological injuries proximately caused during labor and delivery by the negligence of Defendants Mary Angeline Finke, M.D.; Dr. Finke's employer, Obstetrical & Gynecological Associates of Arlington, Inc. (the clinic); Rose Fenton, R.N.C., Sandy Stephens, R.N., and Marianne Walker, R.N. (the nurses); and their employer, Arlington Memorial Hospital Foundation, Inc. (the hospital), collectively Defendants. After a five-week trial, the jury returned a verdict for Plaintiffs and against all Defendants.1 The trial court granted a judgment notwithstanding the verdict (JNOV) on the jury's $500,000 damage award to Donna and Robert for mental anguish and on the jury's $2,000,000 damage award to Donna and Robert for loss of consortium. Plaintiffs appeal from the JNOV. Dr. Finke, the clinic, the nurses, and the hospital appeal from the judgment against them, challenging both liability and damages. For the reasons discussed below, we will modify the trial court's judgment to delete the imposition of joint and several liability upon the nurses for the jury's award of past medical expenses to Robert and Donna Morrell individually and render judgment that Robert and Donna, individually, recover nothing from the nurses on their claim for past medical expenses because that claim is barred by the statute of limitations. We will also modify the trial court's judgment to delete the imposition of joint and several liability upon Rose Fenton, R.N.C. because the jury found her only five percent proportionally responsible. As modified, we will affirm the remainder of the trial court's judgment, including the JNOV on the Morrells' mental anguish and loss of consortium claims.
Donna's water broke in the early hours of December 31, 1994. Her husband, Robert, drove her to the hospital, where she was admitted to the labor and delivery unit at 8:45 a.m. Both sets of the baby's grandparents arrived soon thereafter. Upon Donna's arrival, the nurse on duty drew blood for laboratory analysis, attached an external fetal monitor to record the baby's heartbeat, started an intravenous line, performed a cervical examination, and prepared Donna for labor.2
Experts testified that a baby's heart rate is monitored during labor as a means of assessing the baby's oxygenation, including oxygenation of the baby's brain. A fetal heart monitor strip is read at regular and frequent intervals to determine whether the baby's heart rate reflects "hypoxia," a deficiency of oxygen reaching the tissues of the body that could lead to depletion of the baby's oxygen reserves over time, resulting in brain damage.
A fetal heart monitor strip will be either "reassuring" or "nonreassuring." In fact, the hospital's "Fetal Heart Monitoring Policy (Nurses Responsibility)" provides that fetal heart "[p]atterns will be classified as either reassuring or nonreassuring." [Emphasis added.] AONE3 standards as well as the hospital's fetal heart monitoring policy define "accelerations" as increases in the baby's heart beat of fifteen beats per minute lasting fifteen seconds. Following a contraction, accelerations are "reassuring" by showing that the baby is oxygenated and tolerating labor. "Beat-to-beat variability" is defined as follows by the hospital's fetal heart monitoring policy:
Short Term Variability (beat to beat) — Is most accurately determined by internal spiral electrode. This aspect of patient monitoring is the most indicative of fetal well-being and response to stressors of labor. Please document as:
Present = 3 bpm or greater
Absent =
Thus, a normal variation of three beats per minute or more in the fetal heart rate is a reassuring sign of fetal well-being, indicating that the baby's brain is responding to oxygenation. A less than three-beat-per-minute variation in the baby's heart rate documents that beat-to-beat variability is "absent" and constitutes a nonreassuring pattern.
The fetal heart monitor strip will also show "decelerations," (decels) in the baby's heart rate that may be early, variable, or late. Early decels occur with a contraction and indicate a benign pattern. Variable decels, variable in shape rather than uniform in pattern, may also occur during the contraction. Variable decels are generally caused by umbilical cord compression and are indicative of decreased oxygenation to the baby. Late decels document a deceleration of the baby's heart rate beginning at or after the midpoint of a contraction. Late decels are indicative of placental insufficiency, meaning that the baby is not being perfused well by the placenta.
Babies have stored oxygen in cells throughout their bodies called "fetal reserves." Severe, prolonged, variable, or late decelerations are "nonreassuring" and are considered "ominous" if they become "repetitive" because every late or variable decel presents the possibility of depleting fetal reserves, depending on the degree of the insult.4 Experts testified that, over time, chronic or repetitive decels are nonreassuring because they deplete fetal reserves and make the baby less able to tolerate each successive insult. Madeline's fetal heart monitor strip began at approximately 8:45 a.m., tracing her heart rate from the external fetal heart monitor. At approximately 9:40 a.m., Dr. Finke applied a fetal scalp electrode to Madeline's head to monitor her heart rate more accurately. Experts testified that Madeline's fetal heart monitor strip tracings were nonreassuring from the start because she had no heart rate "accelerations" as that term was defined by the hospital fetal heart monitoring policy and, also according to the policy, beat-to-beat variability was "absent."
Because Madeline's fetal heart monitor strip was nonreassuring, nurses began an IV on Donna and turned her onto her left side. Madeline's strip still did not become reassuring. Dr. Finke, the obstetrician on call for the clinic at the hospital that New Year's Eve, first saw Donna at 9:40 a.m. Dr. Finke reviewed the prenatal records, took Donna's medical history, examined the fetal heart monitor strip, performed a cervical examination, and determined the baby's orientation by sonogram. The baby was full-term at an estimated eight pounds and active, the amniotic fluid was clear with no bleeding, and Donna was having irregular contractions.
Dr. Finke confirmed from her examination that Donna's pelvis was adequate for vaginal delivery, and she anticipated a vaginal delivery with the alternative of a cesarean section if maternal or fetal indications were present. At 10:00 a.m., Dr. Finke formulated her plan to administer Pitocin to stimulate uterine contractions if no further cervical dilation occurred within two hours. She wrote orders for lab work, Pitocin, an antacid, and pain and antinausea medication if needed.
Donna's cervix was dilated only one of the ten centimeters necessary for delivery, with the baby in a head-downward position at a minus two station in the birth canal at 8:45 a.m. Dr. Finke's examination revealed that the fetus had progressed to a minus one station at 10:00 a.m. "Station" refers to the position of the baby's head as it descends in the birth canal, with reference to the ischial spines. Dr. Finke used a five-point system for measuring the station by centimeters, ranging from "minus five" centimeters above, to "plus five" below the ischial spines. The nurses' method for measuring stations was purportedly different from Dr. Finke's, and this difference would generate a factual dispute at trial.
At 11:00 a.m., Nurse Marianne Walker came on duty as the labor and delivery nurse assigned to Donna. By 11:15 a.m., the variable decelerations in Madeline's heartbeat started to widen out and deepen, meaning that it was taking her heart longer to return to baseline. At 12:05 p.m., Nurse Walker began administering Pitocin, as Donna was still not in active labor and dilation of her cervix was not progressing. By 12:40 p.m., Donna was dilated to...
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