Nealis v. Baird

• Decision Date: 07 December 1999
• Docket Number: No. 88653.,88653.
• Citation: 996 P.2d 438,1999 OK 98
• Parties: Sheila D. NEALIS and Michael Nealis, individually and as parents and next friends of Baby Nealis, a minor child, Plaintiffs-Appellants, v. Blake A. BAIRD, M.D., Jim Knecht, D.O., and Michael D. Hartwig, M.D., Defendants-Appellees.
• Court: Oklahoma Supreme Court

996 P.2d 438

1999 OK 98

Sheila D. NEALIS and Michael Nealis, individually and as parents and next friends of Baby Nealis, a minor child, Plaintiffs-Appellants, v. Blake A. BAIRD, M.D., Jim Knecht, D.O., and Michael D. Hartwig, M.D., Defendants-Appellees.

No. 88653.

Supreme Court of Oklahoma.

December 7, 1999.

Rehearing Denied February 8, 2000.

Carolyn S. Smith, Ponca City, Oklahoma, for Appellants.

Dale Reneau and Jay L. Chapman, Fenton, Fenton, Smith, Reneau & Moon, Oklahoma City, Oklahoma, for Appellees Blake A. Baird, M.D. and Michael D. Hartwig, M.D.

Larry D. Ottaway, Monty B. Bottom, and Michael T. Maloan, Foliart, Huff, Ottaway & Caldwell, Oklahoma City, Oklahoma, for Appellee Jim Knecht, D.O.

OPALA, J.

¶ 1 This court granted certiorari to settle the first impression question whether a claim may be brought under Oklahoma's wrongful death statute¹ on behalf of a nonviable fetus born alive. We are asked to decide whether the trial court committed reversible error by instructing the jury that damages are recoverable only if the deceased was a viable fetus or child at the time of his birth. We answer this question in the affirmative. Although we reach the same result as that of the Court of Civil Appeals, we vacate that court's opinion to provide a precedential ruling on a question of substantive law not previously determined by this court.

¶ 2 Also raised on certiorari are the following issues: (1) Did the erroneous instruction on viability carry over into deliberations on the Nealis's personal injury claim and mislead the jury? (2) Did the trial court err in refusing to instruct the jury on whether statutes governing abortions of potentially viable fetuses apply to the spontaneous, premature delivery of the Nealis child? (3) Does affirmance of the judgment on jury verdict for defendants Baird and Hartwig (on the personal injury claim) give rise — in the appellate stage of these proceedings — to preclusion of plaintiffs' wrongful death claim? We answer all three questions in the negative.

I THE ANATOMY OF LITIGATION

¶ 3 In the summer of 1991, Sheila Nealis sought prenatal care from Dr. Blake Baird and Dr. Michael Hartwig, board certified family physicians who practiced together in Perry, Oklahoma. Mrs. Nealis was examined by Dr. Baird on 28 August 1991. This was the one and only time Dr. Baird saw her as a patient. Mrs. Nealis testified that her pregnancy up until the time of Dr. Baird's examination had been normal. She informed Dr. Baird that she smoked one to one-and-a-half packs of cigarettes per day, and Dr. Baird advised her to quit smoking. In regard to Dr. Baird's examination, she testified that she experienced unusual discomfort during the physical examination and had an uneasy feeling in her stomach upon leaving the clinic. Later that afternoon she felt cramping and had symptoms of morning sickness. She awakened in the middle of the night discharging fluid and blood.

¶ 4 In the morning, still cramping and bleeding, Mrs. Nealis returned to the clinic where she was examined by Dr. Hartwig. Her condition was diagnosed as threatening miscarriage. Dr. Hartwig ordered an ultrasound, which was performed the next day, 30 August 1991. The ultrasound established the gestational age of the fetus at 8.5 weeks. It showed no abnormalities.

¶ 5 Between 30 August and 30 September, Mrs. Nealis continued to bleed and have intermittent cramping, but did not return to the clinic.² On 30 September 1991, she presented herself to the Perry Memorial Hospital emergency room. Hospital records reflect that she told their personnel that the bleeding had begun within an hour prior to her appearance in the emergency room, and not that she had been cramping and bleeding off and on throughout the previous month. She was seen by Dr. Hartwig, who again diagnosed her condition as threatening miscarriage. He performed an examination during which Mrs. Nealis testified she felt pulling and tugging. Dr. Hartwig admitted her to the hospital and another ultrasound was performed. It showed a fetal gestational age of 13.4 weeks. It also noted a faint linear echo along the inferior margin of the placenta, which the radiologist reported as a possible placental abruption.

¶ 6 Mrs. Nealis was discharged from the hospital on 1 October 1991. The discharge papers she was given instructed her to resume normal activities, but Dr. Hartwig's dictated discharge summary report indicates he told her (verbally) to be at bed rest. Mrs. Nealis denies she was so instructed. She was given an appointment to see Dr. Hartwig at the clinic on 9 October 1991. She did not keep this appointment. Another appointment was scheduled for 25 October 1991, but she did not appear for that appointment either. At this point, Drs. Baird and Hartwig sent Mrs. Nealis a certified letter releasing her from their care due to her failure to keep both scheduled and emergency room follow-up appointments. Neither physician ever treated Mrs. Nealis again. At no time did Dr. Hartwig refer Mrs. Nealis to an obstetrician or otherwise advise her to seek the services of a specialist in obstetrics.

¶ 7 Between 1 October 1991 and 25 November 1991, Mrs. Nealis continued to cramp and bleed but did not return to the Baird-Hartwig clinic. She testified that she was dissatisfied with their care and did not want to see them again. In late October or early November, she made an appointment with another physician for 5 December 1991. Her pregnancy came to an end before she could keep that appointment.

¶ 8 On 25 November 1991, Mrs. Nealis again presented herself to the Perry Memorial Hospital emergency room with bleeding and intermittent contractions. She was treated for premature labor by Dr. Jim Knecht, the physician on call that night. Based upon the date Mrs. Nealis gave for the first day of her last menstrual period, the gestational age of the fetus at this time was between 24 and 25 weeks. This conflicted with the clinical examination performed by Dr. Knecht as well as the two earlier ultrasound findings, based upon which the fetus had a gestational age of 20 weeks. Dr. Knecht admitted Mrs. Nealis to the hospital and a third ultrasound examination was performed. It agreed with Dr. Knecht's clinical examination and with the previous ultrasounds and showed the gestational age of the fetus to be 20-21 weeks. It also showed a placental abruption.

¶ 9 Dr. Knecht prescribed tocolytic drugs for Mrs. Nealis to stop her contractions. She was given the maximum permissible dosage, but labor continued. Dr. Knecht then consulted Dr. Mary Wren, the resident physician in charge of labor and delivery at Oklahoma Memorial Hospital ("OMH") in Oklahoma City. Initially, Dr. Wren recommended transferring Mrs. Nealis to OMH, but after consulting Dr. Fishburne, the attending physician,³ the recommendation to transfer was rescinded. Based on the information provided by Dr. Knecht, which included the ultrasound finding of gestational age but not the gestational age based on menstrual history, Drs. Wren and Fishburne concluded that the Nealis' s unborn child was not viable and that OMH could offer no treatment not already being offered by Dr. Knecht in Perry. Furthermore, the transfer itself posed a risk of hemorrhage to Mrs. Nealis. Accordingly, the transfer plan was abandoned.

¶ 10 Dr. Wren also recommended to Dr. Knecht that he administer pain medication. Dr. Knecht prescribed Demerol despite its effect of suppressing respiration in newborns. He hoped that the Demerol might permit sufficient relaxation to arrest the premature labor. A fetal heart monitor was removed, but fetal heart tones continued to be monitored by the nurses every twenty minutes.⁴ If labor did not cease and the child was delivered, it was to be treated as a 20-21 week old fetus in accordance with the ultrasound findings, and no attempt to resuscitate it was to be made.

¶ 11 Labor did not cease, and the Nealis baby emerged from the womb at 3:20 a.m. on 26 November 1991. Dr. Knecht was not present. The delivery occurred very suddenly, and only the nurses were in attendance.

¶ 12 Mrs. Nealis testified that the baby appeared small, but normal and that its skin color was pink. The umbilical cord was clamped. The baby's airways were not suctioned and Narcon, the antidote to Demerol, was not administered. One of the nurses in attendance at the time of delivery testified that the baby made some gasping respirations before it was rushed to the nursery. The baby's birth weight and length were later recorded as 347 grams and ten inches, respectively. Its Apgar scores, measurements of a baby's respiratory, circulatory, and motor function, were all zero.⁵ Its eyes were still fused. Dr. Knecht, who was also the county medical examiner, recorded the birth as a still birth. According to the doctor, he originally gave the family a choice of a funeral or laboratory disposal of the child's remains, but after speaking to the funeral home director, informed the family that burial was recommended. According to Mrs. Nealis's mother, Dr. Knecht initially offered to dispose of the baby's remains, but later told the family the baby's remains would have to go to a funeral home because the baby was bigger than anticipated.

¶ 13 Mr. and Mrs. Nealis brought suit against all three physicians. In their first claim, pressed against Drs. Baird and Hartwig only, plaintiffs alleged that the prenatal care rendered by the two physicians was negligent, causing each plaintiff personal injuries for which damages were sought. Plaintiffs advanced a second claim against Drs. Baird, Hartwig and Knecht for the wrongful death of their son, Matthew Nealis, alleging that negligent acts and omissions of all three physicians contributed to Matthew's early birth and resulting death. The case was tried to a jury in September 1996, and a verdict for defendants was returned on both claims. Mr. and Mrs. Nealis appealed.

¶ 14 The Court of Civil Appeals affirmed the judgment in...