Parrella v. Bowling
| Decision Date | 16 May 2002 |
| Docket Number | No. 2000-296-Appeal.,2000-296-Appeal. |
| Citation | 796 A.2d 1091 |
| Court | Rhode Island Supreme Court |
| Parties | Michael PARRELLA, Donna Ann Parrella, and Michael Anthony Parrella v. Dr. Kathleen Cote BOWLING and Women & Infants Hospital of Rhode Island. |
Present WILLIAMS, C.J., BOURCIER, and GOLDBERG, JJ.
Thomas Dickinson, Jeffrey B. Pine, Providence, for plaintiff.
Robert P. Dandau, David W. Carroll, Timothy P. Gallogly, Providence, for defendant.
In this medical malpractice and negligence action, the plaintiffs, Michael Parrella and Donna Ann Parrella, individually and as parents of the plaintiff Michael Anthony Parrella, a minor, appeal from the entry of Superior Court final judgments in favor of the defendants, Dr. Kathleen Cote Bowling and Women & Infants Hospital of Rhode Island.
For the reasons hereinafter set out, we deny their appeals and affirm the final judgments entered by the Superior Court.
In late April 1995, the plaintiff Donna Ann Parrella (Donna) was pregnant and under the medical care of the defendant, Dr. Kathleen Cote Bowling (Dr. Bowling), a medical doctor specializing in obstetrics and gynecology. At that time, Dr. Bowling had noted that Donna's pregnancy was nearing full term and that her in utero child, now the plaintiff, Michael Anthony Parrella (Michael Anthony), was relatively large, weighing almost nine pounds. Dr. Bowling was concerned that his shoulders might not be able to pass through Donna's pelvis.00585B
After Donna made a prenatal visit to Dr. Bowling's office on May 17, 1995, one of Dr. Bowling's medical associates scheduled her for induction five days later.
On May 21, 1995, Donna, having "broken her water," was admitted to Women & Infants Hospital of Rhode Island (hospital or Women & Infants). She was administered prostin gel to soften her cervix, and labor was induced beginning at approximately 8:00 the next morning.
Donna's labor progressed throughout the day on May 22nd, and Michael Anthony's heart rate was monitored by an external device used to detect the fetal heart rate from outside the mother. The plaintiffs contended at trial that on May 22, 1995, at about 3:40 p.m., Donna was in the hospital labor room, where Dr. Bowling was attempting to turn Michael Anthony to ease his passage through Donna's birth canal. In so attempting the movement, Dr. Bowling's clothing became soiled when Donna suddenly urinated. Dr. Bowling then left the labor room to change her soiled clothing. An attending labor room nurse remained with Donna. Nine minutes later, at 3:49 p.m., the attending labor nurse, Cheryl Haynes, observed that Donna was becoming very uncomfortable and "talking nonsense." Nurse Haynes then notified the hospital's evening secretary to page Dr. Bowling. In the meantime, Nurse Haynes had observed questionable reports from the external monitoring device that Dr. Bowling had used to monitor Michael Anthony's fetal heart rate during labor. Nurse Haynes again requested the nurse's evening secretary to page Dr. Bowling at 3:53 p.m. to have Dr. Bowling place an internal monitor that would more accurately measure Michael Anthony's fetal heart rate. There was no response from that page to Dr. Bowling. Nurse Haynes again at 3:57 p.m. and 4:02 p.m. attempted without success to have the evening secretary contact Dr. Bowling, who did however return to the labor room at 4:11 p.m. It later was discovered that the evening secretary had been paging Dr. Bowling on the wrong pager. Dr. Bowling on that day was carrying a pager other than her own00585B because she had left her regular pager at home. Although Dr. Bowling had given her substitute pager number to the hospital's day secretary upon her arrival at the hospital, the substitute pager number was not conveyed to the evening shift secretary or hospital staff when the shift changed at 3 p.m.
When Dr. Bowling did return to the labor room and was made aware of what had occurred in her absence, she proceeded to apply an internal lead to more accurately measure the fetal heart rate and next proceeded to perform an emergency "crash cesarean" section on Donna at either 4:18 p.m. or 4:23 p.m. to deliver Michael Anthony.1 Upon delivery, Michael Anthony was not breathing, had a low heart rate, and no reflexes, a condition determined to be hypoxic ischemic encephalopathy, brain damage resulting from a lack of oxygen. Michael Anthony later was diagnosed as suffering from cerebral palsy, a debilitating disease resulting from a lack of oxygen to his brain that had occurred at some point prior to his birth. All parties appear to agree that Michael Anthony's cerebral palsy condition has left him permanently and totally disabled, and that he remains at the level of an infant, unable to walk and speak and who must be fed through a tube inserted into his stomach. Because of his brain damage, he has little, if any, control of his legs and arm movements.
Michael Anthony's parents, for themselves and for Michael Anthony, filed suit on December 3, 1996, in the Providence County Superior Court, alleging that Dr. Bowling's delay in performing a cesarean section on Donna deprived Michael Anthony of vital oxygen and resulted in bringing about his cerebral palsy and brain damage. The plaintiffs also alleged that00585B the hospital was negligent in its supervision of Donna and in its ability to have communicated with Dr. Bowling. Specifically, the plaintiffs asserted that the hospital's staff negligently failed to pass on Dr. Bowling's correct pager number from one work shift to the next, and that negligence contributed to bringing about Michael Anthony's cerebral palsy.
Following a jury trial that extended over a four-week period in early 2000, and which the trial justice later labeled a "credibility battle among the experts," the jury on March 6, 2000 found that the plaintiffs had failed to prove that Dr. Bowling had been negligent in her care and delivery of Michael Anthony and returned a verdict in favor of the doctor on the plaintiffs' medical malpractice claim.
On the plaintiffs' negligence claim against Women & Infants, the jury found that the hospital had indeed been negligent in not furnishing Dr. Bowling's pager number to the evening shift secretary, but found that such negligence was not a proximate cause of the onset of Michael Anthony's pre-birth cerebral palsy and returned a verdict in favor of Women & Infants Hospital.
After their motions for a new trial were denied, on April 7, 2000, the plaintiffs timely filed their appeal to this Court. In their appeal, they advance two issues. First, they assert that the trial justice erred in precluding their trial counsel from cross-examining one of the defendants' medical expert witnesses about an out-of-court medical opinion expressed by a medical doctor, who although available to be called as a witness was not called to testify. Secondly, they contend that the trial justice erred in failing to give their requested instructions in accordance with our holding in Wilkinson v. Vesey, 110 R.I. 606, 295 A.2d 676 (1972), and thereby confused the trial jury, leading to the return of what they allege are inconsistent jury verdicts.00585B
At trial, the particular timing of the onset of Michael Anthony's debilitating cerebral palsy disease served as the undergirding for all the plaintiffs' claims. As correctly noted in their appellate brief, there appears to have been "no disagreement among the parties that Michael Anthony Parrella * * * suffers from cerebral palsy, a conditio n that resulted from the lack of oxygen to his brain that occurred some time prior to his delivery by emergency cesarean section." The trial jury was required to determine at what time that condition originated, and if any action, or lack of action, on the part of Dr. Bowling or the hospital precipitated its onset.
The plaintiffs' and the defendants' experts all appear to agree that Michael Anthony's cerebral palsy was the result of a "hypoxic event," meaning that at some time prior to his birth, the supply of oxygen to his brain was interrupted. The plaintiffs at trial attempted to prove that the "hypoxic event" occurred while Donna was in labor and under the control and care of Dr. Bowling. In attempting to satisfy that burden, the plaintiffs called Gerald I. Zatuchni, M.D., an Arizona physician, board certified in obstetrics and gynecology, who had practiced in his specialty for some thirty-five years. He testified that he had reviewed Donna's hospital records. From his review of those records he opined that the printouts from the external fetal heart monitor employed by Dr. Bowling during Donna's first hours of labor showed a decelerated fetal heart rate that should have concerned Dr. Bowling as early as 2:10 p.m., some two hours and eighteen minutes to two hours and twenty-three minutes before Michael Anthony was delivered. That "concern," opined Dr. Zatuchni, should have alerted Dr. Bowling to install an internal lead to more accurately measure the fetal heart rate, and she failed to do so even after further heart decelerations were noted at 2:20 p.m. and 2:40 p.m. He further opined that the 2:40 p.m. reading should have alerted Dr. Bowling that "something abnormal" was happening "with the oxygen00585B getting to the baby's brain." He testified that a cesarean section should have been performed sometime between 3 p.m. and 3:30 p.m. It was his opinion after reviewing the fetal heart monitoring strips that Michael Anthony suffered from a lack of oxygen during the last forty-five minutes or so before birth, and had he been delivered just one hour earlier, the "last 45 minutes or so" of lack of oxygen would have been avoided.
However, during cross-examination, Dr. Zatuchni admitted that no one was capable of determining when a neurological injury occurs simply by reviewing fetal heart monitor strips. The following trial colloquy during his cross-examination demonstrates the efficacy of...
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