Pringle v. Rapaport

• Decision Date: 31 August 2009
• Docket Number: No. 173 WDA 2007,173 WDA 2007
• Citation: 980 A.2d 159,2009 PA Super 171
• Parties: Dennis PRINGLE and Christine A. Pringle, in their own right as parents and natural guardians of Austin Pringle, a minor, Appellants v. Adolfo RAPAPORT, D.O. and Adolfo Rapaport, D.O., P.C., Appellees.
• Court: Pennsylvania Superior Court

980 A.2d 159

2009 PA Super 171

Dennis PRINGLE and Christine A. Pringle, in their own right as parents and natural guardians of Austin Pringle, a minor, Appellants v. Adolfo RAPAPORT, D.O. and Adolfo Rapaport, D.O., P.C., Appellees.

No. 173 WDA 2007

Superior Court of Pennsylvania.

Argued September 4, 2008.

Filed August 31, 2009.

Douglas L. Price, Pittsburgh, for appellants.

Bernard R. Rizza and John W. Jordan IV, Pittsburgh, for appellee.

BEFORE: FORD ELLIOTT, P.J., STEVENS, MUSMANNO, ORIE MELVIN, LALLY-GREEN^*, KLEIN, GANTMAN, PANELLA and DONOHUE, JJ.

OPINION BY DONOHUE, J.:

¶ 1 Dennis Pringle and Christine Pringle (collectively, "the Pringles"), in their own right as parents and natural guardians of their son Austin Pringle ("Austin"), appeal from the judgment entered following a jury verdict in a medical malpractice case in favor of appellees, Adolfo Rapaport, D.O., and Adolfo Rapaport, D.O., P.C. (collectively, "Dr.Rapaport").¹ The Pringles contend that the trial court erred, inter alia, in including an "error of judgment" instruction during the charge to the jury at the trial of their medical malpractice action against Dr. Rapaport. After an exhaustive review of decisional law, we conclude that the Supreme Court of Pennsylvania has never addressed the appropriateness of this charge, and that the decisions of panels of this Court are irreconcilable. Thus, following our careful review, we conclude that the "error of judgment" instruction should not be given in medical malpractice actions, as it does not inform jurors on the applicable standard of care and instead tends only to confuse, rather than clarify, the issues the jury must decide. We thus reverse and remand for a new trial.

¶ 2 On July 31, 2002, Dr. Rapaport delivered Mrs. Pringle's second child, Austin. N.T., 6/26/06, at 120. Austin's birth was complicated because his shoulder was stuck behind his mother's pubic bone, a condition known as shoulder dystocia. Id. at 103. During Austin's delivery, Dr. Rapaport suspected shoulder dystocia when he observed Austin's head deliver but then retract back into the birth canal, a tell-tale sign of the condition. N.T., 6/28/06, at 109. To determine whether he was dealing with shoulder dystocia, Dr. Rapaport placed a hand on Austin's head and applied traction to see whether the shoulder would move. Id. at 110-11.

¶ 3 When Austin's shoulder did not move, Dr. Rapaport engaged three maneuvers to remedy the situation. First, Rapaport tried the "McRoberts maneuver," which involved Mrs. Pringle's legs being drawn up toward her shoulders while Dr. Rapaport placed his hands on Austin's head and applied traction in an effort to free Austin's shoulder. Id. at 114. Because this did not remedy the situation, Dr. Rapaport tried a second technique, the application of suprapubic pressure to Mrs. Pringle's abdomen, again while applying traction to Austin's head. Id. at 115, 118. When this resulted in no progress, Dr. Rapaport engaged a third maneuver, a "corkscrew procedure," that involved a manual turning of Austin's shoulders. This successfully led to Austin's delivery. Id. at 121.

¶ 4 Upon delivery, Austin's right arm was limp. Id. at 127. It was subsequently determined that during delivery, multiple nerves in Austin's neck were torn apart, causing an injury to the brachial plexus, which is the web of tissue and nerves located in that area. Brachial plexus injuries involve the stretching or tearing to some or all of the five nerves located in the neck, which are referred to as C-5, C-6, C-7, C-8 and T-1. N.T., 6/26/06, at 108. Most commonly with these injuries, the two highest nerves, C-5 and C-6, are injured. Id. at 109. C-7 and C-8 are much less frequently injured. Id. In Austin's case, all five nerves were injured; most drastically, C-5 was ruptured, or torn apart, and C-6, C-7, and C-8 had been ripped from his spine, or avulsed. Id. at 130. Although T-1 was not ruptured or avulsed, it was injured. Id. at 111. This brachial plexus injury caused the paralysis of Austin's right arm. Brachial plexus injuries are uncommon occurrences and an injury as severe as Austin's is extremely rare. Id.

¶ 5 The Pringles filed an action against Dr. Rapaport, alleging that he was negligent by using excessive force on Austin's head during delivery and that the excessive force caused the brachial plexus injury and resultant paralysis. Appellant's Brief at 5. At trial, the expert testimony presented by both sides agreed that shoulder dystocia is an emergency situation. The expert witnesses also agreed that Dr. Rapaport used the proper procedures in the proper sequence to resolve the shoulder dystocia in this case—the McRoberts maneuver first, suprapubic pressure second, and the "corkscrew procedure" third. N.T., 6/26/06, at 112-14; N.T., 6/28/06, at 40-43.

¶ 6 The expert witnesses disagreed, however, as to whether Dr. Rapaport applied excessive force when performing the corkscrew procedure. For the Pringles, Dr. Joseph Finkelstein ("Dr.Finkelstein") testified that the force applied by Dr. Rapaport was excessive because an injury as severe as the one suffered by Austin, in which nerves were ruptured and torn, does not occur from "the normal forces of labor and requires an excessive traction to be applied beyond [what] the baby can handle." N.T., 6/26/06, at 132. Dr. Finkelstein opined that this injury does not result absent the negligent application of force by the delivering physician. Id. at 133. He further testified that there is no way to quantify at what point the force becomes excessive, but that determination of the proper amount of force is a skill learned through hands-on training. Id. at 115, 144.

¶ 7 Rapaport's expert, Dr. Tom Benedetti ("Dr.Benedetti") agreed that the proper amount of force to apply in a corkscrew procedure is a skill learned through training and experience, and that the amount of force Dr. Rapaport exerted on Austin was excessive and caused the injury. N.T., 6/28/06, at 21, 37. Dr. Benedetti opined, however, that in his professional opinion Dr. Rapaport's application of excessive force was not negligent: "[T]he word excessive is, to me, not the operative word. The operative word is negligent, because I think that the traction was excessive in that it was more than the baby's brachial plexus could tolerate; but it was not negligent, because I could find no evidence that it was any more than what was usually done in normal deliveries...." Id. It was Dr. Benedetti's opinion that brachial plexus injuries may still occur even when proper (non-negligent) care is provided. N.T., 6/28/06, at 46.

¶ 8 Dr. Rapaport similarly testified that the amount of force that should be applied in performing the corkscrew procedure is a skill "that's learned over time from being taught with other people's hands on yours as you do deliveries.... And it all comes down to a tactile sense as you're applying traction ... and your experience in what you've done[.]" Id. at 82. He stated that he was trained both as to the amount of force to be applied when dealing with shoulder dystocia and as to how to minimize the amount of force applied to the infant's head in such a situation. Id. at 89-90. Dr. Rapaport testified that Austin presented the most severe case of shoulder dystocia that he had ever encountered and that he applied the same amount of traction to Austin as he does in every other delivery. Id. at 150. Although he agreed that the application of excessive force can cause a brachial plexus injury, he denied that he applied excessive force in Austin's case. Id. at 141, 150-51. To the contrary, Dr. Rapaport insisted that his actions saved Austin's life. Id.

¶ 9 Accordingly, the expert witnesses and Dr. Rapaport all agreed that the "corkscrew procedure" is an accepted method for relieving shoulder dystocia, that Dr. Rapaport decision to utilize that procedure was appropriate under the circumstances presented, and that the proper amount of force to apply when utilizing the procedure is a skill that is learned and refined through training and practice. The only issue of dispute was whether Dr. Rapaport executed the corkscrew procedure in a negligent manner.

¶ 10 At the close of the evidence, the trial court charged the jury, in relevant part, as follows:

Generally, folks, negligence can be defined as follows: Negligence is otherwise known as carelessness, and it is the absence of ordinary care which a reasonably prudent person would exercise in the circumstances here presented. Negligent conduct may consist of an act or an omission to act where there is a duty to do so. In other words, negligence is the failure to do something which a reasonably careful person would do or the doing of something which a reasonably careful person would not do in light of all of the surrounding circumstances that are established by the evidence and the testimony in this case. So folks, you must determine how a reasonably careful person would have acted under the circumstances presented here.

What's ordinary care? Ordinary care is the care that a reasonably careful person would use under circumstances presented in this case, because, folks, it's the duty of every person, all of us, to use ordinary care not only for our own safety in the protection of our own property but also to avoid injuries to others.

What constitutes ordinary care varies according to the circumstances and conditions of each case, and the amount of care required by the law must be in keeping with the degree of danger that's involved in the circumstances. All right. Those are general definition of negligence and ordinary care. Now let's talk about specific negligence in regard to physicians, or what can be referred to as professional negligence.

Professional negligence consists of a negligent, careless or unskilled performance by a physician of the duties imposed on him by his professional relationship with his patients. So folks, it's also negligence when a physician shows...