Reilly v. Straub

• Decision Date: 29 August 1979
• Docket Number: No. 62208,62208
• Citation: 282 N.W.2d 688
• Parties: James R. REILLY, a Minor, by James P. Reilly, his father and next friend, and James P. Reilly, Individually, Appellees, v. J. J. STRAUB, M.D., Appellant.
• Court: Iowa Supreme Court

Page 688

282 N.W.2d 688

James R. REILLY, a Minor, by James P. Reilly, his father and next friend, and James P. Reilly, Individually, Appellees, v. J. J. STRAUB, M.D., Appellant.

No. 62208.

Supreme Court of Iowa.

Aug. 29, 1979.

Rehearing Denied Oct. 11, 1979.

William C. Fuerste of Fuerste, Carew, Coyle, Juergens & Sudmeier, Dubuque, for appellant.

Edward J. Gallagher, Jr. of Gallagher, Martin, Keith & Langlas, Waterloo, for appellees.

Considered by REYNOLDSON, C. J., and LeGRAND, HARRIS, ALLBEE and LARSON, JJ.

REYNOLDSON, Chief Justice.

The infant plaintiff James R. Reilly brought this malpractice action for damages arising out of a birth injury to his right arm against the defendant obstetrician J. J. Straub. The jury returned a $125,000 plaintiff's verdict and from judgment thereon defendant appeals. We affirm on condition.

June 11, 1972, defendant served as obstetrician at plaintiff's birth. Plaintiff weighed ten pounds fourteen ounces. During delivery defendant encountered shoulder dystocia, a complication in which the child's shoulders are so wide they have difficulty in passing naturally through the mother's pelvic opening.

Plaintiff's petition was filed by his father as next friend. In the first amended count, plaintiff alleged defendant was negligent in, among other things (1) pulling on plaintiff's right arm to remedy the shoulder dystocia, (2) using undue force to accomplish delivery, and (3) failing to perform a cesarean section when he knew or should have known plaintiff "was an excessive sized infant." In another count plaintiff relied on the res ipsa loquitur doctrine: that defendant did not exercise due care before and during plaintiff's delivery, that plaintiff was at all material times under the exclusive control of defendant, and that plaintiff's injuries in the ordinary course of events would not have occurred without negligence on defendant's part.

Plaintiff's mother was twenty-nine years old and weighed over two hundred pounds when he was born. She had previously given uneventful birth to an eight-pound six-ounce girl on July 6, 1968, and an eight-pound twelve-ounce boy on September 24, 1969. Urine tests for diabetes had always been negative. Although he knew of diabetes in Mrs. Reilly's family and knew a diabetic mother was apt to produce an excessive-sized infant, defendant did not run a time-consuming and expensive, but more conclusive, glucose tolerance test or blood sugar test on Mrs. Reilly. Several months later a test established diabetes. On deposition defendant opined Mrs. Reilly quite possibly was diabetic during plaintiff's last trimester.

Labor before plaintiff's birth was neither extended nor eventful. The birth progressed normally and the head was delivered. But because of plaintiff's size his anterior, right shoulder became lodged behind the pubic symphysis the arching bone structure tying the pelvic structure together in front. Normal delivery ceased.

Defendant testified he then performed the "Praug" maneuver, applying downward pressure on plaintiff's head in an effort to glide the shoulder beneath the symphysis. He then unsuccessfully rotated the shoulders, attempting to find a more helpful diagonal diameter. During at least part of this time, two attending nurses applied fundal pressure by pushing on Mrs. Reilly's abdomen. Defendant then reached into the birth canal and extracted the left arm and shoulder. This delivery of the left shoulder caused the right shoulder to drop from behind the symphysis and delivery was completed.

Defendant clamped and severed the umbilical cord and circumcised plaintiff. He immediately noticed the right arm was flaccid. Another doctor later arranged for plaintiff to be examined at the Mayo Clinic, Rochester, Minnesota. Doctors there diagnosed plaintiff's condition as severe injury to the brachial plexus of the right arm, or Erb-Duchenne or Klumpke's palsy, constituting traumatic nerve damage to the cervical area of the spinal column where nerves from the head and arm enter the spinal cord. Despite various surgical repairs and splints at Mayo's, defendant does not seriously dispute that plaintiff's arm is deformed, unattractive, and eighty-five percent permanently disabled.

Plaintiff's mother testified she sensed an interruption in the natural delivery process, but was aware of no tension, excitement or flurry in the delivery room. When she asked defendant later in the day about plaintiff's limp arm, bruised face and reddened eyes, he told her plaintiff would be okay in three or four months. Plaintiff's father testified defendant told him he had pulled on the flaccid arm during delivery, but that it would recover in several months.

The orthopedic surgeon who treated plaintiff at Mayo's was of the opinion the brachial plexus injury was birth related. He also testified neither the incident of brachial plexus injury to plaintiff nor the subsequent diagnosis of Mrs. Reilly as diabetic indicated defendant did anything wrong.

Plaintiff submitted portions of defendant's deposition. The latter attributed plaintiff's facial bruises to manual pressure on the head. He agreed with the brachial plexus diagnosis, attributing the injury to either intrauterine pressure or manual pressure on the head. When describing his efforts to rotate the shoulders he stated he pushed down on plaintiff's head and twisted it with his other hand. He doubted that he told Mr. Reilly he pulled on the right arm.

Dr. Clarence Davis, professor of obstetrics and gynecology on leave of absence from Yale University testified for plaintiff. He described various methods for remedying shoulder dystocia including the three utilized by defendant. He emphasized the universal practice taught and found in all medical literature was to avoid the excessive head traction which causes brachial plexus palsy. He cautioned that fundal pressure, unless accompanied by downward pressure on the symphysis, was counter productive. He estimated a physician has five to seven minutes to remedy shoulder dystocia without danger of incurring injury to the child from lack of oxygen. He had no reason to believe some infants were more subject to brachial plexus injury than others. Responding to a hypothetical question, he was of the opinion the injury would not have occurred but for excessive head traction and in this case could not have been caused by intrauterine pressure. Pulling on the right arm would not be good medical practice "because it would be almost impossible to get to the right arm in this obstetrical situation and pulling on the arm, per se, on either arm is bad practice." A certain amount of head traction is used in most deliveries, but brachial plexus injury is rare, occurring only when "you pull on the head enough to extend the plexus." On cross-examination Dr. Davis stated any brachial plexus injury suffered after a vertex (head first) delivery was negligently caused. He was of the opinion defendant had little difficulty in delivering the left arm and shoulder because there were no lacerations incurred by the mother or plaintiff and the mother lost little blood. He concluded "there was plenty of room." The fact plaintiff was circumcised indicated "the doctor did not believe the baby was in serious shape."

Plaintiff also offered the testimony of Dr. Abraham F. Lash, an Illinois obstetrician and gynecologist, former professor at Northwestern University, current senior consultant at Cook County Hospital, and author of about one hundred published medical articles. He emphasized anticipating shoulder dystocia by noting previous births of large infants, testing for diabetes in an obese mother, and by estimating the child's size. He thought it was likely the mother was diabetic at the time of plaintiff's birth. He opined defendant should have taken x-rays of Mrs. Reilly's abdomen and a blood sugar test for diabetes. He could not conceive that intrauterine pressure caused plaintiff's brachial plexus injury. Responding to a hypothetical question, he opined the injury was caused by defendant's undue pressure on the nerve plexus. He observed that a twist of the infant's head to abstract a baby can dislocate vertebrae as well as injure nerves. He indicated the fundal pressure kept plaintiff from helpful rotation in the birth canal. Severity of the injury to the brachial plexus "depends on how they are using that head; pressing on it or pulling on it or twisting it may be factors which produce this injury." The force can be measured by the result occurring subsequent to it. Dr. Lash observed brachial plexus injuries occur perhaps once in two thousand deliveries and it was unusual to sustain brachial plexus injury with a vertex presentation.

Defendant submitted the testimony of five physicians, four of them from Dubuque. Two of the latter testified a brachial plexus injury does not, per se, imply negligence on the part of the obstetrician. Dr. Schmitz, a Dubuque obstetrician, responded to a hypothetical question which required him to assume the hypothetical obstetrician attempted to secure release of the infant's right shoulder "by Gently depressing the emerged head downward with his right hand, holding the fetal head from below with his left hand, accompanied by fundal pressure by the nurses." (Emphasis added.) Dr. Schmitz then opined the treatment was proper. On cross-examination he disagreed with but acknowledged authority relating the severity of brachial plexus injury to the amount of traction put on the infant's head, but agreed the injury would occur more often with severe traction on the head. He agreed twisting the infant's head was not good obstetrical practice.

Dr. Bonaldi, another Dubuque obstetrician, testified that the presence of brachial plexus injury in a newborn infant does not, in and of itself, establish the attending obstetrician was negligent. Responding to the same hypothetical question submitted to Dr. Schmitz he agreed with the hypothetical obstetrician's...