Reilly v. US

• Decision Date: 28 July 1987
• Docket Number: Civ. A. No. 85-0748 P.
• Citation: 665 F. Supp. 976
• Parties: Donna REILLY, Peter Reilly and Heather Reilly, p.p.a. Donna Reilly and Peter Reilly v. UNITED STATES of America.
• Court: U.S. District Court — District of Rhode Island

665 F. Supp. 976

Donna REILLY, Peter Reilly and Heather Reilly, p.p.a. Donna Reilly and Peter Reilly v.UNITED STATES of America.

Civ. A. No. 85-0748 P.

United States District Court, D. Rhode Island.

July 28, 1987.

COPYRIGHT MATERIAL OMITTED

Mark S. Mandell, Providence, R.I., for plaintiffs.

Everett C. Sammartino, Asst. U.S. Atty., Dist. of R.I., Providence, R.I., for defendant.

OPINION AND ORDER

PETTINE, Senior District Judge.

This is a medical malpractice action under the Federal Tort Claims Act ("FTCA") brought by the plaintiffs, Donna and Peter Reilly, on behalf of themselves and their baby daughter, Heather.They allege that the defendant, acting by and through its attending obstetrician, failed to exercise a proper degree of care in the treatment of Donna Reilly during her labor and delivery of baby Heather, and that as a consequence Heather was born with a devastated brain.

Jurisdiction is vested in this Court pursuant to 28 U.S.C. § 2675 of the FTCA, 28 U.S.C. § 1346(b)and28U.S.C. § 1331.

I.FACTS

Heather is a helpless individual, "significantly delayed developmentally" and unable to see; she will never be able to walk, talk, feed or take care of herself in any way.

The events giving rise to this tragedy commenced on December 11, 1984.At the time, Peter Reilly was on duty with the United States Navy stationed in Newport, Rhode Island; his 22 year old expectant wife, Donna, was in active labor.At 3:35 p.m., she was admitted to the Newport Naval Hospital and placed in the charge of Lieutenant Commander Robert Farber, an obstetrician.

A clear understanding of the negligence issue requires a detailing of both the progression of the events leading up to the actual birth and the expert medical testimony interpreting these events.

The first dramatic incident occurred at 9:00 p.m. when a deep deceleration in fetal heart rate, which did not respond to therapy, was evidenced on the fetal monitor.The record shows that at the time the fetal heart rate began to decelerate, the mother had been in labor for more than six hours, the birth was progressing very slowly, the mother's cervix was not fully dilated and she had a reasonably large baby in the occiput posterior position (head facing up rather than down).All these signs screamed that the baby was being asphyxiated and that a caesarean section should have been performed without delay.Dr. Farber pressed for a vaginal birth instead of performing a caesarean section, which the plaintiffs' specialist Dr. Barry Schifrin testified was mandated.Transcript ("Tr.") of 11-18-86at 53, 99-100(Schifrin).It should be noted that Dr. Farber himself recognized this as shown by his own actions.He did, indeed, call and mobilize the operating room crew at approximately 9:00 p.m. with the specific intention of performing just such an operation but then abandoned the idea.

The seriousness of this omission was described by Dr. Schifrin:

Dr. Farber simply has no basis for optimism, just obstetrically, quite apart from the condition of the baby.He has no obstetrical reason to consider delivery imminent or if he is going to do it mechanically that it is going to be safe.He had no basis to assume that I can deliver this baby from below vaginally safely and quickly.

Tr. of 11-18-86at 103(Schifrin).

In addition to the foregoing negligent conduct, it was also established that Dr. Farber negligently tried to have Mrs. Reilly push before her cervix was fully dilated, Tr. of 11-18-86at 106, 113(Schifrin);Tr. of11-19-86at 31(Mrs. Reilly).In short, he prolonged Mrs. Reilly's labor in spite of the crisis at hand.Dr. Schifrin testified that "right under their eyes, that pattern ... progressively deteriorates and deteriorates,"id. at 108; it "bespeaks for an unequivocal episode of progressive, relentless asphyxiation of the baby right under their eyes."Id.

Exacerbating the situation, at about 10:15 p.m., Dr. Farber moved Mrs. Reilly to the operating room, after he had "inexplicably, beyond anything reasonable and logical," removed the electronic monitor, id. at 114.

I cannot possibly understand the sense of that no matter how fair I try to be ... in my own heart of hearts, there is no possible explanation that would justify that.

Id. at 116.

Dr. Schifrin explained that the removal of the monitor at that point was "absolutely" a deviation from the required standard of care

because they have had several episodes of fetal distress.They have ongoing deceleration.They have a deterioration of the pattern....

* * * * * * and it is inconceivable that they would not bring the monitor with them under these circumstances.

* * * * * *

It's going to tell them that other episodes of decelerations are occurring, the heart rate pattern is deteriorating with the rising baseline....

Id. at 124-25.

The need for the monitor in the delivery room was crucial.Had they not removed the monitor, they would have seen further dramatic deterioration and even then could have made a last, frantic effort to perform a caesarean that might have saved the baby.As Dr. Schifrin stated:

Reasonably it is yet recoverable and if it's not recoverable, if it is certainly not completely recoverable, it is almost certainly going to be a better outcome than what was eventuated in this case.This is a time related phenomenon in relationship to the asphyxia and it's an event-related phenomenon in relationship for the actual delivery itself.

Id. at 128.

In the operating room, Mrs. Reilly still did not respond; Dr. Farber, in his persistence for a vaginal birth, compounded his negligence by applying a vacuum and suction instrument to the baby's head.Though such a procedures may be medically acceptable in certain circumstances, here it was not because there was progressive asphyxiation "on a chronic, on a long term basis."As Dr. Schifrin explained:

On top of that, I must in all fairness add, the additional potential trauma ... of the delivery itself ... , which could explain a great part of this....We have an asphyxia episode, which in and of itself can explain all of the injury....On top of this we have what seems unequivocal evidence of trauma during delivery.You need no evidence of trauma to explain what happened here.But having explained what happened here on the basis of asphyxia, you then say was there potential, was there trauma visited on the baby on top of that and the answer is yes, unequivocally.

Id. at 132.

Dr. Schifrin's testimony was buttressed by another expert, Dr. Ashby Coopland, a Board Certified obstetrician, practicing at Bay State Medical Center.Dr. Coopland added that there was a further deviation from the required standard of care in that the defendant did not obtain an accurate tracing of Mrs. Reilly's uterine contractions.Dr. Coopland explained that the monitor was not accurately recording the contractions, which the defendant should have known were there.And yet he did nothing to correct this particularly bad situation, which was preventing him from receiving vital information.A remedy was readily available; Dr. Coopland said:

There are several things that we would try to do.We would adjust the external tocodynamometer ....If that didn't work, we would get ... another one.If the external would not work at all, then I think we would be — we would be forced to use an internal — internal pressure catheter.

Tr. of 11-24-86at 24(Coopland).

Capping the profusion of evidence establishing negligence, there is the attending doctor's own admission in a deposition taken on September 9, 1986 that a caesarean should have been performed at 9:15 p.m.:

Q.On December 11, 1984 would the standard of care of treating a patient such as Donna Reilly at 9:15 p.m. require delivery by caesarean section?

A. ... yes, it should have been done.

Plaintiffs' exhibit 22 at 54.

Though the defendant in no way disputes the foregoing — it did not offer a scintilla of evidence to debate liability or the nature and extent of the injuries suffered by the plaintiffs — it does make a feckless attack in its post-trial brief.For example, at page 46 of said brief, Dr. Schifrin is said to have testified that approximately

70% of the time healthy babies are born, although the fetal heart monitor was indicating ominous fetal stress.(Trans. 11/18, Pg. 156-157, 158; 159.)That Dr. Schifrin has seen heart rate patterns such as Heather's, and yet the baby was born normal and healthy (Trans. 11/18 162-163.) ... there are simply no guarantees in medicine even if you do everything right (Trans. 11/18—165).

Dr. Schifrin later deleted the word "ominous" and substituted the word "abnormal."

This argument is completely misplaced; Dr. Schifrin's testimony is cited entirely out of context.Viewed in the context of Dr. Schifrin's explanation, which the defendant omitted, the 70% statistic has no application to this case:

I believe the statistics that you're using are my own.That is the prediction of the heart rate pattern using no clinical information whatsoever ... it those statistics does not include the certain knowledge that the baby is asphyxiated.On the basis of the certain knowledge that the baby is asphyxiated, as in this case, I can say with considerable degree of medical probability, far, far in excess of fifty percent that what happened here is directly related to that outcome.And that the statistics which you are quoting represent ... a blind estimation of outcome — blind estimation of outcome based on no clinical information whatsoever, only based on the clinical interpretation of the heart rate pattern from which all other information has been removed.That is in this one sense, not real medicine, not the real world, and in this situation in which there is no question of the baby's asphyxia, on the basis of totally objective information, there can be no doubt about ... when this event brain damage happened.

Tr. of 11-18-86at 159-160(emphasis added).

There is nothing, simply...