Roberts v. Tardif

• Decision Date: 25 July 1980
• Parties: Cecile ROBERTS et al. v. Lionel TARDIF et al.
• Court: Maine Supreme Court

Page 444

417 A.2d 444

18 A.L.R.4th 589

Cecile ROBERTS et al. v. Lionel TARDIF et al.

Supreme Judicial Court of Maine.

Argued Jan. 10, 1980.

Decided July 25, 1980.

Lipman, Parks & Livingston, David M. Lipman (orally), John M. Parks, Sumner H. Lipman, Augusta, for plaintiffs.

Hunt, Thompson & Bowie, M. Roberts Hunt (orally), James M. Bowie, Portland, for defendants.

Before WERNICK, GODFREY and GLASSMAN, JJ., and DUFRESNE and DELAHANTY, A. R. JJ.

GODFREY, Justice.

Dr. Tardif appeals from a judgment of the Superior Court entered on a jury verdict finding him liable for medical malpractice resulting in injury to the plaintiffs. We address the following issues raised by the appeal: (1) whether the trial justice erred in giving an "unavoidable accident" instruction in the course of charging the jury; (2) whether certain hearsay testimony based on an x-ray report was properly elicited from an expert medical witness on direct examination; (3) whether the trial court erred in refusing to refer specifically to a community standard in defining the standard of care applicable to the obstetrical treatment of Mrs. Roberts; and (4) whether the evidence supported the court's instructions on certain elements of damage.

The plaintiffs are Cecile and Bernard Roberts, suing individually and as parents of Susan Roberts, an infant. The defendant-appellant is a specialist in obstetrics and gynecology, practicing in Lewiston, Maine. ¹ The injury is a partial paralysis of Susan's left arm alleged to have been caused by the defendant's negligent treatment of Cecile Roberts before and during delivery. We sustain the appeal, vacate the judgment, and remand the case to the Superior Court.

Evidence was admitted at trial from which the jury could have rationally inferred the following facts: Cecile Roberts gave birth to Susan Roberts on December 13, 1973, at the St. Mary's General Hospital in Lewiston, Maine. Defendant Dr. Lionel Tardif was the mother's obstetrician during her pregnancy and delivery.

Over objection, the trial court permitted the plaintiffs' expert witness, Dr. Cibley, to give testimony based on what appeared to be a copy of a report of x-ray pelvimetry taken at another hospital in 1967 during an earlier pregnancy of Mrs. Roberts under the care of a different obstetrician. That report contained references to "prominent spines" and "low-normal mid-pelvic diameter". Dr. Cibley testified that a careful obstetrician who saw such references would have been alerted to possible difficulties in vaginal delivery.

Mrs. Roberts's earlier baby, weighing six pounds thirteen ounces, had been delivered vaginally, without induction, after six to eight hours of labor. Mrs. Roberts told Dr. Tardif during her pregnancy in 1973 that she felt very large and asked whether she might be having twins. After checking, he assured her that there was only one heartbeat and that many expectant mothers felt large. She testified that she told him an x-ray had been taken during her 1967 pregnancy. Dr. Tardif did not see the record of x-ray pelvimetry made during that earlier pregnancy, and he testified that he did not remember Mrs. Roberts's telling him of its existence.

Dr. Tardif planned a normal vaginal delivery. He did not himself obtain x-ray pelvimetry, which would have yielded some evidence that the baby was going to be large but would have entailed certain other, different risks of its own. In fact, the baby proved to be unusually large: eleven pounds, two ounces.

Dr. Tardif, with Mrs. Roberts's consent, induced labor by use of a drug, pitocin, which she took orally in the form of three or four pills. Mrs. Roberts said she wanted some sort of anaesthetic during the birth because she did not want to be in pain. With her consent, when labor began, Dr. Tardif ordered a spinal anaesthetic as the most effective means of assuring complete disappearance of pain. The spinal anaesthetic prevented Mrs. Roberts from pushing with her abdominal muscles but did not inhibit her uterine contractions. When the baby's head reached the vulva, Dr. Tardif used midforceps and two nurses put pressure with their arms upon Mrs. Robert's abdomen in order to bring the baby's head out. After the baby's head had emerged, the baby's left shoulder became caught on the pubic symphysis, and Dr. Tardif had to rotate its shoulders manually so that the posterior shoulder was delivered first and the rest of the baby followed.

Susan was born with a limp left arm. Dr. Tardif told Mrs. Roberts that he had pinched a nerve. Although he told her the arm would take care of itself, at the time of trial the child did not have full normal use of the arm, which was about half an inch shorter than the right arm.

Mrs. Roberts did not return to work but stayed home to do exercises with the baby. The arm improved, but Susan cannot lift her left arm more than eighty degrees from her body. The condition may improve or stay the same but will not get worse. Probably she will never fully recover and have the full use of her shoulder. The one-half inch discrepancy in the length of her left arm may or may not increase as she grows.

In the first count of their complaint, the plaintiffs claimed that Dr. Tardif treated Mrs. Roberts negligently by not being aware of the baby's size and the mother's "peculiar medical problems" encountered during her delivery. That count sought damages for Susan's past and future medical expenses and for the parents' past and future earnings lost while caring for Susan. A second count alleged Susan's permanent impairment and sought damages for her reduced earning capacity, past and future pain and suffering, and future medical bills.

At trial, the plaintiffs called as their chief medical witness Dr. Leonard Cibley, an experienced obstetrician and gynecologist from Waltham, Massachusetts. In effect, Dr. Cibley testified that Dr. Tardif had been negligent in failing to ascertain the size of the baby, in inducing labor with buccal pitocin, in using a spinal anaesthetic, and in using forceps. The defendant called Dr. Kenneth Doil of Portland, who testified that the treatment had been proper. The jury returned a verdict of $40,000 for Susan Roberts, $5,000 for the mother and $200 for the father. The court denied defendant's motion for a directed verdict made at the close of all the evidence, denied his motion for judgment notwithstanding the verdict, and entered judgment according to the jury's award.

I. The "Unavoidable Accident" Instruction.

The defendant objected at trial to the so-called "unavoidable accident" instruction which the trial justice gave in the course of his charge to the jury. The critical part of the charge was as follows:

A physician or surgeon is not bound to use any particular method for treatment or operation. When physicians or surgeons of ordinary skill and learning recognize several methods of treatment as proper, the defendant may adopt any of such methods but that some other method of treatment existed or that some other physician or surgeon might have used or advised another in a different method does not of itself establish negligence or improper treatment by the defendant.

An action to recover damages for malpractice is based on the claim that the doctor named as defendant was negligent. That is, that he failed to exercise reasonable skill or care in his professional capacity, or failed to use his best judgment, and that his negligence was the proximate cause of the plaintiff's damages. In such an action plaintiff has the duty to prove by a preponderance of the evidence that the defendant in delivery of the baby failed to use reasonable care or skill, or failed to use his best judgment, and that defendant's such failure was the proximate cause of plaintiff's injuries and damage. However, in rendering medical services to a patient, a doctor does not impliedly warrant or guarantee the success of his treatment or operation sometimes called a good result. Nor does he undertake to exercise the highest possible skill or care, or the best possible judgment.

The doctor, does, on the other hand, impliedly warrant that he possesses and will exercise such professional skill and learning as reasonable, ordinarily possessed by doctors under similar or like condition, and that he will use his best judgment.

An accident is an incident that could not have been reasonably foreseen, anticipated prevented or provided against. So that in this case if you find that it was purely an accident, the defendant is not liable.

On the other hand if you find that the injury to the plaintiff could have been reasonably foreseen, or anticipated, or could have been prevented or provided against, then it is not an accident but is negligence in failing to prevent or provide against the happening of the injury. ²

The defendant argues that the quoted instructions are inconsistent and confusing. First they charge that where alternative acceptable procedures exist for treatment of a given condition, a doctor may choose one procedure without liability for resulting accidental injury even if another doctor might have chosen another acceptable procedure. However, the last paragraph seems to direct a finding of liability if the injury was "preventable", seemingly with the implication that even though the doctor competently applied an acceptable course of treatment, he was liable for an injury that he could have reasonably foreseen as possible under the chosen course of treatment if another course of treatment would probably have avoided that injury. In the circumstances of this case, it was reversible error to give this instruction.

In George v. Guerette, Me., 306 A.2d 138 (1973), we reversed a verdict and judgment for the defendants because the trial court had used the "unavoidable accident instruction" in its charge to the jury. The language of the instruction in George was almost verbatim the same as the language in the last two paragraphs of the quoted portion...