Rutherford v. Zearfoss, 781364

• Decision Date: 26 November 1980
• Docket Number: No. 781364,781364
• Citation: 272 S.E.2d 225,221 Va. 685
• Parties: Matthew V. RUTHERFORD, by his mother and next friend, Greta Rutherford v. John ZEARFOSS. Record
• Court: Virginia Supreme Court

Page 225

272 S.E.2d 225

221 Va. 685

Matthew V. RUTHERFORD, by his mother and next friend, Greta Rutherford v. John ZEARFOSS.

Record No. 781364.

Supreme Court of Virginia.

Nov. 26, 1980.

Jack S. Rhoades, Alexandria (J. Ronald Lynch; Howard, Stevens, Lynch, Cake &amp Howard, P. C., Alexandria, on briefs), for appellant.

R. Harrison Pledger, Jr., McLean, for appellee.

Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, POFF, COMPTON and THOMPSON, JJ.

THOMPSON, Justice.

This appeal involves a medical malpractice claim in which the jury returned a verdict for the plaintiff in the amount of $1.5 million. The trial court set aside the verdict as excessive and granted a new trial on all issues. At the second trial final judgment was entered for the defendant. This appeal is limited to the consideration of two issues: (1) Was the jury verdict in the amount of $1.5 million excessive? and (2) if it was, should the trial court have granted a new trial on liability and damages, or just on damages alone?

Matthew V. Rutherford, by his mother and next friend, Greta Rutherford, brought an action against Dr. John Zearfoss, an Alexandria physician specializing in obstetrics and gynecology. Matthew alleged, inter alia, that on May 17, 1973, Dr. Zearfoss negligently delivered him and therefore caused him to be afflicted with cerebral palsy, which resulted in his permanently crippled condition.

On May 17, 1973, around 2:00 a. m., Mrs. Rutherford, who was approximately nine months pregnant, was admitted to Alexandria Hospital with mild labor contractions after a spontaneous rupture of her membranes several hours earlier and secretion of amniotic fluid.

Dr. Zearfoss, Mrs. Rutherford's obstetrician, examined Mrs. Rutherford at 6:15 a. m. His examination revealed that the baby's head had not descended into the pelvic canal and that Mrs. Rutherford was having contractions every five minutes. Dr. Zearfoss administered an oxytocic drug called Tocosamine which is used to stimulate the uterus to contract more powerfully, thus forcing the baby's head down through the pelvic canal.

When Dr. Zearfoss examined Mrs. Rutherford again at 7:00 a. m. she was having mild to moderate contractions every three minutes, but the baby's head had still not descended through the pelvic opening. Dr. Zearfoss ordered another injection of Tocosamine. At 7:45 a. m. moderately hard contractions were occurring two to three minutes apart. The fetal heart rate was 160 beats per minute. ^* An attending nurse made a recorded observation of the presence of meconium, which is a bowel movement passed by the fetus through the vagina and indicates a possible oxygen deprivation in the baby's brain in a baby presenting head-first, as was Matthew.

At 9:45 a. m. Mrs. Rutherford's condition had not changed. At 10:15 a. m. Dr. Zearfoss ordered another injection of Tocosamine. At 10:20 a. m. Mrs. Rutherford was taken to the delivery room with a completely dilated cervix. At 10:45 a. m. Dr. Zearfoss administered intravenously another oxytocic medication, Syntocinon.

At sometime before 11:25 a. m. Dr. Zearfoss attached an instrument known as a vacuum extractor to Matthew's head and brought him down into his mother's vagina. Dr. Zearfoss then removed the vacuum extractor, applied forceps to the head, and delivered Matthew.

Following delivery Matthew was in a very depressed state. On an "APGAR" scoring system that awards points to various vital signs of a baby at one minute after birth, with ten as the highest rating and zero, or death, the lowest, Matthew registered a score of one. He had marked molding of the head and, while still in the hospital, had a number of seizures.

In the summer of 1974, Matthew was diagnosed as having spastic quadriparesis and ataxic cerebral palsy. Due to deficiency in muscle tone, he had paralysis in all four of his limbs and had abnormal reflex patterns. Testimony at trial revealed that when he was three years seven months old, Matthew's motor skills were at a level of less than twelve months, but he was above average in intellect, his adaptive behavior approaching that of a five year old. In an essentially undisputed prognosis, Matthew's cerebral palsy was described to be moderate to severe. Testimony also revealed that he may learn to walk, but it is improbable that he will ever run, climb a tree, throw a ball, swim, or play a musical instrument; that he cannot now feed himself; and that he may eventually be able to drive a car that is equipped with special mechanisms. All these deficiencies were attributed to Matthew's cerebral palsy which he will always have.

Evidence submitted at trial revealed that Dr. Zearfoss had, ten years previously, delivered Mrs. Rutherford's third child. Because that child was large, weighing approximately nine pounds three ounces at birth, the shoulders were stuck during delivery, and the extraction of the infant was difficult. As a consequence of delivery, that child suffered paralysis of one of its arms. Approximately a week before Matthew's delivery, Dr. Zearfoss noted on Mrs. Rutherford's chart that Matthew's estimated weight was nine to ten pounds. Therefore, Dr. Zearfoss knew that Matthew would be almost as large as or larger than Mrs. Rutherford's third child.

Each litigant presented expert witness testimony. Dr. John V. Kelly, Jr., who testified in behalf of Matthew Rutherford, stated that Dr. Zearfoss, at various stages in Matthew's delivery, violated the standard of medical...