Sowers v. Middletown Hosp., CA92-07-118

• Decision Date: 14 June 1993
• Docket Number: No. CA92-07-118,CA92-07-118
• Citation: 626 N.E.2d 968,89 Ohio App.3d 572
• Parties: SOWERS et al., Appellants, v. MIDDLETOWN HOSPITAL et al., Appellees. *
• Court: Ohio Court of Appeals

Page 572

89 Ohio App.3d 572

626 N.E.2d 968

SOWERS et al., Appellants, v. MIDDLETOWN HOSPITAL et al., Appellees. ^*

No. CA92-07-118.

Court of Appeals of Ohio, Twelfth District, Butler County.

Decided June 14, 1993.

Ruppert, Bronson, Chicarelli & Smith Co., L.P.A., James D. Ruppert and John D. Smith, Franklin, for appellants.

Scheper & McGowan, James H. Scheper, Hamilton, for appellees Kah and Gynecological Consultants, Inc.

Lindhorst & Dreidame and John A. Goldberg, Cincinnati, for appellee Middletown Hosp. Ass'n.

Greene & Bloom and Gordon C. Greene, Cincinnati, for appellees Oches, Swisher, Perkins and Children's Medical Center, Inc.

WALSH, Judge.

Plaintiff-appellant, Richard Sowers ("Richard"), by and through his natural mother, Trudy Sowers ("Sowers"), ¹ appeals a jury verdict before the Butler County Court of Common Pleas in favor of defendants-appellees, Middletown Hospital Association, Ralph E. Kah, M.D., Gynecological Consultants, Inc., Ronald E. Oches, M.D., Marian Swisher, M.D., John R. Perkins, M.D., and Children's Medical Center, Inc. Dr. Kah operates his gynecological practice through Gynecological Consultants, Inc. and Drs. Oches, Swisher and Perkins operate their pediatric practice through Children's Medical Center, Inc.

Appellants filed this medical malpractice action on July 29, 1987. The complaint states that Richard suffers from severe psychomotor and mental retardation, cerebral palsy and seizures as a result of appellees' negligence during labor, delivery and the two days thereafter. A jury heard the case between February 18, 1992 and March 11, 1992.

The evidence presented at trial indicates that Sowers arrived at Middletown Hospital in the early stages of labor at 4:30 a.m. on April 25, 1980. She was outfitted with an external fetal monitor at 5:30 a.m., which remained in place until 7:30 a.m. Appellants presented testimony that the monitor displayed "nonreassuring and worrisome" signs during this two-hour period. Dr. Kah examined Sowers at 7:30 a.m. during his daily rounds; because Sowers' contractions were infrequent, Dr. Kah instructed her to ambulate to encourage the progression of labor.

At noon, Dr. Kah ordered the administration of one hundred milligrams of Vistaril to calm Sowers. The external fetal monitor was reattached at 12:20 p.m. At that time, Sowers' cervix was dilated to four centimeters and was one hundred percent effaced. These characteristics are consistent with progress in labor, but appellants again presented testimony of "nonreassuring" fetal monitor readings between 12:20 p.m. and 4:30 p.m.

Sowers' membranes spontaneously ruptured at 4:30 p.m., that is, her water broke. The baby had entered the zero station position and the cervix was dilated to five centimeters. Oxygen was administered and an internal fetal monitor was applied. The internal monitor recorded a fetal heart rate of 100, which is below normal and may have indicated decreased oxygen to the baby's vital organs. In addition, meconium fluid ² was detected. The nursing staff did not notify Dr. Kah of these developments.

During a telephone conversation at 6:15 p.m. with a member of the obstetric nursing staff, Dr. Kah ordered the administration of Pitocin, a labor-enhancing drug, because Sowers' contractions remained infrequent. Between 6:15 and 9:30, the Pitocin dosage was increased in an attempt to further stimulate labor. The Pitocin was effective in increasing Sowers' contractions, and Dr. Kah delivered Richard at 9:55 p.m. Richard was assigned Apgar ³ scores of three at one minute and five at five minutes. As a result, he was transferred to the intensive care nursery.

After Richard was born, Drs. Swisher, Perkins and Oches, who rotated pediatric coverage on the weekends, became responsible for his treatment. While in intensive care, Richard exhibited rigidity, spasticity and signs of neuromuscular irritability. He was also cyanotic ⁴ and experienced breathing problems. The nursing staff in intensive care contacted Dr. Swisher several times during the late evening hours of April 25 and early morning hours of April 26 regarding Richard's condition. After being notified that a dextrose stick test was abnormal, Dr. Swisher ordered a microsugar test to determine Richard's blood-sugar level. Apparently, the dextrose stick test often produces erroneous results. However, because Dr. Swisher interpreted the overall information relayed during the nurses' calls to mean Richard was improving, he did not examine Richard at the hospital.

Dr. Perkins examined Richard during his hospital rounds at 8:00 a.m. on April 26. The examination revealed periods of prolonged apnea ⁵ and cyanosis. Richard also exhibited periods of intermittent seizure activity during the examination. Dr. Perkins administered oxygen, started an I.V., and ordered blood tests and a chest x-ray. The test results and the chest x-ray fell within normal limits.

In addition to the 8:00 a.m. examination, Dr. Perkins examined Richard at noon, 4:10 p.m. and 10:00 p.m. During the noon visit, Dr. Perkins, concerned about swelling of the brain, decreased the input of fluids. Dr. Perkins also ordered that Richard's urine output be measured every four hours and prescribed antibiotics to address possible bacterial infection. He did not order phenobarbitol, a seizure medication, at that time because of his fear that it would accentuate Richard's apneic spells.

During the 4:10 p.m. visit, Dr. Perkins performed a spinal tap to test for intracranial bleeding. Richard was active and crying and tolerated the procedure well. The apneic spells had ceased, but the nurses' notes suggested the possibility of some minor seizure activity during Dr. Perkins' absence.

At 8:50 p.m., the attending nurse telephoned Dr. Perkins with descriptions of additional seizure activity. As a result, Dr. Perkins administered phenobarbitol. Dr. Perkins then visited Richard at the hospital at 10:00 p.m. to monitor the effects of the phenobarbitol. During this examination, Richard was breathing well but experiencing definite seizure activity. Dr. Perkins left orders to increase the phenobarbitol if sustained seizures began and to perform blood tests the following morning. The seizures continued during the night and the phenobarbitol dosage was increased on two occasions.

Dr. Oches examined Richard during the morning of April 27. After the examination, he ordered the continuation of phenobarbitol pursuant to a regular schedule of dosage. At 4:25 p.m., Dr. Oches was notified that Richard's seizure activity was continuing. He ordered a blood-sugar test and an extra dose of phenobarbitol. The blood test results were within normal limits.

At 7:40 p.m., Dr. Oches was notified that Richard's seizures were becoming more frequent. Dr. Oches added Dilantin to the phenobarbitol. At approximately 9:00 p.m., Dr. Oches was notified that there had been no change in the seizure activity. At 11:00 p.m., he ordered that Richard be transferred to Children's Hospital in Cincinnati.

At trial, appellants sought to prove that all of the nurses and physicians involved in Richard's care until the transfer to Children's Hospital had violated their professional standard of care. Appellants argued that the nurses involved were negligent for failing to recognize abnormal patterns on the fetal heart monitoring strips, for not notifying a physician of these patterns, and for not discontinuing Pitocin once the abnormal patterns appeared.

Appellant argued that Dr. Kah was negligent in not recognizing the abnormal fetal heart patterns, failing to artificially rupture the membranes at 7:30 a.m. on April 25, ordering Pitocin, and in not performing a Cesarean section at 5:00 p.m. Appellant also charged that Dr. Swisher should have examined Richard at the hospital; that Dr. Perkins should have administered phenobarbitol earlier and transferred Richard to Children's Hospital; and that Dr. Oches should have transferred Richard to Children's Hospital immediately upon examining him.

On March 11, 1992, the jury found that Drs. Kah, Swisher, Perkins, and Oches were not negligent. Although the jury found Middletown Hospital negligent, the jury determined that the hospital's negligence did not cause Richard's injuries. Appellants filed a motion for new trial, which the court denied on June 9, 1992.

On appeal, appellants present eleven assignments of error for review. We address each assignment in order.

By their first assignment of error, appellants contend that the trial court erred in its rulings on several challenges for cause during voir dire. Appellants allege that the trial court "consistently and blatantly" ruled on challenges for cause "in a biased and prejudicial manner favorable to the defense." We do not agree.

R.C. 2313.42 lists ten ways to justify challenging a juror for cause:

"(A) That he has been convicted of a crime which by law renders him disqualified to serve on a jury;

"(B) That he has an interest in the cause;

"(C) That he has an action pending between him and either party;

"(D) That he formerly was a juror in the same cause "(E) That he is the employer, the employee, or the spouse, parent, son, or daughter of the employer or employee, counselor, agent, steward, or attorney of either party;

"(F) That he is subpoenaed in good faith as a witness in the cause;

"(G) That he is akin by consanguinity or affinity within the fourth degree, to either party, or to the attorney of either party;

"(H) That he or his spouse, parent, son, or daughter is a party to another action then pending in any court in which an attorney in the cause then on trial is an attorney, either for or against him;

"(I) That he, not being a regular juror of the term, has already served as a talesman in the trial of any cause, in any court of record in the county within the preceding twelve months;

"(J) That he discloses by his answers that he cannot be a fair and impartial juror or will not follow the law as...