Suarez v. Wotring
| Decision Date | 31 December 2002 |
| Docket Number | No. COA02-108.,COA02-108. |
| Citation | 573 S.E.2d 746,155 NC App. 20 |
| Court | North Carolina Court of Appeals |
| Parties | Sandra P. SUAREZ, as Guardian Ad Litem for Anderson Luke Suarez, and Alex Suarez and Sandra P. Suarez, Individually, Plaintiffs, v. James William WOTRING, Jr., M.D., Scott Thomas Chatham, M.D., and Catawba Women'S Center, P.A., Defendants. |
Simpson Kuehnert Vinay & Bellas, P.A., by Eric R. Bellas and Daniel A. Kuehnert, Morganton, for plaintiff-appellants.
Dameron, Burgin & Parker, P.A., by Charles E. Burgin and Phillip T. Jackson, Marion, for defendant-appellees.
Plaintiffs, Sandra P. Suarez, as guardian ad litem for Anderson Luke Suarez and in her individual capacity, and Alex Suarez, appeal the trial court's entry of judgment on the jury's verdict in favor of defendants in this medical negligence case. Plaintiffs also appeal the trial court's denial of their motion for a new trial as to defendant James William Wotring, M.D.
Plaintiffs contend the trial court committed reversible error by (1) allowing defendants to read into the record selected portions of the depositions of three of plaintiffs' expert witnesses after they had been released from subpoena with defendants' consent following their testimony at trial; (2) allowing defendants to read into the record the deposition testimony of one of plaintiffs' designated expert witnesses who did not testify at trial, without finding the witness unavailable to testify; (3) allowing testimony from one of defendants' expert witnesses concerning the standard of care and whether defendants complied with the standard of care, when defendants' designation of expert witnesses did not state the expert would so testify; (4) denying their motion for a new trial based on the jury being informed prior to the close of defendants' case that Dr. Wotring's mother had died the previous evening; and (5) denying their motion for a new trial based on the evidence being insufficient to support the jury's verdict. For the reasons herein, we affirm the judgment and order of the trial court.
On 15 October 1998, plaintiffs filed the instant complaint alleging defendants, James William Wotring, M.D., Scott Thomas Chatham, M.D., and Catawba Women's Center, P.A., negligently caused injuries and other damages sustained by Anderson Suarez during his natural birth delivery. Defendants denied that their actions prior to and during the birth violated the applicable standard of care.
Plaintiffs' evidence at trial tends to show that Sandra and Alex Suarez are the parents of two children. Sandra became pregnant with their first child in September 1989. She received prenatal care at defendant Catawba Women's Center and the delivery of her first child was accomplished with the aid of doctors and other employees at the Women's Center. The delivery, however, required an episiotomy and the use of forceps.
In February 1995, Sandra became pregnant with Anderson Suarez. At the time, she weighed 232 pounds and was five feet six inches in height. During her prenatal care at the Women's Center, she continuously reminded defendants that the birth of her first child was difficult. Sandra eventually began experiencing numbness in her leg, which she attributed to pressure being caused by the baby. She expressed her concerns to defendants that the baby was too large to deliver vaginally if she went to term.
On 6 October 1995, four days prior to the due date, Dr. Chatham performed an ultrasound which revealed the baby weighed approximately nine pounds. Sandra reminded him about the difficulties she experienced with her first delivery and asked if he would consider inducing labor. Chatham told her not to worry about delivering the baby vaginally.
In the early morning hours of 18 October 1995, Sandra began experiencing contractions and telephoned Dr. Wotring. He did not answer. Sandra left three messages, none of which were returned. When the Women's Center opened that morning, she called and was told to come in. Sandra was initially examined by Chatham and told to return home because Wotring would not send her to the hospital until she was dilated four centimeters and the contractions occurred every four minutes. Upon her insistence, Chatham reluctantly sent her to Catawba Memorial Hospital, where she was admitted around noon.
At the hospital, Sandra received an epidural, numbing her below the waist. After breaking Sandra's water, Wotring decided to proceed with a vaginal delivery, but to artificially shorten the second stage. Wotring attached a vacuum extractor suction unit to the baby's head and delivered the head on the fourth contraction.
However, delivery of the rest of the baby's body proved extremely difficult. Because the baby was so large and Sandra's pelvis was borderline and her symphysis flat, there was "shoulder dystocia" involving the baby's left shoulder—the position of the shoulder prevented the body from proceeding down the birth canal.
Before performing any maneuvers to relieve the shoulder dystocia, Wotring applied pressure to Anderson's head in an attempt to deliver the rest of the body. According to Alex Suarez, who was present in the delivery room, Wotring had his fingers in the sockets of the baby's eyes and was leaning back with his full body weight trying to deliver the baby. When this proved unsuccessful, Wotring resorted to the McRoberts maneuver, a recognized method to relieve shoulder dystocia which does not involve manipulation of or pressure on the baby's head. Anderson was delivered during the second attempt at the McRoberts maneuver. He weighed nine pounds, eleven ounces.
At birth, Anderson suffered from numerous injuries and currently suffers from Erb's Palsy, a permanent condition characterized by limited use of his left arm. The cause is severe damage to the nerves running between Anderson's left arm and spinal cord resulting from the nerves having been physically stretched to the breaking point. According to plaintiffs, the condition resulted from a brachial plexus nerve root injury suffered at Anderson's birth due to excessive lateral traction applied to his head during delivery. Plaintiffs' experts testified that defendants' care prior to and during the delivery of Anderson, particularly Wotring's use of excessive force on Anderson's head, was not in accordance with the standard of practice of members of the same health care profession with similar training and experience situated in the same or similar communities. See N.C. Gen.Stat. § 90-21.12 (2001). Defendants' experts testified that the standard of care was not violated.
Following the trial, the jury returned the following verdict:
The trial court subsequently entered judgment consistent with the jury's verdict.
Plaintiffs filed a timely Rule 59 motion for a new trial as to Wotring alleging (1) irregularities by which they were prevented from having a fair trial, (2) accident or surprise which ordinary prudence could not have guarded against, (3) insufficiency of the evidence to justify the verdict, and (4) other errors in law entitling them to a new trial.
Plaintiffs' motion was denied. They gave timely notice of appeal.
During plaintiffs' case-in-chief, Dr. Robert Allen, their bio-medical engineering expert, testified regarding the forces exerted during a routine delivery, and the forces necessary to cause the injuries suffered by Anderson. Allen offered his opinion that approximately ten pounds of force is exerted on a baby in a normal delivery, whereas in shoulder dystocia cases, the average is twenty-two pounds. Allen further opined that, based on Anderson's injuries, at least thirty-five pounds of force were exerted on Anderson's head during delivery. Allen was cross-examined at trial by defendants, and then released from subpoena with defendants' consent.
After plaintiffs rested, defense counsel stated his intention to read into evidence a portion of Allen's pretrial deposition. Plaintiffs objected. The trial court overruled the objection and defense counsel read part of the deposition to the jury.
In addition to the pretrial deposition of Allen, defense counsel also read into the record portions of the pretrial depositions of Dr. Andrew Koman, Anderson's treating orthopaedic surgeon, and Dr. Stuart Edelberg, both of whom had likewise testified in plaintiffs' case-in-chief and been released from subpoena with defendants' consent.
Plaintiffs contend the depositions of Allen, Koman and Edelberg should not have been read into the record because defendants did not establish that the deponents were "unavailable" within the meaning of Rule 804(a) of the North Carolina Rules of Evidence. Rule 804 permits the admission of certain statements, including deposition testimony, which would otherwise be hearsay, if the declarant is "unavailable." Defendants, meanwhile, maintain the depositions were admissible under Rule 32 of the North Carolina Rules of Civil Procedure without a showing of "unavailability" under Rule 804(a).
Rule 32(a) of the North Carolina Rules of Civil Procedure states, in pertinent part:
N.C.R. Civ. P. 32(a) (2001) (emphasis added). The above-italicized language in Rule 32(a) creates an exception to the hearsay rule. The Comment to the 1975 Amendment to Rule 32(a), which added the language,...
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