Taber v. Roush, 14-08-00089-CV.
| Decision Date | 17 June 2010 |
| Docket Number | No. 14-08-00089-CV.,14-08-00089-CV. |
| Citation | 316 S.W.3d 139 |
| Parties | Lauren TABER, Individually and as Next Friend to Jordan Robinson, A Minor, Appellantv.Catherine Nguyen ROUSH, M.D. and Plaza Ob-Gyn Associates, P.A., Appellees. |
| Court | Texas Court of Appeals |
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Les Weisbrod, William Arthur Newman, Max Freeman, Dallas, for appellants.
Larry D. Thompson, Suzan Cardwell, Diana L. Faust, Houston, for appellees.
Panel consists of Chief Justice HEDGES and Justices ANDERSON and BOYCE.
SUBSTITUTE MAJORITY OPINION *
Appellant Lauren Taber, acting individually and as next friend to her minor son Jordan Robinson, sued appellees Dr. Catherine Nguyen Roush and Plaza Ob-Gyn Associates, P.A. Dr. Roush provided prenatal care to Taber and delivered Jordan, who suffered nerve injuries during birth. Taber attributes Jordan's nerve injuries to Dr. Roush's asserted negligence.1
The jury returned a 10-2 verdict in favor of Dr. Roush, answering “no” to a question asking whether the negligence of Dr. Roush, if any, was a proximate cause of the injuries in question. The trial court signed a take-nothing judgment in conformity with the verdict.
On appeal, Taber asks for a new trial predicated on contentions that the trial court erroneously refused to (1) exclude expert testimony relied upon by Dr. Roush; (2) grant a mistrial based on testimony alleged to have violated an order in limine; and (3) strike venire members for cause. She also contends that the trial court's refusals to exclude expert testimony, grant a mistrial, and strike venire members for cause resulted in a jury verdict that is contrary to the great weight and preponderance of the evidence.
We affirm the trial court's judgment.
Taber was admitted to Park Plaza Hospital in Houston at 7:46 p.m. on October 27, 2002, and remained in the hospital overnight. Dr. Roush was paged and gave orders at 9:48 p.m. Labor was induced because Taber had pregnancy-induced hypertension; she began receiving Pitocin at 6:30 a.m. on October 28, 2002. Dr. Roush performed a vaginal examination at 8:51 a.m. and ruptured Taber's membrane at that time.
Taber's labor progressed during the day on October 28, and Dr. Roush performed another vaginal examination at 1:42 p.m. Dr. Roush examined Taber again about 40 minutes later; after this examination, Taber received epidural anesthetic at 2:35 p.m. Dr. Roush returned at 3:30 p.m. and inserted an intrauterine pressure catheter.
At 5:54 p.m., Dr. Roush was notified by telephone that Taber was fully dilated and had entered the second stage of labor. Dr. Roush instructed the nurses to have Taber begin pushing. At 7:34 p.m., Dr. Roush was called to the hospital for the delivery because Taber had started pushing involuntarily. Dr. Roush testified that she arrived about 15 minutes before Jordan's head delivered.
An entry in the nurse's notes states that the crown of Jordan's head was first observed at 8:06 p.m. At approximately 8:07 p.m., a “turtle sign” occurred when Jordan's head delivered.
A “turtle sign” occurs when a baby's head delivers and then retracts, indicating that shoulder dystocia has occurred. Shoulder dystocia occurs when the baby's shoulder becomes trapped against the mother's symphasis pubis or pubic bone, preventing further descent down the birth canal.
The occurrence of shoulder dystocia greatly increases the chances of injury to the baby's brachial plexus. The brachial plexus is a series of nerves emanating from the neck to form a network or mesh that supplies the shoulder, arm, and hand with movement and feeling. The brachial plexus allows normal and symmetrical growth of the arm and hand in children.
Shoulder dystocia is an obstetric emergency. To avoid brain damage to the baby from lack of oxygen due to cord compression, the shoulder dystocia must be resolved quickly so that the delivery can be completed. According to the textbook Operative Obstetrics, “[V]ery few graduating residents have seen or handled more than a few cases” involving shoulder dystocia because it is a rare occurrence. Therefore, “[w]hen presented with a case of shoulder dystocia, the inexperienced obstetrician may panic and become confused, exerting unacceptable and maldirected forces upon the infant's head, and thus producing permanent brachial plexus injury.”
At the time of Jordan's delivery, Dr. Roush was less than a year out of residency. She had handled shoulder dystocias before as a resident; this may have been the first shoulder dystocia she handled without an attending physician present.
Medical literature reports that “a clinician's first reaction to a difficult delivery is to exert considerably larger forces than he normally would.” 2Operative Obstetrics reports that “[t]he majority of brachial plexus injuries involve extraction of the child's body within 3 minutes of the delivery of the head, that is, before the end of the next uterine contraction.” The American College of Obstetricians and Gynecologists recommends that
Obstetricians have developed maneuvers to address shoulder dystocia. While there is no required order in which these maneuvers must be performed, it is generally accepted that the first two maneuvers attempted should be (1) the McRoberts maneuver, in which the mother's legs are removed from the stirrups and flexed sharply upon the abdomen; and (2) suprapubic pressure, which involves pushing down on the abdomen to push the baby's trapped shoulder out from underneath the pubic bone.
Dr. Roush testified that she diagnosed Jordan's shoulder dystocia within 10 seconds of the “turtle sign.” According to an entry in the nurses' notes, Jordan's delivery was complete at 8:08 p.m. During the minute that elapsed between the “turtle sign” at 8:07 p.m. and Jordan's birth at 8:08 p.m., Dr. Roush testified that she told Taber to keep pushing and then successfully resolved the shoulder dystocia involving Jordan's right shoulder; she testified that she did so with the assistance of nurses through application of the McRoberts maneuver and then suprapubic pressure.
The nurses who were present for Jordan's delivery testified that they had no recollection of the delivery independent of what the medical records reveal. The medical records contain nurses' notes; there is no record in the nurses' notes that the McRoberts maneuver and suprapubic pressure were applied. The medical records also contain a delivery note written by Dr. Roush after the delivery stating: “[M]oderate shoulder dystocia resolved with McRoberts and suprapubic pressure.”
Dr. Roush testified that she applied traction to Jordan's head after the shoulder dystocia was relieved. She denied applying excessive force to Jordan's head and neck during the delivery, and denied applying upward or downward lateral traction to Jordan's head. Dr. Roush testified that she applied traction to Jordan by pulling “along the axis of the baby.” She explained that In contrast to upward or downward lateral traction, Dr. Roush testified that axial traction “is really almost parallel to the floor.” Dr. Roush also testified that she “restituted” Jordan's head, meaning that she turned the head so it would be perpendicular to his shoulders, and that the word “twist” is “just a layman's term for restitution.”
Jordan's grandmothers observed the birth in the delivery room while flanking Dr. Roush. Both grandmothers testified that Dr. Roush twisted, turned, and pulled on Jordan's head with violent and frightening force. Jordan's father also was present in the delivery room at Taber's head. Taber, Jordan's father, and Jordan's grandmothers disputed Dr. Roush's testimony that the McRoberts maneuver and suprapubic pressure were applied.
Dr. Roush testified that four drapes were positioned for Jordan's delivery. According to Dr. Roush's testimony, one drape was placed under Taber's buttocks; one was placed on each leg; and one was placed on her abdomen. Dr. Roush testified that she uses drapes for every delivery. Dr. Roush further testified that “suprapubic pressure is done underneath the drapes and sometimes having the drapes there to a lay person can obscure what maneuvers we are doing.” She also testified that the McRoberts maneuver is performed underneath leg drapes, and “[t]hey are not going to see it ... if it's draped.” Taber and Jordan's grandmothers testified that drapes were not used during Jordan's delivery.
Sheryl Taber, Jordan's maternal grandmother, testified that she did not recall seeing Dr. Roush push Jordan's head down toward the floor or pull it up toward the ceiling during delivery. Gloria Robinson, Jordan's paternal grandmother, also testified that she did not remember seeing Dr. Roush pull Jordan's head down toward the floor or up toward the ceiling during delivery.
Jordan was born with a limp right arm, which immediately indicated that he had a brachial plexus injury. There are four types of brachial plexus injuries; most are transient and heal on their own or can be repaired surgically. Because most brachial plexus injuries are transient, a permanent brachial plexus injury is not finally diagnosed until it persists for more than a year or is confirmed surgically.
The least severe brachial plexus injury is a neuropraxia or stretch, in which a nerve has...
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