Todd Hull, Parent To Tristan Taylor Hull, Minor v. Ronald Lopez, M.D.
| Decision Date | 30 September 2002 |
| Docket Number | 02-LW-5849,01CA2793 |
| Parties | TODD HULL, PARENT TO TRISTAN TAYLOR HULL, MINOR, ET AL., Plaintiffs-Appellants, v. RONALD LOPEZ, M.D., ET AL., Defendants-Appellees. Case |
| Court | Ohio Court of Appeals |
COUNSEL FOR APPELLANTS Robert E. Hanson, Scherner Hanson & Cornwell 130 Northwoods Boulevard, Columbus, Ohio 43235, Robert D Erney, Robert D. Erney & Assoc. Co., LPA, 731 East Broad Street, Columbus, OH 43205
COUNSEL FOR APPELLEE, SOUTHERN OHIO MEDICAL CENTER, Robert E. Dever Bannon, Howland & Dever Co., LPA, 325 Masonic Building, P.O. Box 1384, Portsmouth, Ohio 45662
DECISION AND JUDGMENT ENTRY
{¶1} Plaintiffs-Appellants Todd and Shannon Hull, on behalf of their minor child Tristan Taylor Hull and in their individual capacities, appeal the judgment of the Scioto County Court of Common Pleas, which granted Defendant-Appellee Southern Ohio Medical Center's motion for summary judgment on appellants' negligence claim. Appellants argue that the trial court erred by granting summary judgment because genuine issues of material fact exist.
{¶2} We agree with appellants and reverse the judgment of the trial court.
{¶3} On July 8, 1996, Shannon Hull, who was pregnant and in labor at the time, was admitted to Southern Ohio Medical Center (SOMC). The progress of Shannon's labor and the fetal heart tones of her then-unborn baby were monitored throughout the evening, and Dr. Thomas Masters, a resident at SOMC, made several notations on Shannon's chart.
{¶4} Apparently, one of Shannon's obstetricians, Dr. George Pettit, decided that Shannon should sleep through the night, but ordered that fetal heart tone monitoring be conducted for twenty minutes every four hours. Evidently, SOMC's nursing staff did not monitor Shannon as instructed.
{¶5} The following morning, at approximately 8:20 a.m., a decrease in fetal heart tones was detected. At 8:30 a.m., the decision to proceed with a cesarean section, "as soon as possible," was made by Dr. Ronald Lopez and charted by Dr. Masters. Approximately ten to fifteen minutes later, Lora Bond, a nurse at SOMC, recognized a pattern on the fetal heart monitor tracings that correlated with possible fetal acidosis. Shannon's physicians were not informed of these changes in fetal heart tones or the possible fetal acidosis.
{¶6} Shannon was then prepped for surgery and arrived in the operating room at 8:54 a.m. Spinal anesthesia was commenced at 8:56 a.m. The cesarean section was commenced at 9:25 a.m. and Tristan Taylor Hull was delivered at 9:41 a.m. with a zero Apgar score. Tristan currently suffers from cerebral palsy, chronic seizure disorders, and mental retardation.
{¶7} In January 1997, appellants, in both their individual capacities, and on behalf of their son Tristan, instituted a medical negligence action against: (1) Ronald Lopez, M.D.; (2) George Pettit, M.D.; (3) Thomas Masters, M.D.; (4) Carolyn Corey, M.D.; (5) Pike County Family Health Center; (6) SOMC; (7) "John Doe Physicians #1-#3"; (8) "John Doe Medical Association"; and, (9) "John Doe Hospital." All, but the "John Doe defendants", timely filed their answers to appellants' complaint.
{¶8} Subsequently, appellants dismissed Dr. Corey and Pike County Family Health Center from the action. Appellants' claims against Dr. Masters were settled, and he too was dismissed from the action.
{¶9} The remaining parties proceeded to conduct discovery and a plethora of depositions were taken, including depositions of Drs. Lopez and Pettit, Lora Bond, and appellants' expert witnesses, Drs. Richard L. Sweet and James Balducci.
{¶10} In July 2000, SOMC filed a motion for summary judgment asserting that no genuine issue of material fact existed to be litigated and that it was entitled to judgment as a matter of law. SOMC argued that appellants could not show a prima facie case of negligence by the hospital's nursing staff because the Hulls' expert witnesses, Drs. Sweet and Balducci, testified in their depositions that at the time the decision to proceed to a cesarean section was made, Shannon's baby, Tristan, was not compromised. Thus, SOMC concluded that the testimony of appellants' own experts showed that the nurses' alleged negligence was not the proximate cause of Tristan's injuries.
{¶11} In its motion and supporting memorandum, SOMC quoted extensively from the depositions of Drs. Sweet and Balducci. SOMC also attached an affidavit from Lora Bond to its motion. In her affidavit, Lora Bond asserted that on July 9, 1996, at 8:30 a.m., Drs. Lopez and Masters discussed the risks of cesarean delivery with Shannon and Todd Hull for several minutes, concluding with the Hulls' decision to proceed with the cesarean section. Nurse Bond further stated that at 8:45 a.m. she obtained Shannon's signature on the consent form and proceeded to prepare Shannon for surgery by shaving her and inserting a Foley catheter. According to Bond's affidavit, Shannon was moved to the operating room at 8:54 a.m. and anesthesia was commenced at 8:56 a.m. Finally, Nurse Bond stated that from the time Shannon was situated on the operating table, Bond "no longer had any direct patient care concerning the timing of the operation."
{¶12} Subsequently, appellants filed a memorandum in opposition to appellee's motion for summary judgment arguing that genuine issues of material fact regarding proximate cause still needed to be litigated. In support of their memorandum, appellants included the affidavits of Drs. Sweet and Balducci.
{¶13} In his affidavit, Dr. Sweet stated that he had reviewed all the pertinent medical records in the case. Dr. Sweet concluded that between 8:00 a.m. and 9:00 a.m., "a nurse practitioner performing with the degree of skill, care and diligence that a nurse practitioner of ordinary skill, care and diligence should employ under circumstances such as those present in this case and at that time, would have a duty to" take steps to relieve the fetal distress by intrauterine resuscitation, including giving Shannon intravenous (IV) fluids, oxygen, and changing her position. Dr. Sweet also stated that when the fetal heart monitor strip demonstrated further deterioration in Tristan's condition at approximately 8:44 a.m., the nursing staff should have recognized the need for more rapid action to deliver the child and alerted the physicians to the change in condition, urging more rapid action.
{¶14} According to Dr. Sweet, the performance of SOMC's nursing staff, including Nurse Bond, fell below the acceptable standards of care, in light of the readings of the fetal heart monitoring strip, as follows: (1) the nurses did not attempt intrauterine resuscitation; (2) the nurses failed to alert the physicians of the baby's change in condition after the decision to proceed via cesarean section was made; (3) the nurses failed to impart a sense of urgency to the physicians or urge a more rapid delivery; and, (4) the nurses failed to report the baby's grave condition further up the "chain of command" when the physicians failed to act more rapidly in delivering the baby.
{¶15} Dr. Sweet asserted that failure of the nurses to provide proper intrauterine resuscitation was a direct and proximate cause of Tristan's severe fetal distress and compromise. Dr. Sweet further opined that the baby's fetal distress and compromise were reversible before 9:00 a.m., and that the injuries suffered by Tristan would have been minimized had the baby been delivered in a timely manner. Unfortunately, however, the physicians also deviated from appropriate standards of care.
{¶16} Finally, Dr. Sweet opined that the negligence of the nurses (i.e., failing to provide intrauterine resuscitation, alert the doctors to the baby's change of condition, and urge a more rapid delivery), combined with the negligence of the physicians (failing to deliver the baby as quickly as possible), had proximately caused the "continuation and deepening of fetal distress, and the fetal shock and lack of heartbeat and lack of perfusion, that resulted in the profound injuries and defects Tristan Hull experiences today."
{¶17} In his affidavit, Dr. Balducci agrees and concurs with the facts, bases and opinions set forth in Dr. Sweet's affidavit.
{¶18} SOMC filed a reply memorandum to appellants' memorandum in opposition to the motion for summary judgment. In its reply memorandum, SOMC argued, among other things, that the affidavits of Drs. Sweet and Balducci should be disregarded because they contradict their prior sworn deposition testimony.
{¶19} Appellants filed a response arguing not only that the affidavits of Drs. Sweet and Balducci do not contradict their prior sworn deposition testimony, but that the legal authority cited by the hospital did not support SOMC's position that the affidavits should be disregarded.
{¶20} In October 2000, the trial court granted SOMC's motion for summary judgment, resolving all appellants' claims brought against the hospital in the hospital's favor. Thereafter, appellants voluntarily dismissed their remaining claims against Drs. Pettit and Lopez, with prejudice.
{¶21} Appellants' timely filed an appeal with this Court and present the following assignment of error for our review:
{¶22} "The trial court erred in granting appellee's motion for summary judgment[.]"
{¶23} Initially, we must address a threshold issue of whether this Court has jurisdiction to address appellants' assignment of error on the merits. In the event that the parties involved in the appeal do not raise this jurisdictional issue, as in this case, then we must raise it sua sponte. SeeWhitaker-Merrell v. Geupel Co.(1972), 29 Ohio St.2d 184, 186, ...
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