Washington by Washington v. Barnes Hosp., 77042

• Decision Date: 25 April 1995
• Docket Number: No. 77042,77042
• Citation: 897 S.W.2d 611
• Parties: Corey WASHINGTON, a Minor by his Mother and Next Friend, Valerie WASHINGTON, Respondents, v. BARNES HOSPITAL, et al., Appellants.
• Court: Missouri Supreme Court

Page 611

897 S.W.2d 611

41 A.L.R.5th 889

Corey WASHINGTON, a Minor by his Mother and Next Friend Valerie WASHINGTON, Respondents, v. BARNES HOSPITAL, et al., Appellants.

No. 77042.

Supreme Court of Missouri En Banc.

April 25, 1995.

Rehearing Denied May 30, 1995.

Kenneth W. Bean, John J. Pawloski, St. Louis, for appellants.

Myron S. Zwibelman, Michael Gross, St. Louis, for respondents.

PRICE, Judge.

This is an appeal from a decision of the Circuit Court of the City of St. Louis entering judgment in accordance with a jury verdict against Appellants Barnes Hospital, Dr. David Weinstein and Dr. Jane Corteville (defendants) and in favor of Respondents Corey Washington and Valerie Washington (plaintiffs). Defendants were found negligent in failing to timely diagnose Valerie Washington's placental abruption and to timely perform a cesarean section, resulting in permanent brain damage to Ms. Washington's son, Corey. We hold that the trial court properly denied defendants' motions for directed verdict and JNOV. However, we also hold that defendants should have been allowed to introduce evidence of the availability of free educational services and therapies through the public special education program in mitigation of damages and we remand for a new trial on the issue of damages. This Court has jurisdiction pursuant to article V, section 10 of the Missouri Constitution.

I.

Valerie Washington was 27 years old and approximately 32 weeks pregnant with twins on January 30, 1987. That morning, she suffered periodic abdominal pains that she attributed to gas. At about 4:00 p.m., Ms. Washington walked to the bus stop to pick up her daughter and experienced more abdominal pain. She then picked up her mother from work and returned home.

At home, Ms. Washington laid down across her bed. According to Ms. Washington, "[t]hat's when my stomach kind of got big, and she [Ms. Washington's mother] said, 'I better call the ambulance.' And I said, 'I think you better because something ain't right.' " Ms. Washington described the sensation as the babies "doubling up on me."

At 4:51 p.m., an ambulance was dispatched, and Ms. Washington arrived at Barnes Hospital at 5:10 p.m. The ambulance record indicates that Ms. Washington was vomiting and experiencing contractions three minutes apart. She told the ambulance attendants that she was "suspecting twins, possibly triplets." The events that occurred in the hour and a half after Ms. Washington arrived at Barnes Hospital are crucial to her claim. A timeline of the relevant events is as follows:

4:51 p.m. Ambulance is dispatched and picks up Ms. Washington.

5:10 p.m. Ms. Washington arrives at Barnes Hospital.

5:22 p.m. Ms. Washington arrives at Labor & Delivery; Nurse Spiller feels a hard uterus/abdomen.

5:25 p.m. Dr. Weinstein is summoned. Thereafter, contractions are mild. Ms. Washington is unable to give "meaningful information." An ultrasound is performed.

5:27 p.m. Fetal scalp monitor records Baby A's (Cortland's) heartbeat. Due to the positioning of the twins, Baby B (Corey) could only be monitored by manual ultrasound.

5:32 p.m. Fetal scalp monitor readout ends.

5:39 p.m. Ms. Washington confirms she may be pregnant with twins. Dr. Weinstein summons Dr. Corteville.

5:40 p.m. Dr. Corteville arrives. She observes no point pain, no vaginal bleeding, a soft uterus and mild contractions.

5:58 p.m. Fetal scalp monitor resumes heartbeat data for Baby A. Baby B's (Corey's) heartbeat is monitored by manual ultrasound.

6:08 p.m. Baby A's heartbeat drops from the 120s, or normal, to the 90s. Baby B's heartbeat drops to 50s. Dr. Corteville, using manual ultrasound, observes Baby B become limp.

6:10 p.m. Dr. Corteville orders cesarean section. Ms. Washington refuses to sign the consent until Dr. Corteville tells her that without it, the babies would die.

6:13 p.m. Ms. Washington signs consent to cesarean section.

6:24 p.m. Baby A (Cortland) is delivered.

6:25 p.m. Baby B (Corey) is delivered.

Visual examination and subsequent analysis of the placenta revealed that Corey had experienced a complete placental abruption sometime prior to birth, depriving him of oxygen.

During the pretrial conference, plaintiffs' attorney made a verbal motion in limine concerning evidence defendants might introduce as to the availability of free education and therapies through the public special education system. Plaintiffs based the objection upon the collateral source rule. Defendants' counsel argued that the collateral source rule did not apply, both because plaintiffs had not prepaid for such services, as with insurance, and because special education is available to the public at large without consideration of financial need. The court sustained plaintiffs' motion. On the Tuesday before the evidence started, defendants filed a written motion asking the court to reconsider its ruling. The motion was denied.

At trial, plaintiffs presented the testimony of two medical experts, Dr. William Hummer and Dr. Walter Molofsky. ¹ Dr. Hummer testified regarding the standard of care. Dr. Hummer stated the clinical signs and symptoms of an abruption as: uterine contractions that are more intense and last longer than regular contractions; the uterus becoming hard for a few minutes; possible vaginal bleeding; and possible signs of fetal distress. He testified that the heartbeats of both babies showed decelerations from the beginning. He testified that Drs. Weinstein and Corteville were negligent in failing to diagnose the abruption sooner and proceed earlier with the cesarean section. He stated:

I think by seventeen thirty-nine [5:39 p.m.], there was enough information to make a presumptive diagnosis of abruption. And at that point in time, being aware of the fact that in a premature set of twins like this the abruption represents a significant greater risk to the babies than delivering them and having their lungs not being mature they should have had proceeded at that point in time to prepare for a cesarean.

Defendants' experts, on the other hand, asserted that Ms. Washington's symptoms did not clearly point to an abruption. Ms. Washington, who had previously given birth to a healthy child, did not complain of uterine contractions that were more intense than regular contractions. Defendants also contend that Ms. Washington never had a firm uterus, her contractions did not last longer than regular contractions, no vaginal bleeding was present, and no signs of fetal distress occurred. Thus, the risk of delivering the twins prematurely outweighed other risks until 6:08 p.m., when the heartbeats dropped, indicating fetal distress. Defendants argue there was no negligence, as the cesarean section was ordered two minutes later, at 6:10 p.m., and the babies were delivered within fifteen minutes thereafter.

Defendants further rely upon Dr. Hummer's testimony that the American College of Obstetrics generally states that the first incision should be made within thirty minutes after deciding to perform an emergency cesarean section, and that the first baby should be delivered three minutes after that. Thus, they argue even if the diagnosis should have been made at 5:39 p.m., they should be allowed until approximately 6:13 p.m., only shortly before when the babies were born anyway, as a matter of causation.

Dr. Molofsky, plaintiffs' causation expert, testified that at the time of trial, when Corey was five, his mental level was that of a four-month-old's. He testified that Corey would never be able to walk or sit on his own. He testified that Corey will need complete custodial care, physical therapy to maintain some effectability of his arms and legs, occupational therapy to help his arm functioning and positions, and speech and language therapy for assistance in eating. Dr. Molofsky testified that Corey's brain damage was caused by a lack of oxygen prior to birth because Ms. Washington suffered a complete placental abruption. He estimated that a child could survive inside the mother for no longer than fifteen minutes following a complete abruption. He testified that he did not know exactly when the abruption started.

Defendants' experts, on the other hand, claimed that Corey's injuries were due to a partial abruption that had been taking place all day, and that his injuries were essentially complete by the time Ms. Washington arrived at Barnes. On cross-examination, Dr. Molofsky conceded that injuries such as Corey's could result from a partial abruption that lasted for hours or even days, even if the complete abruption was not until right before birth. However, he testified on redirect examination that in such a case he would not expect to see a fetal heartbeat of 120 shortly before birth, and he believed Corey's injuries were caused by the complete abruption.

Plaintiffs called Alan Spector as an expert to testify regarding Corey's future needs for special education and therapy. Mr. Spector testified that, in order to be cared for at home, Corey would need: physical therapy, occupational therapy, and speech and language therapy twice weekly; special education at a private school; weekly visits from a nurse; a lifetime supply of diapers, bedliners and bibs; a personal attendant eight hours a day on school days and twelve hours a day on weekends and holidays; someone to provide counseling and support for Ms. Washington; a case manager until age 21; remodeling of a home, including a heated garage and special fire doors; a van with a wheelchair lift; and a computer. Mr. Spector also testified as to Corey's needs should he be institutionalized.

During his testimony, Mr. Spector several times injected comments regarding Ms. Washington's financial need. He stated that plaintiffs currently were renting their home, and that they previously had to move because of financial reasons. In answer to a question whether the family has a wheelchair he nonresponsively replied, "No, I'm not sure that the mother has an...