'Simian Creases' prove 'Prenatal' injury: no liability.

CASE ON POINT: Day v. Zuschke, 01/03/2008) P.3d--AZ

ISSUE: Were simian creases the key to proving a prenatal injury?

CASE FACTS: At approximately 2:00 p.m., on March l, 2002, Stephanie Day was admitted to Thunderbird Samaritan Medical Center to induce labor. By a written physician's order form (Order), Dr. Walter Zusche ordered nurse Jody Coolman to intravenously administer Pitocin to establish and augment Day's contraction pattern. Specifically, in the Order, Dr. Zusche instructed: AUGMENTATION-INDUCTION: Start at 1-2 mu/min, increase by 12-2 mu/min every 20 min., to a maximum of 32 mu/min. When a regular contraction pattern is established, increase by increments of 1-2 mu/min every 20 minutes to increase strength of contractions, if needed. Increases are not required when regular contractions are 50-75 mm/Hg or firm by palpation. Do not increase {Pitocin} if uterine contractions 7 in 15 minutes, any evidence of fetal distress or progressive cervical change. At 8:50 p.m., Nurse Coolman began administering I milliunit of Pitocin. She increased the dosage at 9:15 p.m., by one milliunit. She again increased the dosage by one milliunit at 10:07 p.m., and at 10:30 p.m. Although the patient was having contractions, Nurse Coolman determined that they were not "firm" and that the contraction pattern was not optimal. She then increased the amount of Pitocin again by one milliunit at 2:50 a.m. At 4:00 a.m., the patient experienced severe pain in her upper abdomen. Nurse Coolman noticed a sudden drop in fetal heart rate, indicating bradycardia, and immediately requested assistance from Dr. Zuschke and another nurse. Dr. Zuschke arrived at the patient's bedside at approximately 4:04 a.m., diagnosed uterine rupture and delivered Keyon ten minutes later via emergency Caesarean section. Shortly after birth, Keyon was diagnosed with moderate encephalopathy and a seizure disorder. The diagnosis was subsequently refined to quadriplegic cerebral palsy. The patient filed a suit for medical malpractice alleging

that Dr. Zuschke and nurses treating the patient were negligent in their administration of and failure to monitor the Pitocin level during labor, and in their failure to diagnose the patient's uterine rupture, and timely recognize and respond to fetal distress. After a twelve day trial, a jury returned a verdict for the defendants. The plaintiffs motio for a new trial was denied. The plaintiffs appealed.

COURT'S OPINION: The Court of Appeals of Arizona affirmed the judgment for the defendants entered on the jury verdict for the defendants. Further, the court affirmed the trial court's denial of the motion for a new trial. The court held, inter alia, that the defendants' expert medical witnesses' testimony that simian creases on the baby's hands were evidence of a prenatal injury as opposed to anything that occurred during delivery. Accordingly, the court had to affirm the judgment entered for the defendants and affirm the denial of the motion for a new trial.

LEGAL COMMENTARY: The plaintiffs failed to explain how the preclusion of their expert medical witness, Dr. Edwards' testimony left the jury "with the impression that the length of the labor was not excessive." The jury had before it the time line of the labor and the Caesarean section, ad it could have very well believed that the time was "excessive>" However, it did not. The court noted that Dr. Vannucci, the plaintiffs' causation expert, testified on cross-examination that simian creases are a result of a prenatal abnormality in the development of a fetus' brain that "can correlate with cerebral palsy." The court noted that the plaintiffs failed to object to this line of question. Dr. Fisher, the defendants' expert medical witness on damages, testified that he had observed simian creases on Keyon's hands. At the conclusion of Dr. fisher's testimony, the trial court posed a juror's question to Dr. fisher regarding the cause of simian creases, to which dr. Fisher answered: " The causes &simian creases are typically something going wrong in utero, typically in the second or early third trimester. You do not get simian creases from a brain injury at the time of birth." The court rejected the plaintiffs' contention that, by relaying a juror's question about the causation of simian creases to Dr. Fisher, the trial court invited him to testify regarding causation and thereby abused its discretion. However, the court specifically posed the question in the context of a general matter "not referring specifically to Keyon." Thus, the court concluded that the plaintiffs were not prejudiced by Dr. fisher's testimony regarding simian creases and when, during the course of the pregnancy they appear, which indicated that the Keyon's condition was one which developed during the second or third trimester and not during his birth.

Meet the Editor & Publisher: A. David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for over 40 years, he concentrates in health care law with the Rhode Island firm of A, David Tammelleo & Associates, He has presented seminars on medical, nursing and hospital law throughout the United States. In addition to his writings as Editor of Medical Law's, Nursing Law's & Hospital Law's Regan Reports, his legal articles have been published in the most prestigious health law journals. A prolific writer, his thousands of articles, as well as his achievements as an attorney and lecturer, have won him recognition in Martindale-Hubbell's Bar Register of Preeminent Lawyers, Marquis Who's Who in American Law, Who's Who in America and Who's Who in the World.