Was baby's shoulder dystocia caused by Dr.?

Case on Point: Estate of Ford v. Eicher, 2008-CO-1215.068 (12/11/2008) P.3d -CO

ISSUE: In most medical malpractice cases, expert medical testimony as to medical malpractice and causation is the sine qua non for success or failure, depending on whether one is the plaintiff or the defendant. In this unusual Colorado case the trial judge was presented with proffered testimony, which the trial court deemed to be inadmissible. This, inter alia, led in large part toward a jury returning a verdict for a child born with injuries resulting from shoulder dystocia. On appeal, the court took a different position.

CASE FACTS: On August 27, 2001, Joy Ford was admitted to Rose Medical Center for the induction of labor. Her primary obstetrician practiced with a group of physicians, including Dr. Danny Eicher. Joy had previously been diagnosed with gestational diabetes, which creates a danger that the baby will have difficulty passing through the mother's vaginal canal. Dr. Eicher was on call at the time labor began, and he assumed the responsibility for delivering the baby. As the baby descended through the birth canal, Dr. Eicher made a diagnosis of shoulder dystocia, which occurs when the baby's shoulder becomes caught in the birth canal after its head is delivered. This prevents the full delivery of the baby and is considered an obstetrical emergency. Obstetricians have developed several procedures to address this condition Dr. Eicher used the McRoberts maneuver by positioning the mother's legs to maximize the potential opening for the baby to pass through; he also applied subpubic pressure by having a nurse apply pressure on the mother's pubic bone to dislodge the impacted shoulder; that as the nurse applied such pressure, he applied traction; and that baby was delivered. Dr. Eicher denied applying "excessive" traction. The baby, who was named Catherine, was diagnosed with a brachial plexus injury to the right shoulder. The estate that was established for the baby filed suit for medical malpractice, alleging that Dr. Eicher failed to properly inform Catherine's parents about the risks of a vaginal birth as opposed to a caesarian section, and that he applied excessive traction to deliver the baby. After a jury trial, the jury returned a verdict in favor of the estate, and the trial court entered judgment accordingly. Dr. Eicher contended that the trial court abused its discretion in granting the estate's pretrial motion to preclude his two defense experts from expressing opinions regarding the cause of Catherine's injury.

COURT'S OPINION: The Court of Appeals of Colorado agreed with Dr. Eicher and concluded that the trial court abused its discretion in denying Dr. Eicher's motion to preclude the estate's expert's from testifying and denying Dr. Eicher the opportunity to have his expert medical witnesses testify on his behalf. Accordingly, the court reversed the judgment of the lower court and remanded the case for a new trial not inconsistent with the ruling of the court as to allowing and disallowing the expert medical testimony of the eyewitnesses for each side.

LEGAL COMMENTARY: Two judges concurred with the majority opinion. One of the two concurring judges wrote a special concurring opinion. At a pretrial hearing the trial judge addressed the admissibility of opinions by two experts, Drs. Joseph Ouzounian and Theodore Cooper. They were to testify (on Dr. Eicher's behalf) that Catherine's "injury to her right brachial plexus occurred prior to Dr. Eicher's efforts to deliver the anterior shoulder"; that her "injury was not caused by anything that Dr. Eicher did or didn't do"; and that "a planned cesarean section would not necessarily have prevented injury to [her]." The two physicians did not testify at the pretrial hearing,, but their depositions were reviewed by the trial court along with the accompanying medical literature on which they relied. After considering the depositions and the parties' other submissions, the trial court found that Dr. Ouzounian's opinion was not scientifically reliable, and that Dr. Cooper's opinion was not based on a reasonable degree of medical probability. The trial court ruled that the two experts would be allowed to testify that such injuries, can occur in the absence of excessive traction by the attending physician, for example, by intrauterine contractions. However, the trial court disallowed Dr. Eicher's two expert medical witnesses from testifying that "this injury to Catherine Ford was caused by intrauterine contractions unrelated to her shoulder dystocia."

Editor's Note: The trial court sealed its fate by acknowledging that although there was a body of literature, much of it peer-reviewed, challenging the orthodox view that excessive traction is the only, or perhaps even the primary, cause of brachial plexus injury in shoulder dystocia related deliveries, the trial court acknowledged that there was no way for it or the jury to test causation or assess error rates. In short, there was simply no way to tell!

A. David Tammelleo JD Editor & Publisher

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 Who in American Law, Who's Who in America and Who's Who in the World