Howerton v. Mary Immaculate Hospital

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Present : Lacy, Hassell, Keenan, Koontz, Kinser, and Lemons, JJ., and Whiting, S.J.
KACIE HOWERTON, AN INFANT, ET AL.
OPINION BY SENIOR JUSTICE HENRY H. WHITING June 7, 2002
V. Record No. 011557
MARY IMMACULATE HOSPITAL, INC.
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS H. Vincent Conway, Jr., Judge
In this medical malpractice action, we review the trial court's ruling in striking the plaintiffs' evidence on the ground that it was insufficient as a matter of law to establish either that the defendant was negligent or that such alleged negligence was the proximate cause of the damages claimed. Because the trial court struck the plaintiffs' evidence, we state the evidence in the light most favorable to the plaintiffs. E. g., Hadeed v. Medic-24, Ltd., 237 Va. 277, 281, 377 S.E.2d 589, 590 (1989) (court struck evidence after jury failed to agree upon a verdict) .
On March 27, 1997, Lora Howerton, the only patient in the labor and delivery rooms of the Mary Immaculate Hospital, was awaiting the birth of her first child, later named Kacie Howerton. A number of relatives were in the room with the expectant mother.
That morning, at the direction of Dr. Kathy O'Connell, Mrs. Howerton's obstetrician/gynecologist, labor and delivery nurses employed by the hospital administered Pitocin, a drug designed

to induce labor. 	When Dr. O'Connell examined Mrs. Howerton at
2:25 p.m., Dr. O'Connell thought that the frequency of her
contractions and the dilation of her cervix indicated Mrs.
Howerton was in the early stages of labor. 	Dr. O'Connell
directed that the Pitocin be continued and she did not expect
the mother’s cervix to be sufficiently dilated for delivery of
the baby for some time. 	Although Dr. O'Connell left the
hospital, she was available to be contacted through the hospital
paging system.
At 2:30 p.m. Mrs. Howerton was experiencing more intense
contractions than she had that morning but the resulting pains
were broad in nature, rather than in one particular spot, and
the pains were not excruciating. 	However, at 3:00 p.m., Mrs.
Howerton testified that she experienced intense and different
abdominal pains as if "someone had taken a knife and stuck it
directly in me at that spot and twisted it." 	Mrs. Howerton
asked one of her relatives to get a nurse so that she could tell
the nurse of the new and "totally different" pain.
Whereupon, Howard Linwood Howerton, her husband, went to
the nurses' station adjoining Mrs. Howerton's labor room and
told the nurses that his wife was "in severe pain. 	We need
somebody to come in here now . . . she feels it's not normal."
The response was: "It will be a few minutes. 	We're in the
middle of shift change." 	Later, when Mrs. Howerton's mother
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went to the nurses' station and stated that "My daughter needs
you now . . . she’s having sharp pains," she received the same
response. 	Two of the nurses finally came to the room at 3:15
p.m. after Mrs. Howerton's father, using strong language,
demanded that they do so.
The husband testified that when the nurses "came in the
room and realized that something was going on . . . [one nurse]
yelled, 'Stat.' " 	"Stat" is a code word which signifies an
emergency situation.
There was a further delay in contacting the doctor because
the one nurse suggested they not call the doctor "yet." 	Some
time later, at 3:23 p.m., another nurse, who disagreed with the
first nurse, paged Dr. O'Connell on the doctor's cellular
telephone using the "stat" designation of an emergency
situation. 	At that time, Dr. O'Connell was in her car some
distance away from the hospital.
When the doctor answered the emergency page at 3:25 p.m.,
she was advised that the undelivered baby's heart rate was in
the "60s to 70s" (a normal heart rate being from 120 to 160) and
that the mother was having some abdominal pain. 	Dr. O'Connell
learned that the infant's heart rate "had been down for a while,
but [did not] recall exactly how many minutes at that point."
As Dr. O'Connell was driving rapidly toward the hospital,
she called the labor room again at 3:30 p.m. and learned that
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the baby's heart rate was "still low in the 60s to 70s." 	At
that time "we started talking about moving her back to the
operating room for a C-section." 	The doctor described a
Caesarian section or C-section as "the most expeditious way to
deliver a baby in an emergency situation." 	Dr. O'Connell
testified that if a reasonably prudent obstetrician/gynecologist
is informed that "a patient was experiencing sudden pain that
was out of the ordinary and there were some decelerations of the
heart rate, one may start to think about a C-section."
Dr. O'Connell was able to deliver Kacie Howerton by C-
section at 3:55 p.m., promptly after her arrival, because she
had alerted the hospital to set up the C-section as she was
driving toward the hospital. 	After Kacie's delivery, it was
discovered that the mother's uterus had ruptured in three places
during labor resulting in extensive neurological damage to
Kacie.
Georgia Holder, a nurse with extensive experience in labor
and delivery nursing, qualified as an expert witness on the
standard of care required of labor and delivery nurses. 	In
Nurse Holder's opinion, this standard of care required one of
the labor and delivery room nurses immediately to have gone to
Mrs. Howerton when "notified of this worsening pain," evaluate
her condition, and notify her physician.
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Dr. Robert Juskevitch, an obstetrician/gynecologist, also
testified as an expert witness. 	Dr. Juskevitch stated that an
expectant mother's complaints of pain of a different type and
character and intensity than labor pains prior to delivery of
the baby "could [indicate] a ruptured uterus, also could be a
separation of placenta." 	Hence, in the performance of the
requisite standard of care, a reasonably prudent physician
should immediately go to the mother's bedside and be prepared to
perform any necessary C-section within 30 minutes of being
informed of such complaints.
Dr. Juskevitch also testified that Mrs. Howerton's
complaints of a new and different deep, sharp, and knife-like
pain indicated that there was "a rupture [or tearing of the
uterus] that occurred at 3:00 [p.m.], and in general, things
like this tend to be progressive." 	"It might start out as a
small tear and extend, become larger, over time." 	Dr.
Juskevitch opined that these knife-like instances of pain were
associated with episodes of increased tearing.
Dr. Juskevitch explained that these instances of tearing
presented challenges to the unborn baby which began when the
first tear occurred at 3:00 p.m., and were evident at 3:17 p.m.
when "the nurses came into the room, realized that the baby's
heart rate was erratic." 	However, if these partial and
progressive tears had not ruptured the blood vessels from which
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the unborn baby received its necessary oxygen through the blood
flowing through the mother's uterus to the placenta and from it
to the baby, Dr. Juskevitch did not think that the baby would
have suffered neurological damage provided it was delivered
promptly after the tearing occurred.
Dr. Juskevitch opined that if Dr O'Connell had been
informed at 3:09 p.m., the baby should and would have been
delivered by 3:39 p.m. 	Because Dr. O'Connell was not advised by
the nurses of the change in the mother's condition until 3:25
p.m., the baby was not delivered until 3:55 p.m., thirty minutes
after Dr. O'Connell responded to the delayed page.
This delayed delivery was 46 minutes after the doctor
should have been called at 3:09 p.m. and 16 minutes after the
baby would have been delivered at 3:39 p.m., had the doctor been
called at 3:09 p.m.1 According to Dr. Larry E. White, a child
neurologist called as an expert witness by the plaintiff, if the
1 The time of 3:09 p.m. was used as a basis for Dr.
Juskevitch's opinion because counsel for the defendant suggested
to the court that Nurse Holder had testified this was the time
when the nurses should have come in, evaluated the patent after
her complaints of a worsening pain and immediately notified the
doctor of this change in the nature of the pain. 	Counsel was
wrong about the time; Nurse Holder testified that the nurses
should have come in when the relatives told them of the
worsening pain and the husband's evidence was that he did so at
3:00 p.m. 	Had the correct earlier time been the basis for the
opinion, the time period for a safe delivery would have
increased.
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baby had been delivered 15 minutes before 3:55 p.m., or by 3:40
p.m., she would have sustained no neurological damage.
Kacie, by her mother and next friend, and Kacie's parents
joined in this action against Mary Immaculate Hospital to
recover damages arising from Kacie's delayed delivery. 	The
plaintiffs have not appealed the trial court's limitation of
their claims to the following: (1) Kacie, for her injuries and
disabilities, (2) Kacie's parents, for their medical expenses,
and (3) Kacie's mother, for her emotional distress.2
During the several-day jury trial, the court denied the
defendant's motion to strike the plaintiffs' evidence made at
the conclusion of the plaintiffs' evidence but took under
advisement the same motion made at the conclusion of all the
evidence. 	When the jury was unable to agree upon a verdict
following deliberation for a period of over two days, the court
discharged the jury, declared a mistrial, and, after additional
argument, finally struck the plaintiffs' evidence and entered
summary judgment for the defendant. 	The plaintiffs appeal.
The plaintiffs contend that their evidence was sufficient
to raise two factual issues: (1) whether the nurses were
negligent in their delayed response and notification of Dr.
O'Connell; and (2) whether that negligence was a proximate cause
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of Kacie's neurological disabilities and the other damages
claimed. 	During oral argument on appeal, the defendant
conceded, and we agree, that the evidence was sufficient to
create a jury issue regarding the alleged negligence of the
nurses. 	Defendant argues, however, that the plaintiffs'
evidence was insufficient as a matter of law to establish that
such negligence was a proximate cause of the damages sustained.
To support that claim, the defendant argues that, even if
the nurses were negligent between "3:00 and 3:11,"3 there was no
evidence that, had the necessary information been communicated
to a reasonably prudent obstetrician/gynecologist during that
period, anything he or she would or should have done "would have
changed the result to Kacie." 	We do not agree with the
defendant.
The defendant fails to state the evidence and all
reasonable inferences deducible therefrom in the light most
favorable to the plaintiffs whose evidence was struck, as
required by well-settled appellate principles exemplified in
Hadeed. 	Instead, the defendant seeks to confine the crucial
period of its negligence to an 11-minute period, overlooking
evidence in the record from which a jury could have found that
2 We refused the defendant's appeal of the court's
recognition of the mother's right to assert a claim for
emotional distress.
3 The defendant does not cite a source for its 3:11 p.m.
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its negligence extended over the 25-minute period before the
nurses informed Dr. O'Connell of the mother's change of
condition. 	The jury could have found that this 25-minute
period, when combined with the 30-minute period it took Dr.
O'Connell to deliver Kacie after the 25-minute delayed
notification, effectively destroyed Kacie's chances of being
delivered without neurological damage.
This was because Dr. White opined that the neurological
damage to Kacie occurred 15 minutes before her birth at 3:55
p.m. and that no such damage would have occurred if Kacie had
been delivered 16 minutes earlier, or by 3:39 p.m. 	Thus, the
jury could have found that had Dr. O'Connell been notified by
3:09 p.m., she would have delivered Kacie without neurological
damage by 3:39 p.m.4
Indeed, the jury could have found proximate causation even
under the theory of the defendant's expert witness, Dr. Jay Paul
Goldsmith. 	He opined that the uterine rupture was complete and
the blood flow to the fetus had entirely ceased between 3:23
p.m. and 3:25 p.m. and that "you had 10 to 20 minutes after that
when the injury occurred." 	Reviewing this evidence in the light
hypothesized time and we were unable find one.
4 The defendant advisedly does not claim that Dr. O'Connell
negligently delayed Kacie's delivery. 	Three doctors, two of
whom were defendant's experts, testified that a 30-minute
reaction time after the doctor’s notification was within the
standard of care.
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most favorable to the plaintiffs, the jury could have concluded
that if Dr. O'Connell had been called promptly at 3:00 p.m., the
baby could have been delivered without extensive neurological
damage at any time up to 3:45 p.m., "20 minutes after" the blood
flow entirely ceased.
In explaining why it sustained the defendant's motion to
strike the evidence, the trial court discussed and rejected
parts of Dr. Juskevitch's opinion which conflicted with the
opinions of the defendant's experts. 	In doing so, the trial
court violated the principle we articulated in a similar
situation in Austin v. Shoney's, Inc., 254 Va. 134, 138, 486
S.E.2d 285, 287 (1997), by assessing the weight and credibility
of the evidence and rejecting inferences favorable to the
plaintiffs which did not defy logic and common sense.
Reviewing the evidence in accordance with the principles
set forth above, we conclude that the evidence was sufficient to
raise a jury issue regarding the nurses' negligence and whether
such negligence proximately caused Kacie's injuries and the
other injuries and losses claimed. 	Hence, we hold that the
trial court erred in striking the plaintiffs' evidence and in
entering summary judgment for the defendant.
Accordingly, we will reverse the judgment in favor of the
defendant and remand the case for a new trial.
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Reversed and remanded.
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