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Cruz v. Paso Del Norte Health3/29/2001
in its policies and procedures:
• the decision to give oxygen at four liters;
• failure to initiate oxygen at the first severe prolonged deceleration, between 3:12 and 3:14 a.m.;
• failure to initiate additional positional changes;
• failure of the charge nurse to know that hypoxia causes tachycardia;
• failure of the charge nurse to know that uteroplacental insufficiencies cause late decelerations;
• failure to recognize nonreassuring fetal heart rate patterns.
Dr. Donald J. Coney
Dr. Britt's concerns were echoed by Dr. Coney, who had read the depositions of Nurses Graham and Avila. Avila had been asked to draw an early deceleration and her drawing and definition were inaccurate. She did not know what caused late decelerations. Nurse Graham incorrectly described the causes of variable decelerations and late decelerations both in her deposition and at trial, despite the fact that she had attended continuing education classes in the interim. Graham's explanation that she gave Cruz four liters of oxygen rather than eight to ten made no sense to Dr. Coney. He then identified the following nursing deficiencies as negligence:
• failure to respond to a nonreassuring fetal heart rate pattern;
• failure to inform Dr. Tomasino of the abnormal fetal heart rate pattern;
• failure to institute vigorous intrauterine resuscitative measures (larger boluses; rotate the mother side-to-side; higher concentrations of oxygen);
• failure to demand the physician's presence; and
• failure to anticipate that a C-section would be performed.
The hospital, in turn, was negligent in its training, supervision, or assignment of Avila and Graham. As to proximate cause, Dr. Coney testified:
My opinion is that those actions, not getting the doctor in to do a timely indicated cesarean section, allowed the progression of the hypoxia to Sergio's brain to the point that irreversible brain damage occurred, so it did cause what happened to Sergio.
The nurses should have made the call to the doctor between 3:18 and 3:23 a.m. Had the baby been delivered by 4:15 or 4:30 a.m., he would "have probably been okay."
In an effort to counter what has come to be known as the "empty chair defense," Dr. Coney diverted blame from Dr. Tomasino. He opined that Dr. Tomasino had not even looked at the fetal monitor strip when he arrived at the hospital. Instead, he was focused on the patient he was about to deliver:
He's walking down the hallway thinking about a lady who's about to deliver a baby on the floor if he doesn't get there, and a nurse runs up and hands him this strip and says, `Dr. Tomasino, what do you think about it?'
I've been there. And your attitude is -- and you might even say a few cuss words because your primary concern at that time is taking care of a fetus that's about to deliver on the floor. And you want to be there, and needless to say, the patient wants you to be there. The primary point that you're concentrating on is that patient about to have a baby. And so human nature being what it is, do I think that Dr. Tomasino accurately looked at this strip? And I don't even have to answer the question. I've been there for 30 years and I guarantee you, even in retrospect, thinking I never make a mistake, I realistically would not have accurately looked at this strip. And I think that's exactly what happened to Dr. Tomasino. He then delivered the other patient.
In other words, the breach in the standard of care was not Dr. Tomasino's failure to recognize a nonreassuring fet
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