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Simons v. Beard6/26/2003
Argued and submitted April 8, 2003, David Douglas High School, Portland.
Reversed and remanded.
Plaintiff appeals from the dismissal, pursuant to ORCP 21 A 8 and ORCP 21 B, of her amended complaint seeking damages for emotional distress that she experienced as a result of defendants' allegedly negligent provision of obstetrical care. In reviewing that dismissal, we assume the truth of all well-pleaded facts in the amended complaint and give plaintiff the benefit of all reasonable inferences that can be drawn in her favor. See Greene v. Legacy Emanuel Hospital, 165 Or App 543, 545, 997 P2d 265 (2000), aff'd, 335 Or 115, 60 P3d 535 (2002). Applying that standard, we conclude that the amended complaint stated a claim for recovery of emotional distress damages under the "physical impact" rule. Accordingly, we reverse and remand.
Plaintiff's amended complaint alleged the following material facts: On May 30, 1998, plaintiff went into labor at full term and entered defendant Salem Hospital. Electronic fetal monitoring showed that plaintiff's fetus had borderline tachycardia (a high pulse rate), which alternated with abnormal decreases in the fetus's heart rate. Defendant Dr. Duane Beard, plaintiff's treating obstetrician, examined her and determined that the fetus was in a "transverse lie" position. That is, that, instead of being in the normal "head down" position, the fetus was lying sideways to the birth canal.
As alleged in the amended complaint, defendants knew or should have known that
"such a transverse lie makes spontaneous delivery of a fully developed infant impossible and that such a position greatly increases both maternal and fetal risk of death if not corrected prior to the onset of active labor."
Given those circumstances, defendants knew, or should have known that
"attempts to 'tip' the baby into a head-down position (i.e., version) were mandatory * * * continued observation of both mother and unborn child in the hospital with continuous fetal monitoring was necessary to determine if and when the unborn child went into fetal distress, thus requiring immediate medical and/or surgical (i.e., Cesarean section) care."
Notwithstanding those risks, defendant Beard discharged plaintiff from the hospital without ordering further tests or monitoring and without attempting to reposition the fetus into a position that would permit spontaneous vaginal delivery.
Several hours later, in the early morning of May 31, plaintiff called the hospital to inform the obstetrical nurses that her membranes had ruptured and her mucous plug had become dislodged. The nurses told plaintiff not to return to the hospital until her contractions became stronger or more frequent. Plaintiff returned to the hospital several hours later. At that time, an ultrasound examination revealed that the fetus had died. Defendant Beard subsequently returned to the hospital and repositioned the fetus to correct the transverse lie, and plaintiff then vaginally delivered the dead child.
In April 2000, plaintiff brought this action. In her amended complaint, plaintiff alleged that, as a result of defendants' negligence described above, she
"was caused to suffer the continued impact of her unborn child's transverse lie across the upper part of her birth canal which caused severe apprehension as to the safety and well being of herself and her child [resulting] in Plaintiff suffering extreme emotional trauma * * *."
Plaintiff further alleged that defendants' negligence "was a substantial and foreseeable factor in causing the prolonged and improper impact (transverse lie) of Plaintiff's baby u
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