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Brown v. Contemporary OB/GYN Associates3/27/2002
claim lies only if the fetus is viable.
In this case, there was no evidence that the fetus was viable at birth. In Dr. Osborne's deposition of December 22, 1998, which was an exhibit to appellants' opposition to summary judgment, he said, in part:
[DEFENSE COUNSEL]: As a professor of obstetrics and gynecology, do you have an opinion, to a reasonable degree of medical probability, as to whether or not a 20 to 21-week fetus would be viable if delivered at that gestation?
[DR. OSBORNE]: Yes, I have an opinion.
[DEFENSE COUNSEL]: What's that opinion?
[DR. OSBORNE]: From what I know and from what I have seen . . . I don't think . . . that it would be viable at this point.
Furthermore, appellants' theory that Dr. Donald Levitt intentionally decapitated the baby to avoid a wrongful death suit was little more than total surmise, unsupported by any evidence in the record. Again, deposition testimony of Dr. Osborne is pertinent:
[DEFENSE COUNSEL]: Now, you also were asked to look at the case and determine whether or not you had an opinion with regard to Dr. Levitt's role in the case?
[DR. OSBORNE]: Yes.
[DEFENSE COUNSEL]: Did you find that Dr. Levitt intentionally killed this baby?
[DR. OSBORNE]: I couldn't find - when you say intentionally killed the baby, you mean when decapitation occurred if he did that intentionally with aforethought and so forth?
[DEFENSE COUNSEL]: Whether he intentionally aborted the baby, whether he was responsible for performing a partial birth abortion of the baby?
[DR. OSBORNE]: Yes, from my review of the records I couldn't come up with that conclusion.
In addition, Dr. Donald Levitt testified at the third trial, as follows:
[APPELLANTS' COUNSEL]: Now, Doctor, let us assume that this baby was dead, for the sake of this question.
[DR. LEVITT]: Okay.
[APPELLANTS' COUNSEL]: hat was the complication that stopped you from delivering the baby without the head being attached from the body?
[DR. LEVITT]: All right. Well, I think I have to go through the entire delivery.
[APPELLANTS' COUNSEL]: Okay. Explain it.
[DR. LEVITT]: Okay. There were two feet, classical breech, as you straightened out the legs, which is easy to do. They were right there.
You rotate the baby because the baby, as a breech, must be delivered head down. The diameter - this diameter - is much too big for delivery, you want this diameter even on a small one.
Because the lower uterine segment is a muscle, and that dilates as far as it has to dilate. It doesn't dilate on its own, it dilates because there's a presenting part that's pushing it aside.
So I turned it over. You use a towel on the buttocks and you gradually pull down and then you shift to the left, right arm, left arm, and now I have the baby in the palm of my hand.
The baby was 10 inches from crown to toe. According to the pathologist, the head was -
[APPELLANTS' COUNSEL]: I'm talking about that.
[DR. LEVITT]: - two inches-
[DR. LEVITT]: And then the -
[APPELLANTS' COUNSEL]: (Inaudible).
[DR. LEVITT]: - neck, which I could see, was no thicker than a ballpoint pen. Completely loose and flaccid, not heartbeat in my palm.
I did a classical breech. I pushed the head down to try and engage this - this is called the occiput, and if you can engage it, then you put your finger in the cervix just to give it as much room. Pick it up and remove the head.
Well
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