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Brown v. Contemporary OB/GYN Associates3/27/2002
, when I did the downward pressure, minuscule stalk, limp fetus, it simply separated. . . .
Dr. Alger also testified at trial as to the potential for harm to the fetus, given the circumstances of this case. She said:
This is a terrible situation to be in, for the patient, the husband, and for the obstetrician. Nothing good is going to come of this whole situation, no matter what.
First of all, you are guaranteed, no matter how the baby is delivered, that the baby is going to die. There is a 100-percent mortality rate in a delivery at this gestation. So that's inevitable. So it's bad to begin with.
Now what we have is we have a woman who has delivered the body of a fetus that - a baby that she wanted very much, and this is hanging out between her legs. And what do you do at this situation?
When you decide to try to deliver the baby, you're not doing it with the idea that you're purposely going to try to separate the baby's head from the torso.
You're trying to expedite the delivery, because here are your alternatives.
(1) In most situations, the baby is already dead at this time. Because the baby is so small, as it comes down the vagina, by the time it's coming of the introitus. . . .
The opening of the vagina - the opening of the vagina coming out - the umbilical cord has already been compressed against that body of the baby, because it's already down in the vagina, the length of the baby being such that it's getting compressed by the vaginal walls and it's cutting off the blood supply to the baby.
So, usually, these babies are born either stillborn or moribund with just a heartbeat.
So, you have - one possibility is the baby is already dead, and she has a dead fetus hanging between her legs. And I think that's a very stressful situation to be lying there knowing that this fetus is hanging out of there and that's your baby.
So that I, as an obstetrician, am going to attempt to expedite that delivery and not leave you hanging there, you know, in this situation that's very stressful, if I can go ahead and deliver this baby.
The other alternative is that maybe the baby is still live-born. And so, then I have the alternative of this baby that is potentially live there, but is slowing dying right between the mother's legs before her - if she could feel it move or anything and then it just stops and it's just lying there, that, to me, would be incredibly stressful.
So my natural instinct to try to help my patient is to try to expedite that delivery, so that she doesn't have to go through that.
And in most cases, I will be able to accomplish that delivery without any injury to the fetus and be able to wrap the fetus in a towel, take it away, present it to her later on when she can cope with this.
Occasionally - it's not common - because the fetus is so fragile at that gestational age, without even using much force at all, this can occur. The head can separate from the torso.
And this is not the fist time that any obstetrician who deals with this will have heard of this. It does happen.
But that's not your intent when you're doing this, and it can happen using judicious force.
It's just the nature of delivery that has this as a possible outcome. (Emphasis added).
It is well settled that a "party is entitled to have his or her theory of the case presented to the jury, provided that the theory is legally and factually supported." Shapiro v. Massengill, 105 Md. App. 743, 761, cert. denied, 341 Md. 28 (1995) (emphasis added). Thus, "a trial court must properly
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