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Walters v. Hobbs8/22/2001
(1) should have taken serial ultrasound images during the pregnancy; (2) should have arranged for delivery at a facility that had personnel and equipment to care for a small-for-gestational-age baby; (3) should have provided Sherri with sufficient advice and referrals in light of the fact that her pregnancy was high risk; and (4) should not have allowed Sherri "to go two weeks after her estimated due date for delivery of Cheyenne L. Walters, which increased the likelihood of meconium release and subsequent aspiration of meconium into the lungs before her birth, resulting in damage to lung tissue inhibiting Cheyenne's ability to inhale oxygen and exhale waste products and requiring forced oxygen resulting in lung damage after birth[.]" Id.
Two other aspects of the original complaint are particularly important. First, that complaint did not allege physical injury to Sherri, only emotional harm. Second, the sole alleged cause of the emotional harm was that Sherri had witnessed Cheyenne's birth, with Cheyenne being covered in meconium and in distress.
In contrast, the amended complaint, for the first time, alleged physical injury to Sherri, and no longer sought to recover for Sherri's emotional distress at witnessing Cheyenne's birth. In particular, the amended complaint introduced entirely new specifications of negligence as to Sherri: (1) that Sherri underwent a stress test and fetal monitoring while nursing personnel and Sherri observed decelerations in the fetus' heartbeats; (2) that Sherri underwent a cesarean section delivery that was risky in light of Sherri's heart condition, when "the strong possibility exist that a cesarean section may have been unnecessary if the plaintiff had been properly monitored and labor induced prior to the time fetal distress was present thus allowing for a natural vaginal delivery"; (3) that Sherri had prolonged pain due to the cesarean section; and (4) that Sherri had to take nine months leave from her work to recuperate from the cesarean section and to care for Cheyenne. See ___ Or App at ___ (slip op at 5-7).
In sum, all of the physical harm alleged in the original complaint was harm to Cheyenne, and the only alleged harm to Sherri was the emotional harm alleged to be the result of observing the harm to Cheyenne. The acts alleged to have caused the physical harm to Cheyenne were failure to discern in a timely manner and prepare for the fact that she was small for her gestational age, and, at least by implication (given the allegations that the meconium release occurred because Cheyenne was delivered two weeks after due date and caused the lung damage), failure to ensure that Cheyenne was delivered at an earlier date. The only possible nexus between the acts alleged to cause physical harm to Cheyenne pleaded in the original complaint and the acts alleged to cause physical harm to Sherri as pleaded in the amended complaint was the allegation in the original complaint that Hobbs negligently allowed Sherri "to go two weeks after her estimated due date." The amended complaint alleges--or, at least, it may be inferred from the amended complaint--that the physical harm to Sherri (undergoing a stress test and fetal monitoring, undergoing a cesarean section delivery, recovering from a cesarean section delivery) resulted from Hobbs's negligence in allowing Sherri "to go two weeks after he estimated due date." The question, though, is whether that was "enough of a nexus between the claims for the defendant to have been able to have discerned from the first that the existence of the second was a possibility." Evans, 83 Or App at 31-32.
Although the original complaint alleged that Cheyenne was delivered by cesarean section and that the parties had
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