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Miller v. Phillips6/12/1998
Notice: This opinion is subject to formal correction before publication in the Pacific Reporter. Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878.
Supreme Court No. S-6930
Superior Court No. 3AN-92-6190 CI
Appeal from the Superior Court of the State of Alaska, Third Judicial District, Anchorage, Dana Fabe, Judge.
The parents of an injured newborn baby sued their midwife, claiming that she panicked during the delivery and negligently caused the injury. A jury found for the midwife. On appeal, the parents claim that the midwife's supervising physician should have been barred from testifying as an expert because he was called only as a fact witness; that testimony concerning the midwife's prior lack of panic should have been excluded as inadmissible character evidence; and that the jury should have been instructed to presume that the midwife's delivery-room notes were correct and accurate. We hold that the physician was entitled to express expert opinions formed as a supervisory participant; that evidence of the midwife's lack of prior panic was admissible to prove her ability to cope with panic situations; and that the jury could properly decide for itself if the delivery-room notes were complete and accurate.
I. FACTS AND PROCEEDINGS
Gage Miller was born to William and Colleen Miller on December 12, 1991, at Alaska Regional Hospital (ARH) in Anchorage. Catherine Phillips, a certified nurse midwife, was responsible for Colleen Miller's prenatal care and performed Gage's delivery.
ARH policy required each midwife to be assigned to a "preceptor," or supervising obstetrician/gynecologist. Dr. Burritt Newton was Phillips's preceptor; in that capacity, he monitored Colleen Miller's prenatal care records for potential problems with the pregnancy, approved her for continuing midwife care by Phillips, acted as Miller's formal admitting physician at the time of childbirth, consulted with Phillips during the delivery, and reviewed and signed off on Phillips's delivery-room notes and Miller's medical chart. However, Dr. Newton was not present at the time of birth and never personally met or treated Colleen Miller.
Most of Colleen Miller's labor and delivery progressed normally. About thirteen minutes before birth, however, Gage Miller's fetal heart rate slowed, a phenomenon called fetal bradycardia. A minute or two before birth, one of Gage's shoulders lodged against and became obstructed by his mother's pubic bone, a complication known as shoulder dystocia. At birth, Gage was found to have "Erb's palsy," a permanent injury caused by damage to nerve roots at the cervical spine; this injury will greatly limit Gage's use of his right arm.
In July 1992 William and Colleen Miller filed suit on behalf of Gage alleging that Phillips, Dr. Newton, and ARH were negligent in their handling of Gage's delivery. An expert advisory panel investigated the allegation and concluded that Gage's injury probably resulted from birth trauma caused by traction on the fetal head after Gage's shoulder became impacted. However, the panel also found that the handling of Gage's birth was "appropriate," that his injury was not caused by "unskillful care," and that without intervention Gage's shoulder dystocia could have resulted in neurological impairment or fetal death.
ARH moved for and was granted summary judgment. The Millers eventually stipulated to Dr. Newton's dismissal. The case proceeded to trial against Phillips. At trial, the Millers' primary theory of negligence was that Phillips was un
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