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Brown v. Baptist Memorial Hospital-DeSoto2/7/2002
DATE OF JUDGMENT: 5/23/2000
TRIAL JUDGE: HON. GEORGE B. READY
COURT FROM WHICH APPEALED: DESOTO COUNTY CIRCUIT COURT
NATURE OF THE CASE: CIVIL - MEDICAL MALPRACTICE
DISPOSITION: AFFIRMED - 02/07/2002
EN BANC.
. Barbara Brown (Brown) appeals both individually and as guardian on behalf of William Jetuan Brown (William) from a summary judgment for the Baptist Memorial Hospital-DeSoto, Inc. (Baptist) and Dr. Hai V. Dang (Dr. Dang). Brown's expert witness failed to testify that Dr. Dang was negligent or failed to meet the standard of care as required in medical negligence claims. Furthermore, since Brown's expert witness and Dr. Dang both testified that the injury could have been caused by factors other than negligence, we, therefore, conclude that the doctrine of res ipsa loquitur is not applicable to the facts of this case and affirm the judgment of the trial court.
FACTS
. Brown went into labor and was admitted at Baptist on October 12, 1994, under the care of Dr. Dang. As the labor progressed, Brown experienced complications when the infant's shoulders became stuck in the pelvic outlet, a medical condition labeled shoulder dystocia. To alleviate the problem, Dr. Dang performed the McRobert's maneuver which entails bending the mother's legs upward at the knee until her thighs rest against her abdomen, while an attendant applies suprapubic pressure to dislodge the infant. Following this procedure, Brown's son, William, was born.
. An attendant noticed an injury to the infant's shoulder when he arrived in the nursery. The next day, the infant was diagnosed with Erb's Palsy, a condition characterized by partial paralysis of shoulder and arm muscles.
. In October 1996, Brown, individually and on behalf of her minor child, sued Baptist and Dr. Dang alleging that her minor child suffered injuries, specifically the development of Erb's Palsy, due to the negligence of Dr. Dang and the hospital's employees. Baptist filed its answer denying any liability. Dr. Dang answered the complaint alleging that the shoulder dystocia which occurred during the delivery and Erb's Palsy, which resulted from that complication, were complications inherent in the birthing process itself and that these complications could not have been reasonably foreseen, nor avoided, through the exercise of reasonable and ordinary care.
. During discovery, depositions were obtained from Dr. Dang, the attending physician, and Dr. Selman Welt (Dr. Welt), Brown's expert witness. Dr. Dang testified that Erb's Palsy is usually caused by the over extension of the brachial plexus, where there is a tear on the top of the brachial nerve. He stated that the injury is one of the complications of the delivery and that he did not know when the injury to the brachial nerve occurred. Dr. Welt did not contradict this view.
. In April, 1999, after the completion of discovery, Dr. Dang filed a motion for summary judgment in which Baptist later joined. The court issued an order denying summary judgment in July, 1999. After the denial of summary judgment, Dr. Dang filed a motion in limine requesting an order limiting the opinions of Brown's expert witness to the opinions set forth in a prior discovery deposition. The court subsequently issued an order restricting the opinions and factual bases to those set forth in the deposition.
. Baptist and Dr. Dang filed renewed motions for summary judgment or alternatively motion to amend judgment. In May, 2000, the trial court granted Baptist and Dr. Dang summary judgment. Brown filed a timely notice of appeal.
DISCUSSION
I
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