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England v. Costa11/10/2005
04-1192In this medical- malpractice suit, our court is asked to determine when it is appropriate to give a modified form of AMI Civ. 4th 602, which deals with the right to assume others will use ordinary care and obey the law.
Appellant Daphne England became pregnant in 1997; her due date was December 24, 1997. That date came and went, and England had not gone into labor, so her obstetrician, appellee Dr. Emil Costa, asked her to come back to see him on December 31, 1997. England was still not showing signs of delivery by that date, so Dr. Costa scheduled a nonstress test for January 2, 1998. However, England came to the hospital with contractions early in the morning on January 1, 1998, and she was hooked up to a fetal monitor for a number of hours. At 4:10 a.m., the monitor strip showed that the baby had a baseline heart rate of around 120, within normal ranges. At 4:16 a.m., however, the baby's heart rate dropped down, went back up, and then dropped back down again. This deceleration, or slowing of the heart rate, lasted about four minutes. The nurses attending England did not inform Dr. Costa of the deceleration.
Dr. Costa arrived at the hospital around 8:30 a.m. on January 1, 1998, at which time he reviewed the monitor tracing. His impression of the strip was that England was having mild irregular contractions. Despite the earlier deceleration, the activity reflected on the strip was reassuring and "within a normal range," and so Dr. Costa sent England home to wait one more day.
England returned to the hospital on January 2, 1998, at which time her cervix was only dilated to one centimeter. Dr. Costa performed another nonstress test, which showed lots of accelerations and good variability in the baby's heart rate. Because of this good result, Dr. Costa decided to wait another forty-eight hours to see if England would go into labor; if not, he would have her return to the hospital on January 4, 1998, to induce labor.
England returned to the hospital with irregular contractions around 10:30 a.m. on January 4. Her pregnancy was at forty-one weeks and four days, but she was still only dilated to one centimeter. She was again hooked up to a fetal monitor, which showed a lot of accelerations, good variability, and no significant decelerations. Dr. Costa came to the hospital around 12:30 or 12:40 p.m. and reviewed the monitor strips; he then applied Cytotec, a drug intended to induce labor. Afterwards, he watched England for a period of time, then left the hospital. England experienced a deceleration around 1:30 p.m., but the nurse on duty failed to tell this to Dr. Costa. Dr. Costa again returned to the hospital about 6:00 p.m. and reviewed the most recent hour and a half of the monitor strip, which looked normal. He also asked the nurse, Missy Barham, if anything had happened after he last left; despite knowing about the earlier deceleration, Barham said, "no."
As of 6:00 p.m. on January 4, 1998, England had dilated to about one-to-two centimeters; the fetal heart rate was 110 to 120; there were no decelerations at that time; England was having contractions every two to three minutes; and there was no distress. Based on this information, Dr. Costa decided to let England's labor move forward, as opposed to performing a cesarian section. Dr. Costa went to bed around 9:30 or 10:00 p.m. that night. Before going to bed, he called the hospital and left orders that, if England did not go into labor by 3:00 or 3:30 a.m., he wanted to start her on Pitocin to induce labor.
At 2:21 a.m., England reported to the nurses that she felt the need to have a bowel movement. The nurse's notes from that time reflected that the fetal heart rate was 120, which
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