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England v. Costa11/10/2005
indicated that the baby was still doing well. However, according to Dr. Costa's testimony, the urge England felt was more than likely the baby's head putting pressure on her pelvis. Dr. Costa averred that the nurses should have conducted a pelvic examination and called him to return to the hospital. No pelvic exam was performed until 2:40 a.m., at which time the nurses noticed that England's cervix had dilated to nine centimeters.
However, Dr. Costa did not hear from the hospital until 2:51 a.m., when Nurse Everett called to say the baby's heart rate was down and was not coming up. Dr. Costa immediately called for an emergency cesarian section and returned to the hospital, but when he arrived at the operating room, no surgical staff was present. Dr. Costa ended up performing an emergency cesarian section with only one nurse present to assist him. The baby, Morgan England, was delivered at 3:24 a.m., January 5, 1998, with cerebral palsy, which, according to England's expert witness, was most likely caused by a "significant hypoxic insult in the time immediately prior to the emergency cesarean section."
England and her husband, Larry England, sued Dr. Costa and the hospital. The Englands eventually settled with the hospital for $2.5 million, and the case proceeded to trial against Dr. Costa alone; the Englands informed the jury of the settlement and admitted that the negligence of the hospital and the nurses was a proximate cause of their damages. Just prior to submitting the case to the jury, the parties and the court struggled to agree on whether or not to give a modified form of AMI Civ. 4th 602 to the jury.
As written, AMI Civ. 602 provides that " very person using ordinary care has a right to assume, until the contrary is or reasonably should be apparent, that every other person will [use ordinary care] [obey the law]. To act on that assumption is not negligence."
The Englands argued that the instruction had only been applied in automobile- accident cases in which contributory negligence was an issue. The trial court ultimately rejected the Englands' argument and gave a modified version of the instruction to the jury, as follows:
Every physician using ordinary care has the right to assume, until the contrary is or reasonably should be apparent, that every other medical care provider will use ordinary care. To act on that assumption is not negligence. As I have used the term ordinary care here, I mean that degree of care required of all physicians or medical care providers, as already explained in my definition of negligence.
After deliberating, the jury returned a verdict in Dr. Costa's favor on February 26, 2004.
The Englands filed a motion for new trial on March 26, 2004, in which they alleged that the trial court improperly instructed the jury. The effect of the erroneous instruction, they contended, was that the jury was urged toward the defense's theory of the case and rendered a verdict that was contrary to the preponderance of the evidence. After a hearing on April 13, 2004, the trial court denied the Englands' motion for new trial, noting that while the issue was one of first impression, and there were no reported Arkansas cases in which the instruction had been given in a medical-malpractice case, the court believed it was a proper instruction. The Englands filed a timely notice of appeal on April 14, 2004.
In their sole point on appeal, the Englands argue that, as a result of the erroneous charge to the jury, the verdict was contrary to the preponderance of the evidence. In their complaint, the Englands alleged that Dr. Costa was negligent in failing to properly evaluate the entirety of the fetal m
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