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O'Donnell v. HCA Health Services of New Hampshire


Argued: June 15, 2005

This appeal follows a jury trial awarding the plaintiffs, Derek and Melissa O'Donnell, individually and as parents and next friend of Ashley O'Donnell, a minor, damages for medical malpractice, negligence, and negligent infliction of emotional distress, stemming from labor and the delivery of Ashley in January 1999. We affirm in part, reverse in part, vacate in part, and remand.

On appeal, the defendants, HCA Health Services of New Hampshire, Inc. d/b/a Parkland Medical Center, Parkland Physician Services, Inc., Dr. Monelle Bisson, and Dr. Patricia Chaudhuri, argue that the Trial Court (McHugh, J.) erred by: (1) failing to set aside the plaintiffs' verdicts for bystander emotional distress damages; (2) allowing plaintiffs' expert to provide unreliable causation testimony; (3) failing to set aside the verdicts for failure of the jury to find comparative fault on the part of Melissa O'Donnell; (4) referring to potential liability insurance in its jury instructions; (5) failing to non-suit portions of the plaintiffs' case after the opening statement; and (6) failing to grant a mistrial after the plaintiffs' expert referred to Melissa O'Donnell's cesarean section when she laterhad another child.

The jury could have found the following relevant facts: Ashley O'Donnell, the plaintiffs' second child, was born in January 1999. Complications arose during the delivery as a result of which Ashley suffered a severed brachial plexus nerve injury. Both plaintiffs witnessed the birth, including the obstetrical emergency resulting in the nerve injury.

The delivery of plaintiffs' first child was performed by Patricia Miller, M.D., in 1991. During that delivery, complications arose as a result of shoulder dystocia, a complication in which the baby's shoulder contacts the pubic bone, preventing delivery. Shoulder dystocia is a serious obstetrical condition that could result in profound injury or death if the baby is not delivered quickly. In the post-delivery medical records, Dr. Miller noted the presence of severe shoulder dystocia, and recommended against future vaginal deliveries by Melissa O'Donnell.

For her second pregnancy in 1997, which ended in miscarriage, Melissa established obstetric care with the defendant, Parkland Physician Services, Inc. At that time, she advised her treating physician at Parkland of general complications during her first pregnancy and signed a medical release authorization allowing them to obtain the medical records of her prior delivery. However, Parkland Physician Services never obtained the records. Nor, during Melissa's third pregnancy, did they seek to obtain the records even though Melissa suffered from early-stage preeclampsia and pre-natal tests indicated that Ashley would be larger than the plaintiffs' first child.

On January 13, 1999, Melissa was admitted to the Parkland Medical Center for a planned induction of labor and delivery. During delivery, shoulder dystocia again arose as a complication. As the labor progressed, Melissa requested a cesarean section delivery due to the difficulties she was experiencing. Melissa's mother, Jane Sawyer, also present in the delivery room, spoke with the delivery doctor and expressed concern for the extensive clotting her daughter was experiencing, and advised the doctor of Melissa's previous difficulties. The doctor attempted several maneuvers to deliver Ashley, none of which were successful. After these attempts failed, the doctor performed a fourth degree episiotomy and delivered Ashley. The episiotomy required protracted reparative surgery for Melissa. Later pediatric records and neurological testing revealed Ashley suffered a near avulsion, or complete

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