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Morrell v. Finke11/3/2005
nsport for testing. The labor and delivery summary signed by Dr. Finke indicates that she took cord blood from Madeline to test it for blood type and compatibility with Donna's blood, not to test it for pH. Drawing umbilical cord arterial blood takes more than one minute, yet Dr. Finke wrote in her labor and delivery summary that she took this blood during the same minute that Madeline was born, 8:06 p.m. Type and compatibility testing, however, may be accomplished with a blood sample drained from the cut and clamped cord; a procedure that may be performed easily in less than a minute. Consequently, Plaintiffs asserted at trial that the 7.32 pH result was inaccurate because it was performed on mixed arterial and venus cord blood intended to be used for type and compatibility testing, not pH testing. Dr. Finke's expert, Dr. VanDorsten, agreed that venus blood is "meaningless" in determining pH; pH must be determined from arterial blood. If the cord gas sample had been properly drawn from the cord's artery, Nurse LaMont "would expect it to be a lot lower than 7.2."
According to Dr. Ater, Dr. Tisdell's pH reading of 7.219 is inconsistent with Madeline having a 7.32 pH at birth; after Madeline had been bagged and given one hundred percent blowby oxygen for twenty-four minutes, her pH level should have risen, not gone down. Dr. Ater opined that, considering the extensive resuscitation efforts performed on Madeline during the first twenty-four minutes of her life and "reasoning backwards," or "extrapolat back to birth," Madeline's pH at birth was between 6.9 and 7.1, "in the range where so many of these studies show that asphyxia occurs." Finally, Dr. Ater believed that although the ACOG bulletin criteria were useful, they were not exclusive and should not be used to rule out hypoxia because " nder these criteria all you have to fudge or torque, the only things that have to be altered would be missing blood gas or an erroneous blood gas and generous Apgar score." Dr. Ater pointed out that the author of an authoritative textbook agreed with his position that the ACOG's bulletin criteria are advisory only, not exclusive.
3. Dr. Finke--Evidence of Negligence and Cause-in-Fact
Dr. Finke argues that there is a "fatal gap" in the chain of causation because Dr. Ater's opinions on causation were never linked to any breach of the standard of care constituting negligence by Dr. Finke as testified to by Dr. Rice. As discussed below, the record before us contains evidence that Dr. Finke's negligence in failing to perform a C-section proximately caused Madeline's injuries.
Dr. Rice testified, as outlined previously, that based on the fetal heart monitor strip, charts, and other hospital records, Dr. Finke deviated from the standard of care of an obstetrician by failing to perform a timely C-section and by proceeding with a vaginal delivery. Dr. Rice explained that the standard of care required Dr. Finke to prepare for a possible C-section after the prolonged decel at 7:15 p.m., and that Dr. Finke violated the standard of care by not preparing at that time for a possible C-section. Dr. Rice testified that by 7:27 p.m. the standard of care required a decision to perform a C-section and that Dr. Finke violated the standard of care by not deciding to perform and by not performing a C-section at that point and by then proceeding with a vaginal delivery.
According to Dr. Ater, the failure to perform a C-section resulted in a vaginal forceps delivery, which proximately caused the injuries sustained by Madeline. Dr. Ater testified that Madeline lost her reserves based on the cumulative hypoxic ischemic insults occurring from about 5:10 p.m. onward so that she had inadequate reserves
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