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Morrell v. Finke11/3/2005
and oxygenation to sustain her through the vaginal forceps delivery; Madeline's brain damage occurred "during the relatively prolonged forceps delivery . . . nd it wasn't just a very short one minute of time the way you deliver a regular baby. That was about 10 or 15 minutes worth." Dr. Ater repeatedly explained that the vaginal forceps delivery "was the straw that broke the camel's back." He testified,
We know that she [Madeline] had significant mechanical injury [from the forceps]. The chart is full of documentation that people think that the forceps delivery caused the edema of the skull, the bleeding, the laceration of the ear.
They were even so concerned about the changes in the shape of the skull that they were concerned about a possible skull fracture and they had consultants consulting about a possible skull fracture.
It didn't turn out, but the point is, there was substantial amount of molding and I think that the molding may have caused some localized changes. Again, I think that in a normal patient who has forceps, you don't have this serious problem when forceps are appropriately applied.
However, in this patient where there was already a hypoxic-ischemic pre-existing insult, by adding this additional mechanical traumatic insult, I think that the consequence to the brain was that the blood supply in that area that was getting pushed on decreased and it set the brain up for this PVL. And it all fits with what we see. It fits with the MRI scan. It fits with her clinical status.
I believe this occurred during the latter ten minutes of birth. I believe that at that point the child lost her reserves and in addition to the cumulative damage of all the hypoxia and ischemia she had, then she lost blood volume due to bleeds, and I believe it was a process that didn't occur exactly at one specific minute, but it was getting worse and worse and worse, and I believe the injury occurred during the process of delivery, the instrumented forceps delivery when the trauma occurred.
There is nothing else that fits this. This just fits hypoxic ischemic encephalopathy so perfectly that it's--I cannot think of anything that comes even close to explaining her problem given all of . . . the clinical symptoms, the laboratory symptoms. We know the cause. We know documented evidence of hypoxic ischemia. This whole thing fits so well with hypoxic ischemic encephalopathy that I can't think of any other diagnosis that really makes sense.
It is undisputed that if Dr. Finke had decided to perform a C-section at 7:27 p.m. in compliance with the standard of care, as testified to by Dr. Rice, Madeline would not have experienced the prolonged vaginal forceps delivery that Dr. Ater concluded proximately caused her brain damage.
Dr. Finke points out that at 7:27 p.m. she was not in Donna's room; she was across the hall delivering another baby. She claims that no expert testimony exists as to the standard of care when she returned to Donna's room at 7:35 p.m. But Dr. Rice testified that from 7:27 p.m. onward, Madeline was so "stressed" that the standard of care from that point forward "absolutely" required a C-section to avoid further stressing her through a vaginal delivery. Dr. Rice testified that at 7:42 p.m. the standard of care dictated that a C-section, which already should have occurred, be performed immediately. Therefore, the record does contain expert testimony concerning the standard of care for Dr. Finke from 7:27 p.m. onward, including 7:35 p.m.
Thus, considering the evidence and inferences favorable to the jury's negligence and proximate cause findings concerning Dr. Finke that a reasonable juror could credit
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