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Morrell v. Finke11/3/2005
Dr. Ater explained that Madeline had been "set up" for the injuries she suffered during the forceps delivery by her lack of adequate oxygenation from about 5:10 p.m. through her birth. Dr. Ater testified that "in a normal patient who has forceps, you don't have this serious problem[,]" but "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 . . . PVL." Dr. Ater explained, "I don't think one - - the forceps alone would have done it [caused Madeline's PVL]. I think that the forceps was a straw that broke the camel's back." In other words, the evidence shows that if Madeline had been adequately oxygenated throughout the day prior to the vaginal forceps delivery, that delivery alone would not have caused her brain injury; she would have had sufficient fetal reserves to sustain her through it. Thus, evidence exists that the nurses' unchallenged standard of care breaches--failure to accurately assess the fetal heart monitor strip to recognize Madeline's increasing stress and inadequate oxygenation, failure to accurately intervene based on the problems documented on the strip to ensure Madeline's adequate oxygenation, and the failure to provide timely care to Donna to ensure Madeline's oxygenation, including the failure to prepare Donna for a C-section--constituted a substantial factor in bringing about Madeline's brain injury and without which Madeline's brain injury would not have occurred; Dr. Ater specifically testified that the forceps delivery alone would not have caused Madeline's injury if she had been adequately oxygenated. Thus, more than a scintilla of evidence exists under the third Lenger prong--a probable causal relationship shown by expert testimony--that the nurses' unchallenged standard of care breaches as testified to by Nurse LaMont were a cause-in-fact of Madeline's injury. Lenger, 455 S.W.2d at 706; accord Lee Lewis, 70 S.W.3d at 784 (holding more than a scintilla of evidence existed that defendant's failure to require workers to use independent lifelines was substantial factor in causing plaintiff's death); see also Long v. Mo. Delta Med. Ctr., 33 S.W.3d 629, 637-38 (Mo. Ct. App. 2000) (holding evidence similar to present evidence was sufficient to support jury's "but/for" causation finding against labor and delivery nurse despite contention that her "liability . . . ends when the physician assumes control of his patient").
Additionally, the evidence establishes that the nurses negligence was a cause-in-fact of Madeline's injuries under the second Lenger prong--expert testimony providing scientific principles allowing the fact finder to establish a traceable chain of causation from the condition back to the event. See Lenger, 455 S.W.2d at 706; Marvelli, 100 S.W.3d at 470. Madeline's current condition is caused by her PVL, according to pediatric neuroradiologist Dr. Jones. Madeline's PVL was caused by lack of adequate oxygenation during the forceps delivery, according to pediatric neurologist Dr. Ater. Madeline's lack of adequate oxygenation during the forceps delivery occurred, according to Dr. Ater, because she had been experiencing repeated, increasingly severe, hypoxic ischemic insults for hours, throughout Donna's labor. According to Nurse LaMont, the standard of care required the nurses to accurately assess the fetal heart monitor strip and to ensure that Madeline was adequately oxygenated; they were negligent by failing to intervene based on the oxygenation problems documented on the strip. Thus, a traceable chain of causation, provided by expert testimony, exists connecting the nurses' unchallenged standard of care breaches to Madeline's brain injury. In support of
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