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Burke v. Scaggs1/27/2005
Argued October 19, 2004
The legal issue presented in this matter is whether a plaintiff in a medical malpractice action fails to establish a prima facie case when his experts differ as to the applicable standard of care. We hold that a discrepancy between experts as to the standard of care will not defeat the plaintiff's prima facie case for malpractice. We further hold that by failing to request a special verdict form, the appellant has forfeited the right to assert that the individual jurors may have relied on different theories of liability in reaching their verdict for the plaintiff. We therefore affirm the judgment entered on the jury's verdict.
I.
This case resulted from injuries which occurred during the birth of appellees' daughter, Haley, on June 27, 1998. The appellant, Dr. Brendan F. Burke, was the attending obstetrician. During the birthing process, a condition known as "shoulder dystocia" presented itself. This condition occurs when the baby's anterior shoulder becomes stuck behind the mother's pubic bone after the head has been delivered. Mr. Scaggs, who was present for the delivery, testified that at the time this complication was discovered, a pall came upon the delivery room, and the situation became tense. Dr. Burke maintains that, upon discovering the complication, he applied "gentle traction" to Haley's head and shoulder area, employed the "McRoberts maneuver," and then applied suprapubic pressure to Mrs. Scaggs.
Haley now suffers from severe brachial plexus injuries.
Haley has undergone a number of surgeries in an attempt to assuage the harsh effect of these injuries. Nevertheless, Haley remains physically handicapped for life, unable to supinate her hand so as to undertake those little things in life which many take for granted: the ability to button one's own clothing, hold a cup, use a toothbrush, or tie one's shoes.
The Scaggs filed suit against Dr. Burke in 2000, alleging that he was negligent in delivering Haley. Although Dr. Burke was alleged to have been negligent in a number of ways, he challenges only the sufficiency of the expert testimony on whether his use of traction in delivering Haley fell below the applicable standard of care. In support of their claim that the doctor's use of traction was negligent, the Scaggs presented two expert witnesses to testify as to the applicable standard of care. The first, Dr. James Anderson, had been a board-certified practicing gynecologist and obstetrician for over a third of a century. Dr. Anderson testified that Dr. Burke had violated the standard of care "by not going through the proper maneuvers to disimpact the shoulder and by putting traction on the head." Dr. Anderson also maintained that "traction to disimpact the shoulder is below the standard of care. It is not a maneuver to be used to resolve shoulder dystocia." Even though the medical records from the birth noted that only "gentle" traction had been employed, Dr. Anderson opined that "gentle traction becomes excessive in this kind of a setting without the obstetrician even realizing it. No traction is appropriate."
The plaintiffs' other expert witness as to the standard of care was Dr. James O'Leary, who is also board-certified in obstetrics and gynecology. Although he had retired from the active practice of medicine, Dr. O'Leary continued to teach obstetrics, and has published a book on shoulder dystocia. Dr. O'Leary was of the opinion that Haley's injuries were the result of "excessive traction or pulling on Haley's head after the head had been delivered and the shoulder was stuck." Dr. O'Leary was more permissive than Dr. Anderson as to the use of traction during delivery. He would allow ge
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