In its decision filed on February 4, 2019, the Supreme Court of the State of Delaware (“Delaware Supreme Court”) affirmed a $3 million Delaware birth injury medical malpractce verdict involving a brachial plexus injury suffered by the baby during delivery.
The Underlying Facts
The plaintiff’s Delaware medical malpractice lawsuit alleged that the defendant obstetrician (OB) negligently applied excessive lateral traction during childbirth with such force that the stretching of the baby’s head during delivery caused a permanent right brachial plexus injury. The baby’s right shoulder became lodged under the mother’s pubic bone during delivery, which is a life-threatening condition known as shoulder dystocia.
The defendant OB testified that due to the baby’s shoulder dystocia, he used what he considered to be a “unique” method of delivery and noted in his records that he had “not applied any traction” to the baby. The defendant OB and his experts argued that the defendant OB was not medically negligent during the delivery based on the American Congress of Obstetricians and Gynecologists (“ACOG”) Monograph as scientific evidence that the baby’s injury was the result of maternal endogenous forces during labor (i.e., the mother pushing during delivery) and not attributable to the defendant OB’s actions.
Irrespective of whether or not the defendant OB applied excessive force during delivery, the evidence during trial established that during delivery, the force that occurred was sufficient to cause both transient and permanent nerve damage to the baby’s right arm. The baby subsequently had two major surgeries to repair the damaged nerves but his injury left him permanently impaired: his right arm is visibly shorter than his left, which prevents him from doing certain activities, including riding a bicycle and playing his favorite sports. Medical testimony established that his physical deficits will carry into his adult life.
The Delaware medical malpractice jury returned its verdict in favor of the plaintiff in the amount of $3 million. The defendant OB appealed.
The defendant OB argued that the testimony of one of the plaintiff’s experts was based on an impermissible res ipsa loquitur theory (i.e., that the presence of the injury alone meant that the defendant OB breached the standard of care and caused the injury). In particular, the defendant took issue with the plaintiff’s expert’s opinion that, because the baby suffered a permanent (as opposed to a transient) brachial plexus injury, the defendant must have applied excessive lateral traction and, therefore, breached the standard of care. The defendant’s argument relied upon the ACOG Monograph, which the defendant contended established that the baby’s permanent injury could have been caused by maternal forces.
The Delaware Supreme Court affirmed the trial court’s determination that the expert’s opinion was admissible, and not an impermissible res ipsa loquitur theory, because his opinion that the permanency of the injury established that the defendant OB breached the standard of care was supported by multiple, reliable medical sources. The expert explained that he disagreed with the ACOG Monograph study upon which the defendant heavily relied because the study did not fully differentiate between a permanent versus transient injury. The trial court further stated, “there was evidence in this case that [the expert’s] opinion was based upon medical records, eyewitnesses’ accounts of the delivery, and all other information an expert would ordinarily rely upon in his field, including ruling out other causes.” The Delaware Supreme Court added that the expert relied upon his nearly thirty years of experience as an obstetrician and gynecologist in forming his opinion that, absent other causes not relevant here, excessive lateral traction during delivery caused the baby’s permanent brachial plexus injury (i.e., the expert’s testimony established that he was qualified as an expert and familiar with the degree of skill ordinarily employed in obstetrics from his years of experience in the field).
The Delaware Supreme Court also affirmed the admissibility of the testimony of the surgeon who performed the two repair surgeries on the baby. The surgeon testified based on twenty years of experience conducting surgeries to repair nerves damaged during birth and on his interactions with and observations of the baby before and during the baby’s two surgeries. He first operated on the baby six months after the baby was born and, at that time, identified two nerves that had been torn and would never regenerate or recover. Because of the permanency of the injury, the surgeon formed the opinion that the cause of the baby’s torn nerves was excessive lateral traction applied during birth. The Delaware Supreme Court held that the surgeon’s opinion was sufficiently based upon the facts of the case to satisfy Rule 702, and the surgeon’s testimony was admissible (and not a res ipsa loquitur opinion) for the same reasons it held the plaintiff’s expert’s opinion admissible.
Source Wong v. Broughton, No. 133, 2018.
If you or your baby suffered a birth injury (or worse) during labor and/or delivery in Delaware or in another U.S. state, you should promptly find a Delaware birth injury lawyer, or a birth injury lawyer in your state, who may investigate your birth injury claim for you and represent you and your child in a birth injury medical malpractice case, if appropriate.
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