The Court of Appeals of Ohio Sixth Appellate District Lucas County (“Ohio Appellate Court”) held in its Decision and Judgment dated May 25, 2018, in an Ohio shoulder dystocia brachial plexus birth injury medical malpractice case, that the trial court “abused its discretion in admitting [the defendant obstetrician’s] testimony concerning other shoulder dystocia deliveries … these other purportedly successful deliveries were not relevant to refute [the plaintiffs’] contention that [the defendant] panicked during [the plaintiff’s] delivery. The trial court erred in failing to exclude this evidence.”
The Ohio birth injury medical malpractice plaintiffs contended that the defendant obstetrician breached the standard of care in delivering their baby, who had shoulder dystocia with the cord wrapped twice around his neck, by applying too much force on the baby’s head, resulting in the most severe stretch injury possible to all five of the baby’s nerve roots, which were stretched and torn to the point of not conducting. The child has no use of his right arm despite multiple attempts to repair the damage.
The plaintiffs’ expert testified during the Ohio birth injury trial that the type of stretch injury suffered by the baby does not occur without the application of force of about 40-50 pounds—about four times the necessary force—and bending of the head 60 degrees away from the effected side. The plaintiffs’ expert testified that excessive lateral traction is the only way this injury could have occurred, and that the baby’s head was titled more than 60 degrees and the defendant applied excessive force to the head.
The plaintiffs’ expert further testified that the standard of care requires an obstetrician to recognize the occurrence of shoulder dystocia, to limit the amount and direction of traction applied, and to apply one or more maneuvers appropriate for the circumstances. Continued pushing will force the baby’s shoulder further into the pelvic bone, increasing risk of injury, so this should be avoided.
The plaintiffs’ expert testified that certain information should be contained in a delivery note where the physician has encountered a shoulder dystocia, including the time the head is delivered; which shoulder was anterior; and what maneuvers were used. This information did not appear in the defendant’s note, and the expert testified that she would expect a physician of the defendant’s experience to provide proper documentation, especially given that one of his duties is to instruct residents.
Over the plaintiffs’ objection, the defendant obstetrician was allowed to testify about three prior instances where he successfully managed shoulder dystocia deliveries without causing injury to the babies. The defendant’s attorney argued that the testimony was relevant to refute the plaintiffs’ contention that the defendant panicked when he encountered shoulder dystocia during the delivery. The defendant testified in detail about three prior deliveries complicated by shoulder dystocia and the specific maneuvers he employed to resolve the condition.
The Ohio birth injury medical malpractice jury returned a defense verdict after which the plaintiffs’ filed a motion for new trial, which the trial court denied, and the plaintiffs appealed.
Ohio Applellate Court Decision
Evid.R. 401 defines “relevant evidence” as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Relevant evidence is generally admissible, whereas “evidence which is not relevant is not admissible.” Evid.R. 402.
The Ohio Appellate Court held that “evidence of other shoulder dystocia deliveries was not relevant and should not have been allowed. In the absence of testimony indicating that [the plaintiff’s] delivery was in all respects similar to these other deliveries (e.g., there was a second impaction at the sacral promontory, a baby with the cord wrapped around his neck twice, and a mother who did not have an epidural, poorly tolerated the pain of delivery, and moved up the bed with her baby’s head protruding from her vagina), that [the defendant] successfully managed these three other shoulder dystocia deliveries does not make it more or less probable that he did not panic and that he properly managed the shoulder dystocia encountered during [the plaintiff’s] delivery.”
The Ohio Appellate Court further held that the defendant “was not free to rebut [the plaintiff’s] assertions with unverifiable information about unrelated prior deliveries involving different facts and circumstances. Simply put, [the defendant’s] testimony regarding all of his successful deliveries involving shoulder dystocia was not probative of the relevant issue: [The defendant’s] demeanor in [the plaintiff’s] delivery room when presented with the unique circumstances at issue in this case. We find that these other purportedly successful deliveries were not relevant to refute [the plaintiff’s] contention that [the defendant] panicked during [the plaintiff’s] delivery. The trial court erred in failing to exclude this evidence.” Furthermore, “[e]vidence that [the defendant] successfully managed shoulder dystocia deliveries in the past would promote an improper inference that he did so in the present case. Evid.R. 403(A) mandated exclusion of the evidence.”
Source Robinson v. Mercy St. Vincent Med. Ctr., 2018-Ohio-2030.
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