A pregnant woman chose to have a natural childbirth at home with the help of a registered nurse midwife and a doula. The baby's head was down; however, unlike the usual presentation, he was facing forward instead of inward, toward the mother's spine. The midwife applied fundal pressure, administered Pitocin, and performed an episiotomy. After approximately 20 hours of laboring at home without progress, the midwife called an ambulance to take the mother to the hospital.
The mother had never been to this hospital before. The labor and delivery team evaluated her and attached a fetal heart rate monitor. After giving the mother an opportunity to push, the doctors determined she would be unable to deliver her baby vaginally. The hospital’s doctors determined that they needed to perform a Caesarian section. The fetal heart rate monitor indicated that the baby was sufficiently oxygenated, so the Hospital's physicians determined that an “emergency” Caesarean section was not required.
The Hospital team took the mother's medical history and drew blood for laboratory testing, including tests to determine whether it would be safe to administer spinal/epidural anesthesia to the mother during the Caesarean section procedure. The blood tests were sent to the Hospital's laboratory on a “stat” basis, meaning they were the “highest” priority and should be completed “as quickly as possible.” The Hospital obtained the mother's consent for spinal/epidural anesthesia, administered medications to reduce the strength of the mother's contractions, and made other pre-delivery preparations.
The laboratory tests were completed within an hour and a half of her arrival at the hospital. The Hospital determined that, based upon the test results, it would be safe to use spinal/epidural anesthesia for the mother's Caesarean section. The anesthesia was administered and the mother was prepared for surgery. The baby was delivered at just over two hours after the mother arrived at the hospital. The baby’s condition at birth was poor. He now suffers from cerebral palsy, retardation, and other disorders.
The baby, by and through his parents, brought a medical malpractice action against the hospital, asserting that a negligent failure to perform timely emergency Caesarian section caused the baby to suffer from cerebral palsy, retardation, and other disorders. The claim also asserted that the Hospital was negligent in performing an urgent Caesarean section, rather than an emergency Caesarean section.
The hospital argued that the midwife was solely responsible for the baby's injuries. Therefore, the baby's injuries occurred a number of hours prior to the delivery and prior to the mother’s arrival at the hospital. Additionally, the hospital argued that the timing in performing the urgent Caesarean section was medically necessary in order to evaluate the effects of the midwife's treatment on the mother. The hospital explained that the delay in receiving blood tests was due, in part, to the mother's lack of cooperation. Finally, the hospital maintained that an emergency Caesarean section was not required because the fetal heart rate monitor indicated that the fetus was being adequately oxygenated.
The parents filed a pre-trial motion in limine seeking to exclude testimony regarding the standard of care applicable to the midwife, and the midwife's alleged breach of that standard of care while treating the mother. The hospital filed an extensive response, arguing that the midwife standard of care, and the midwife's breach of that standard of care, were relevant to the hospital's defense. The hospital's theory was that the hospital was not negligent, nor was it a cause of any injury to the baby. Rather, the hospital contended, the injury was solely caused by the midwife's negligence before the mother ever arrived at the hospital.
In support of its opposition to the motion in limine, the Hospital attached an order from the Maryland Board of Nursing (“the Board”), which suspended the midwife's certification and license to practice as a nurse-midwife. The order provided that the Board had never authorized the midwife to perform home deliveries, and concluded that the midwife had violated the Nurse Practice Act (“NPA”) based upon the care that she provided to the mother and other patients. In particular, as to the care rendered to the mother, the Board found that the midwife violated the NPA during her care of the mother for reasons including, but not limited to, the following: (1) practicing as a CRNM in a home delivery setting without an approved Agreement that includes home births and practicing without a collaborating physician for homebirths; (2) lack of documentation, including labor and delivery records and fetal monitoring strips, regarding the patient's intra-partum course; (3) failing to treat the patient's Group B streptococcus per Center for Disease Control guidelines and lack of documentation that the patient declined and understood the risks of declining antibiotics; (4) performing an episiotomy when the baby's head was not crowning and the baby was at +1 station; (5) administering Pitocin intramuscularly to augment labor and failing to document any fetal monitoring after administration; and (6) using or directing the use of fundal pressure, which is not considered an acceptable practice to hasten vaginal delivery. Accordingly, as a result of the treatment that the midwife provided to the mother and four other individuals, the Board suspended the midwife's certification and license to practice as a nurse-midwife.
Additionally, the hospital attached to its response to the motion in limine an excerpt from its medical expert’s deposition. The doctor determined that when the mother arrived at the Hospital, there was evidence of “uterine tetany” due to the Pitocin administered by the midwife. The doctor explained that, as a result, there was no relaxation in between contractions. Relaxation between contractions is important, because this is when there is re-establishment of blood flow and there is proper oxygen exchange. The doctor concluded that because of the Pitocin injections administered by the midwife, there was an absence of oxygen to the baby which is what ultimately caused damage.
The doctor further observed in his deposition testimony that the baby had a cephalic hematoma, which could not be explained except by trauma, such as pushing on the fundus or by exposing the baby to five hours of second stage labor without making progress. The doctor explained that the baby's head was being banged against the mother’s pelvis for several hours with somebody pushing on the top of the baby, so much so the baby’s head was deformed. Finally, the doctor's deposition testimony provided that fundal pressure was no longer used in labor and deliveries, and that applying fundal pressuring during the second stage of labor in these circumstances constituted a breach of the standard of care.
After holding a hearing, the trial court granted the parents' motion in limine, ruling that there could not be testimony as to what the standard of care was for midwives or that this was a breach of the standard of care. The judge expressed concern about the potential prejudice from the jury feeling there was a third-party here, who was not a party to the action. Accordingly, the trial court concluded that, as to the midwife's conduct, only evidence regarding causation was relevant. The trial court, therefore, limited the hospital to presenting evidence of: (1) the physical actions and conduct of the midwife; and (2) the reactions of the hospital personnel when learning of this conduct.
Following a jury trial, the Circuit Court, Baltimore County, entered judgment for the parents. The hospital filed a motion for new trial, to alter or amend judgment, and for remittitur. The trial court denied the hospital's request for a new trial, reduced the jury's award for lost wages, and reduced the jury's award for non-economic damages in accordance with Maryland’s cap on non-economic damages. The parents appealed, and the hospital cross-appealed.
The Court of Special Appeals of Maryland reversed and remanded holding that the circuit court erred in precluding evidence of the nurse-midwife standard of care, and in precluding evidence of a breach of that standard of care by a nurse-midwife while treating the mother. The court held that (1) as matter of first impression in Maryland, evidence of both negligence and causation attributable to a nonparty was relevant where a defendant asserts a complete denial of liability; (2) evidence of the midwife standard of care, and of nonparty midwife's alleged breach of that standard prior to mother's arrival at hospital, was admissible; (3) the reasons for not joining an individual as a defendant have no bearing on the legal issue of the admissibility of evidence of a nonparty's negligence; (4) improper exclusion of evidence of midwife standard of care and of nonparty midwife's alleged breach thereof was not harmless; and (5) improper admission of evidence that mother was never offered general anesthesia by hospital was prejudicial to hospital.
Evidence of both negligence and causation attributable to a nonparty was relevant when a defendant asserts a complete denial of liability. The court held that the evidence of the midwife standard of care, and the midwife's breach of that standard of care material to causing the baby's injury, was relevant to the hospital's defense that it was not negligent and not a cause of injury. The trial judge’s rationale did not recognize the possibility that the midwife breached her standard of care, and that the breach was the sole cause of the baby's injuries. This was precisely the defense advanced by the hospital at trial. Thus, the relevant inquiry on appeal was whether evidence of a non-party's negligence was relevant to a defendant's complete denial of liability.
Evidence of the midwife standard of care, and of nonparty midwife's alleged breach of that standard prior to mother's arrival at hospital, was admissible. The jury was given a materially incomplete picture of the facts. Because the hospital was precluded from presenting any evidence that the midwife breached the standard of care and was therefore negligent, it follows that the jury was left to wonder whether anyone other than the hospital—the sole defendant— could have caused the baby's injuries.
The reasons for not joining an individual as a defendant have no bearing on the legal issue of the admissibility of evidence of a nonparty's negligence. Defendants may assert the “empty chair” defense without regard as to why an individual was not a party to the action. The parties' reasons for not joining the midwife as a defendant have no bearing on the evidentiary issue presented.
The improper exclusion of evidence of the midwife standard of care and of the nonparty midwife's alleged breach thereof was not harmless. The effect of the trial court's ruling was that the plaintiff was permitted to argue to the jury that the midwife's treatment was appropriate. The hospital, however, was precluded from arguing that the midwife's actions were negligent. Consequently, the only evidence of negligence before the jury was the alleged negligence of the hospital. The jury was left to wonder whether anyone other than the hospital could have caused the baby's injuries. The jury was provided a materially incomplete picture. The hospital was unnecessarily constrained in presenting its defense that the midwife was the sole cause of the child’s brain damage.
The improper admission of evidence that the mother was never offered general anesthesia by the hospital was prejudicial to the hospital. Hospitals are not required to obtain informed consent to administer general anesthesia if an emergency Caesarian section is required. If an emergency Caesarean section was required, the hospital was obligated to administer general anesthesia immediately and deliver the baby. Accordingly, evidence of whether the mother was offered general anesthesia was not relevant to whether the hospital breached its standard of care by allegedly failing to convert to an emergency Caesarean section. The evidence presented by the plaintiff focused on whether the mother was given a choice of anesthesia and whether a reasonable patient would have accepted the risks of such treatment in order to save her child. Since the hospital had no obligation to obtain informed consent to administer general anesthesia for an emergency Caesarean section, evidence of whether the mother was offered general anesthesia had no relevance to the plaintiff's negligence claim. Whether the plaintiff patient had given informed consent to a procedure generally is irrelevant and carries a great potential for the confusion of the jury in an action wherein only medical malpractice was pleaded.
See: Martinez ex rel. Fielding v. The Johns Hopkins Hospital, 2013 WL 3337277 (Md.App., July 3, 2013) (not designated for publication).
See also Medical Law Perspectives, December 2012 Report: When Urgency Leads to Errors: Liability for Emergency Care
See also Medical Law Perspectives, April 2013 Report: Complementary and Alternative Medicine: Practitioner Liability