A boy was born around midnight at a medical center. After giving birth, the boy’s mother was moved to a regular hospital room. The boy was brought to her room and placed in a bassinet beside her bed. Shortly thereafter, the mother laid him down on her bed to change his diaper. She noticed that he was blue. The mother picked up her son and handed him to a woman in the hall, who she assumed was a medical center nurse. This woman, who was never identified, but who the medical center believed to be a nurse’s aide, took the boy down the hall to the nursery. About a minute later, another hospital employee emerged from the nursery and told the mother that the boy was fine. At that time, no one informed her that the unidentified nurse’s aide administered back blows to her son.
That morning, when the boy was around eleven hours old, a registered nurse conducted a newborn assessment. She noted on his chart that his skin was normal, and his head and neck were normal. However, she also noted the existence of a cephalohematoma (temporary swelling) and bruising on his head.
The registered nurse in charge of the nursery that afternoon was advised by the nurse’s aide that the boy had turned blue and she had delivered back blows for several seconds. The registered nurse noted this incident in the boy’s chart.
A nurse practitioner examined the boy. She noted that his vitals were stable and his color was pink. He appeared alert and active. His front fontanel was soft and flat. About an hour after the examination, the boy began to be jittery and twitch.
The morning of the day after he was born, the boy suffered a major seizure and was placed on a ventilator. He was transferred to the neonatal intensive care unit (NICU). A complete assessment of the boy in the NICU revealed that the back of his head was bruised. His fontanel was full and bulging. He was later diagnosed with a brain injury caused by an intraventricular hemorrhage.
The boy and his mother filed a medical negligence action against the medical center. The complaint alleged that the medical center was negligent in the care it provided the boy hours after his birth. The complaint asserted that the administration of back blows caused the intraventricular hemorrhage. The complaint further alleged that as a direct and proximate result of the negligence, the boy sustained severe and permanent injuries, including significant cognitive and neurologic deficits.
At trial, the registered nurse in charge of the nursery the afternoon after the boy was given back blows, testified that applying too much force through back blows could possibly injure a baby. She also testified that the nurse’s aides were responsible for feeding the babies and housekeeping duties. The nurse’s aides were expected to call for more experienced help whenever there was a problem.
A retired medical center nurse’s aide testified about the responsibilities of a nurse’s aide at the medical center. She testified that nurse’s aides generally assisted with the feeding, bathing, and cleaning of the babies. She further testified that if back blows were to be administered to a baby, it was the nurse’s responsibility to do back blows, not a nurse’s aide’s responsibility. She said that the aides were not trained to administer back blows. If a nurse’s aide needed help with a baby who turned blue, the aide would find a doctor or nurse. There were nurses on the unit with the nurse’s aides. However, in an emergency situation, including a baby found blue, anyone could give back blows.
The nurse practitioner who examined the boy testified that nurse’s aides were supposed to seek help if they had a concern about an infant. The medical center’s counsel asked the nurse practitioner if it was appropriate for nurse’s aides to deliver back blows to provide stimulation to an infant who has turned blue. The boy and his mother’s counsel objected to this question. The Cuyahoga County Court of Common Pleas immediately sustained the objection. Not long thereafter, the medical center’s counsel asked the nurse practitioner about the nurse’s aide’s testimony. Specifically, counsel asked whether the nurse practitioner heard the nurse’s aide testify that in the case of an emergency, a nurse’s aide can give back blows. The boy and his mother’s counsel objected. The trial court overruled that objection. The nurse practitioner answered yes. She explained that nurse’s aides must do something to stimulate a blue baby and back blows are the first things they should do.
An associate clinical professor of pediatrics testified for the boy and his mother. He testified that the boy sustained injuries from the back blows, and that this trauma eventually led to the hemorrhage in his brain.
A neurosurgeon at the medical center testified that he treated the boy in the NICU. He stated that it would never be appropriate for a healthcare provider to deliver back blows to a child so vigorously that it caused bruises. He stated that such practices would be below the standard of care. He explained that the boy sustained a germinal matrix bleed, which most likely occurred prior to any medullary thrombosis. The neurosurgeon stated it was possible that the germinal matrix could have ruptured at or about the time of the back blows. He explained that an increase in cerebral blood flow or blood pressure could induce a germinal matrix hemorrhage. Also, the neurosurgeon testified that a germinal matrix bleed could have been caused by heavy handed back blows.
The boy and his mother’s expert neurologist testified that the boy sustained damage to his germinal matrix, which is an extremely fragile portion of the baby’s brain. He testified that the back blows caused an increase in his heart rate and blood pressure, which caused bleeding in his brain. He further testified that the boy suffered a germinal matrix hemorrhage, which ruptured and expanded into his brain. The neurologist opined that the boy would have been neurologically normal if he had not received the back blows from the unidentified nurse’s aide.
The medical center argued that the boy’s ventricular hemorrhage was caused by a vein thrombosis (blood clot), which was unrelated to the back blows. The medical center additionally argued that the boy’s bruising existed before any back blows were administered and the blue episode justified the administration of back blows.
In its defense, the medical center called a professor of pediatrics, a pediatric neurologist, a pediatric neuroradiologist, and a professor of pediatric medicine. The professor of pediatrics testified that the boy had a blood clot, which caused the brain bleed. The brain bleed, in turn, caused a seizure, which manifested itself as a blue spell. He attributed the hemorrhage to a possible coagulopathy. He explained that the clot caused the blood to backup and rupture into the ventricle and the clot precipitated the chain of events that led to the boy’s brain injury.
The pediatric neurologist agreed with the professor of pediatrics’ explanation and testified that the boy was born with a blood clotting disorder (coagulopathy), which caused the venous thrombosis (blood clot) and produced the hemorrhage. He further testified that the back blows did not cause the boy’s brain hemorrhage.
The pediatric neuroradiologist reviewed the imaging studies and concluded that a pre-existing coagulopathic state was responsible for the boy’s brain injury. He did not see any evidence of trauma from the back blows or any excessive force.
The professor of pediatric medicine testified that he observed clots in the medullar veins in the boy’s CT and ultrasound scans. He testified that these clots can cause the capillaries and veins to burst. He did not believe that the back blows caused the hemorrhage.
Over the son and his mother’s objection, the trial court read the following instruction to the jury:
In determining whether ordinary care was used, you must consider whether [the medical center’s] nursing assistant should have foreseen under the attending circumstances that the natural and probable result of an act or omission on her part would cause some injury to [the boy].
The test[ ] for foreseeability is not whether the nursing assistant should have foreseen the injury in its precise form, but whether in light of all the circumstances, the reasonable, prudent person would have anticipated that an injury was likely to result to someone from their acts or omissions.
The jury found in favor of the medical center. The trial court entered a verdict in favor of the medical center.
The Court of Appeals of Ohio, Eighth District, Cuyahoga County, affirmed. The court held that the trial court did not abuse its discretion in allowing the nurse practitioner’s testimony as to the appropriateness of the aide’s administration of back blows, the trial court did not abuse its discretion when it denied the boy and his mother’s motion for a new trial based on the medical center’s violation of the separation of witnesses order, the foreseeability jury instruction was proper, and the jury’s finding that the unidentified nurse’s aide complied with the standard of care was not against the manifest weight of the evidence.
The trial court did not abuse its discretion in allowing the nurse practitioner’s testimony as to the appropriateness of the aide’s administration of back blows. The nurse’s aide testified that nurse’s aides were not trained to give back blows, but could give back blows in an emergency situation, such as a blue baby. Several witnesses testified that a blue baby could constitute an emergency situation. Two doctors and two nurses additionally testified that back blows were appropriate in the boy’s situation.
The trial court did not abuse its discretion when it denied the boy and his mother’s motion for a new trial based on the medical center’s violation of the separation of witnesses order. The trial court found that the medical center violated the separation of witnesses order by giving the pediatric neuroradiologist the exhibits used by another medical expert. The son and his mother argued that the medical center also violated the separation of witnesses order when the professor of pediatrics allegedly reviewed the trial deposition testimony of the professor of pediatric medicine. The trial court did not find a violation in the second instance. The court agreed with the trial court’s decision. Because the professor of pediatric medicine had a broad understanding of the boy’s situation and reviewed multiple expert reports independently referencing the boy’s jitteriness and seizures, the court did not find that the professor of pediatrics had information that he otherwise would not have known.
The foreseeability jury instruction was proper. There was a factual dispute as to whether the back blows caused the boy’s injuries and whether the medical center knew or should have known of the risk of harm. Therefore, there was a question for the jury regarding the foreseeability of the risk of harm.
The jury’s finding that the unidentified nurse’s aide complied with the standard of care was not against the manifest weight of the evidence. The three nurses who testified all agreed that a blue baby could potentially be a life-threatening condition and stimulation such as back blows was appropriate. The nurse’s aide testified that while nurse’s aides were not trained to give back blows, in an emergency situation, such as a blue spell, it was appropriate to give back blows to help the baby. The medical center’s medical experts provided an alternative explanation for his brain injury.
The Court of Appeals of Ohio, Eighth District, Cuyahoga County, affirmed the trial court’s denial of the boy and his mother’s motions after a jury found in favor of the medical center.
See: Cox v. MetroHealth Med. Ctr. Bd. of Trustees, 2015 -Ohio- 2950, 2015 WL 4506883 (Ohio App. 8 Dist., July 23, 2015) (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, August 2015 Report (to be published August 4, 2015): Pediatrician Liability for Diseases and Conditions of Childhood
See also Medical Law Perspectives, December 2013 Report: Thicker Than Water: Liability When Blood Clots Cause Injury or Death
See the Medical Law Perspectives April 2, 2015, Blog: Use of Jury Instruction on Foreseeability in Medical Negligence Case