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OB/GYN Testimony Allowable on Cause of Stillbirth


A woman received prenatal treatment from an OB/GYN and his practice group. When the fetus had a gestational age of approximately thirty-eight weeks, the woman went in for a weekly visit and was seen by an advanced practice registered nurse. The nurse detected a fetal heart rate and fetal movement. The woman also underwent an ultrasound examination to take measurements of the size and weight of the fetus. The nurse reviewed the ultrasound and noted that the fetus was abnormally large for his gestational age. Because of the size of the fetus and test results showing that the woman had elevated blood sugar levels, the nurse was concerned that the woman might have uncontrolled high blood sugar levels as a result of gestational diabetes. The nurse contacted the OB/GYN that same day and told him of the fetus' weight and certain facts about the mother, namely that she was thirty-five years old, she previously had given birth to another child weighing about nine pounds, and she had tested positive for the presence of sugar in her urine during the last three checkups. The OB/GYN determined that the fetus was “macrosomic,” a medical term for a large baby, and told the nurse that the woman should be offered a scheduled cesarean section to deliver the fetus the following week. The OB/GYN did not order any further tests.

 

The mother went in for a scheduled cesarean section four days later. The admitting nurse and an attending physician were unable to detect a fetal heart rate during a preoperative ultrasound. The attending physician confirmed the result with a radiologist and then informed the woman of the loss of the baby. The attending physician also ordered several tests to help determine the cause of the stillbirth, including tests to analyze the woman's blood sugar levels. Within one day after the delivery, and after reviewing test results, the attending physician formed an opinion that the woman had gestational diabetes and told her that it appeared that she had developed poor blood sugar control in the later stages of her pregnancy.

 

A pathologist later performed an autopsy of the fetus and the placenta. The pathologist ruled out several possible causes of the stillbirth, including birth defects and infection, but was unable to determine an anatomic cause of death based on her pathological examination. The pathologist later testified during a deposition that she had no opinion about whether gestational diabetes played a role in the stillbirth. She also testified, however, that she would not have been able to see evidence of poor blood sugar control in an autopsy, and she did not know the mother's or the decedent's blood sugar levels.

 

The woman and her husband sued the OB/GYN and his practice group for the loss of the fetus and harm to the woman. According to the complaint, the OB/GYN should have known from the woman's test results and the abnormally large size of the fetus that the woman suffered from uncontrolled gestational diabetes, which created an increased risk of stillbirth.

 

At trial, the woman and her husband offered the testimony of a board certified obstetrician and gynecologist, to establish the cause of the stillbirth. This expert testified that he specialized in maternal-fetal medicine, which focused on the care of the mother and fetus in the womb, and had been a practicing physician for over ten years. He completed a four year residency in obstetrics and gynecology and a two year fellowship specializing in the treatment of women with complicated pregnancies. According to his curriculum vitae, he had authored more than two dozen publications, including peer reviewed articles, abstracts, and book chapters, principally related to obstetrics and gynecology. He maintained his own practice with several hospitals, saw patients on consultation from other physicians, and also taught medical students and residents. He testified that approximately 25 percent of his patients have pregnancies complicated by diabetes. He further testified that he had been involved with the delivery of hundreds of stillborn infants. As part of his practice, he routinely reviewed information, including autopsy, laboratory, and clinical reports, to try to determine the cause of the stillbirths and then explained his opinion about the cause to the parents of the stillborn infant.

 

This expert opined that the woman had untreated gestational diabetes and that the OB/GYN's failure to diagnose and treat this condition caused the decedent's stillbirth. He testified that, in his opinion, the woman had uncontrolled gestational diabetes, a condition that created an increased risk of a stillbirth. According to this expert, when a mother has untreated diabetes, the mother's insufficient insulin levels prevent her body from transferring blood sugar to her cells, leaving an abnormally high level of sugar remaining in the mother's blood. This excess sugar is then transferred to the fetus' blood through the placenta. The fetus, which has normal insulin function, then absorbs an abnormally high amount of blood sugar, causing the fetus to grow unusually large. According to this expert, the current understanding in the medical field was that the increased level of blood sugar caused acid to build up in the fetus' veins, which can eventually lead to its death. This expert testified that, even in the absence of a pathologist's determination of an anatomical cause of death, he could determine cause of death from gestational diabetes by reviewing the autopsy reports along with information not reviewed by the pathologist, including the mother's clinical and blood sugar reports, and by excluding other possible causes of death. The woman and her husband asked this expert at trial whether, based on his review of the evidence, he had an opinion about whether the woman's untreated gestational diabetes caused or substantially contributed to the decedent's stillbirth.

 

The OB/GYN and his practice group, who previously had filed a motion in limine to preclude this causation testimony, objected to the expert witness for two reasons. First, they argued that this expert lacked the requisite training and experience to testify about cause of death. They observed that this expert was not a pathologist and that the pathologist who examined the decedent could not determine an anatomical cause of death. The OB/GYN and his practice group further noted that during his deposition, this expert was unable to testify knowledgeably about certain fetal conditions that the OB/GYN and his practice group contended may have caused the decedent's stillbirth. Second, the OB/GYN and his practice group asserted that the woman and her husband did not offer enough evidence to provide a factual foundation for this expert's opinion that the gestational diabetes actually caused the decedent's stillbirth in this case.

 

The Superior Court for the Judicial District of New London precluded this expert's causation opinion testimony. The trial court determined that this expert lacked experience in determining cause of death. The trial court, relying on the Supreme Court of Connecticut’s decision in Sullivan v. Metro–North Commuter Railroad Co., 292 Conn. 150, 159, 971 A.2d 676 (2009), which noted that an expert's knowledge or experience must be directly applicable to the matter specifically in issue, determined that only a pathologist could testify about cause of death.

 

The woman and her husband then offered the testimony of another proposed expert witness, also a physician board certified in the practice of obstetrics and gynecology, on the issue of causation. The second expert had practiced medicine for more than twenty years, and his practice included treatment of patients with high risk pregnancies, including those impacted by gestational diabetes. He testified that part of his practice included managing patients who have stillbirths, including those involving gestational diabetes, and that, in the course of this practice, he reviewed autopsy reports and other clinical information to determine the cause of the stillbirth. He also explained that untreated gestational diabetes can cause a stillbirth. The woman and her husband offered this expert's opinion that the woman's untreated gestational diabetes was a substantial factor in the decedent's stillbirth.

 

The OB/GYN and his practice group objected to the offer of this second expert's opinions for the same reasons supporting their objection to the offer of the first expert's opinion. The trial court precluded the second expert's testimony, citing again the requirement that an expert's knowledge or experience must be directly applicable to the matter specifically in issue. Because the trial court precluded the couple' experts from testifying about causation, and they had no other causation evidence sufficient to establish their claims, the trial court granted a motion by the OB/GYN and his practice group for a directed verdict at the close of the couple’s evidence. The trial court then rendered judgment for the OB/GYN and his practice group.

 

The Appellate Court affirmed. The appellate court determined that although the couple’s experts indicated that they could determine cause of death even though a pathologist could not, the woman and her husband failed to produce any evidence indicating the validity of that medical opinion.

 

The Supreme Court of Connecticut reversed the judgment of the appellate court and remanded to that court with directions to reverse the trial court's judgment and to remand the case to that court for a new trial. The court held that the couple’s proffered board-certified experts in obstetrics and gynecology were qualified to testify as to the cause of the stillbirth; adequate factual foundation was laid for testimony from the two experts; the woman and her husband were harmed by the exclusion of the experts, thus warranting reversal and remand for new trial; the opinion testimony of the attending physician, that the mother had developed late-term gestational diabetes, which was based on tests he ordered following the stillbirth, was not related to the standard of care; the attending physician's opinion testimony was expressed in terms of reasonable probabilities, rather than mere speculation; opinion testimony of the nurse who attended to the mother during her prenatal visit was evidence on the applicable standard of care that had to be disclosed to the OB/GYN and his practice group; as matter of first impression, the cross-examination of one of the couple’s proffered experts regarding his censure by a private organization to which he belonged was inadmissible extrinsic evidence; and the evidence of the expert’s censure was not relevant to the determination of whether the expert was qualified to give causation testimony.

 

The couple's proffered board-certified experts in obstetrics and gynecology were qualified to testify as to the cause of the stillbirth. Both had substantial knowledge and experience in treating pregnancies complicated by diabetes. Both had been involved in deliveries of stillborn infants. Both regularly reviewed autopsy reports, laboratory results, and medical information to identify the cause of death, which included infants stillborn to diabetic mothers. The court held that if any reasonable qualifications for the expert testimony could be established, the objection to the opinion testimony goes to the weight rather than to the admissibility of the evidence. An expert need not know everything about a topic to be an expert in that field. An expert need not be the best or most qualified witness for his testimony to be admissible.

 

An adequate factual foundation was laid for the couple’s proffered expert testimony that the mother's uncontrolled gestational diabetes caused the stillbirth. Although some facts must be shown as the foundation for an expert's opinion, there is no rule of law listing the precise facts that must be proved before the opinion may be received in evidence. Where the factual basis of an expert opinion was challenged, the question before the court was whether the uncertainties in the essential facts on which the opinion was predicated are such as to make an opinion based on them without substantial value. Adequate factual foundation was laid for the couple’s experts in obstetrics and gynecology to opine that the mother's uncontrolled gestational diabetes caused the stillbirth, and thus, proffered causation testimony was not based on speculation or conjecture. The court noted that the mother's blood sugar levels at the time of delivery suggested that she suffered from undiagnosed, uncontrolled late-term gestational diabetes; the fetus' uncommonly large size at the time of birth indicated that the fetus was exposed to high levels of blood sugar; high blood sugar resulted in increased acid levels in the fetus's bloodstream, which could become progressive and cause death; and this evidence supported the expert’s elimination of other possible causes of the stillbirth.

 

The woman and her husband were harmed by the trial court’s exclusion of the causation opinion testimony of their proffered experts, thus warranting reversal and remand for a new trial. When a court commits an evidentiary impropriety, the appellate court will reverse the trial court's judgment only if it concludes that the trial court's improper ruling resulted in harm that likely affected the outcome of the proceeding. The trial court’s exclusion left the mother and husband without the ability to establish the causation element, resulting in a directed verdict for the OB/GYN and his practice group.

 

The opinion testimony of the attending physician, which was based on tests he ordered following the stillbirth, was not related to the standard of care. His testimony did not involve the determination of the applicable standard of care, whether the OB/GYN deviated from the standard of care, or whether the deviation was the cause of the stillbirth.

 

The attending physician's opinion testimony was expressed in terms of reasonable probabilities, rather than mere speculation. The attending physician noted the fetus' unusually large size, he ordered tests following the delivery, test results confirmed that the mother had abnormally high blood sugar levels, and he informed the mother that her blood sugar should be monitored if she ever became pregnant again. Expert opinions must be based upon reasonable probabilities rather than mere speculation or conjecture if they are to be admissible in establishing causation, and in this context, to be “reasonably probable,” a conclusion must be more likely than not. Whether an expert's causation testimony is expressed in terms of a reasonable probability does not depend upon the semantics of the expert or his use of any particular term or phrase, but rather, is determined by looking at the entire substance of the expert's testimony.

 

The opinion testimony of the nurse who attended to the mother during her prenatal visit was evidence of the applicable standard of care that should have been disclosed to the OB/GYN and his practice group. The nurse testified that she had a suspicion that the mother could potentially have uncontrolled gestational diabetes, called the OB/GYN to notify him of the results of the mother's urine test, and was surprised when the OB/GYN did not order further tests to assess the fetus's health. Her testimony was evidence on the applicable standard of care, and thus, the mother and her husband were obligated to disclose the nurse as a standard of care witness. The court reasoned that the nurse's suspicion testimony was offered to show that the OB/GYN should have suspected the mother could have uncontrolled gestational diabetes, while her surprise at his failure to order more testing bore on the level of care that the OB/GYN should have given and deviation from the standard of care by not taking further steps to assess the fetus' health.

 

As matter of first impression, the court held that the OB/GYN and his practice group’s cross-examination of one of the couple’s experts with regard to his censure by a private organization to which he belonged was inadmissible extrinsic evidence. A party may ask a witness about prior misconduct if that misconduct bears on the witness' credibility. One method for impeaching a witness' credibility allows a party to cross-examine a witness about the witness' prior misconduct, subject to certain limitations. The limitations include that the cross-examination may only extend to specific acts of misconduct other than a felony conviction if those acts bear a special significance upon the issue of veracity, whether to permit cross-examination as to particular acts of misconduct lies largely within the discretion of the trial court, and extrinsic evidence of such acts is inadmissible. The cross-examination of the couple's proffered expert regarding his censure by a private organization based on its determination that he had testified falsely in a prior action and to matters beyond his qualifications was inadmissible extrinsic evidence offered to rebut the expert's denial that he gave false testimony or testified to matters beyond his expertise. The censure was based on the opinions of third parties that the expert had committed alleged bad acts. The OB/GYN and his practice group could not have called members of the organization to testify about the censure. They could not have introduced documents reflecting the censure into evidence. Thus, they should not be allowed to cross-examine the expert about the censure after he denied the he had given false testimony or testified to matters beyond his expertise in a previous trial. Evidence of the couple’s expert’s censure was not relevant to the determination of whether the expert was qualified to give causation testimony.

 

The Supreme Court of Connecticut reversed the judgment of the appellate court and remanded to that court with directions to reverse the trial court's judgment and to remand the case to that court for a new trial.

 

See: Weaver v. McKnight, 2014 WL 4197354 (Conn., September 2, 2014) (not designated for publication).

 

See also Medical Law Perspectives, May 2014 Report: Diabetes and Its Complications: Malpractice and Other Liability Issues

 

 

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