A Pennsylvania jury that weighed competing expert testimony awarded more than $40 million to a disabled child after deciding that the disability was caused by medical negligence. The Superior Court of Pennsylvania reversed the judgment and ordered a new trial because a learned treatise was used improperly to cross-examine defense witnesses.

Facts of the Case

Kira Charlton was pregnant with twins. Prenatal testing revealed an abnormally rapid heartbeat (tachycardia) in one twin. That twin was significantly smaller than the other. Charlton’s OB-GYN decided to induce labor.

About 20 hours after labor was induced, Dr. Steven Troy decided that Charlton was ready to give birth. He delivered the first twin without complication. Although an ultrasound taken eight hours earlier showed both babies in the head-down position, Dr. Troy discovered that the second twin was in the feet-down position.

As the second baby’s head and shoulders were being delivered, everyone in the delivery room heard a “popping” sound. The primary labor and delivery nurse testified that she was concerned Charlton may have suffered a hip or back injury, but she saw nothing abnormal about Charlton. Nor did she see Dr. Troy maneuvering the baby in any way at the time she heard the sound.

After he delivered the second twin, Dr. Troy noted that she had poor tone in her head, neck, and limbs. The baby was taken to neonatal intensive care because of concern that the baby had suffered a spinal cord injury. The baby was then transferred to Children’s Hospital for an MRI. The MRI revealed “no definite abnormality,” but the interpretation was qualified by the remark that the baby’s positioning was not optimal.

An MRI taken eight months later confirmed the existence of a nerve root avulsion injury. The injury caused permanent damage to the spinal cord.

Charlton and her husband sued Dr. Troy and related parties. They alleged that Dr. Troy’s negligence during the delivery caused the baby’s disability. Dr. Troy contended that the injury was caused by placental insufficiency while the baby was still in the womb. Placental insufficiency is a condition that describes the inability of the placenta to deliver an adequate supply of nutrients and oxygen to the fetus.

Plaintiffs’ Expert Testimony

The Charltons called Dr. Benjamin Hamar, an expert in maternal-fetal medicine, to establish the standard of care that Dr. Troy should have followed. Dr. Troy testified that when a fetus is in the feet-down position, the physician should perform an ultrasound to determine whether the head is in a flexed position. The chin of a fetus in the flexed position will be tucked into the chest.

Dr. Hamar testified that the standard of care permits the vaginal delivery of a baby whose head is in the flexed position, but requires constant use of an ultrasound to assure that the head remains in that position. If the head is extended backward (deflexed) or is straight (hyperextended), the standard of care calls for delivery by caesarean section.

Dr. Hamar regarded Dr. Troy’s failure to conduct an initial ultrasound and to monitor the delivery using an ultrasound to be a breach of the standard of care. Dr. Hamar rejected the theory that the baby was harmed by placental insufficiency because the second baby’s birth weight was not 25{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} less than the first baby’s, because amniotic fluid was not low, and because a Doppler assessment of the umbilical cord did not indicate a growth restriction.

The Charltons also offered the testimony of Dr. Robert Clancy, a pediatric neurologist, who testified that the location of the spinal cord injury was a classic sign of hyperextension during delivery. A pediatric neurologist, Dr. Paul Caruso, testified that the spinal cord injury was caused by a pulling motion that tore the nerve roots. Dr. Caruso also testified that the injury was not congenital and that no medical literature supported the claim that the condition could occur prior to delivery.

A placental pathologist, Dr. Theresa Boyd, testified that the twins’ placental compartments were normal and that the umbilical cord showed no sign of abnormality. The baby’s treating surgeon testified that the spinal cord injury was caused by trauma and is an irreparable, permanent injury.

Defense Expert Testimony

Dr. Robert Debbs, an expert in maternal-fetal medicine and the use of ultrasound in obstetrics, testified that an ultrasound may be helpful if the baby’s position is unknown, but it was known that the second baby was in the feet-down position. In Dr. Debbs’ opinion, the standard of care did not require a physician to determine whether the baby’s head was deflexed or hyperextended.

Dr. Debbs also disagreed that a cesarean section would have been safer than a vaginal delivery. In Dr. Debbs’ view, a vaginal delivery of a twin in the feet-down position is safe if the first delivery was not difficult and if the second baby is not 25{d61575bddc780c1d4ab39ab904bf25755f3b8d1434703a303cf443ba00f43fa4} larger than the first.

The smooth delivery of the second twin was, in Dr. Debbs’ view, evidence that Dr. Troy kept the head in the flexed position. He also concluded that the popping sound did not come from the baby, an opinion that is difficult to credit since Dr. Debbs was not present at the delivery, did not hear the sound, and was not in a position to identify another source of the sound.

Michelle Grimm, an expert in biomechanical engineering, testified that “maternal forces” during pregnancy could cause root avulsions. Dr. Jerome Barakos, a pediatric neurologist, testified that the MRI taken after the baby’s birth showed scarring and cysts on the baby’s spinal cord that would have taken weeks to form. Dr. David Schwarz, a placental pathology expert, testified that volume of the placenta supporting the second twin was very small and that the baby suffered from an intrauterine growth restriction due to insufficient supplies of blood and oxygen.

Sufficiency of Evidence

The jury found that Dr. Troy breached the standard of care and that the breach harmed the twin. The jury awarded more than $40 million to provide a lifetime of care for the disabled child.

The question on appeal was whether the evidence was sufficient to support the verdict. Since it is the jury’s function to evaluate expert evidence, most appellate challenges to the sufficiency of evidence fail if there is any evidence that could support the verdict.

The appellate court decided that the verdict was based on one of two mutually exclusive theories of liability. First, that Dr. Troy was negligent in not performing an ultrasound during the birth. Second, that Dr. Troy pulled the baby with too much force, causing the nerve root injury.

The court concluded that a jury could reasonably find from the expert evidence that the standard of care required Dr. Troy to use an ultrasound while delivering the second twin. The court expressed concern, however, that “back door” evidence suggested that Dr. Troy may have caused the baby’s injury by using too much traction during delivery.

No expert testimony was presented regarding the standard of care governing the use of traction in delivering a second twin who is in the foot-down position. The Superior Court decided that the trial court erred by allowing the jury to consider the excessive traction theory as a cause of the baby’s injury.

Precedent prevented the court from reversing the verdict based on the erroneous submission of the excessive traction theory to the jury. Dr. Troy did not ask for a verdict form that would have allowed the jury to make separate decisions about the two theories of liability. In the absence of that request, a verdict that is permitted by one theory must be affirmed even if the verdict could not be sustained on the alternative theory.

Admission of Learned Treatise

Perhaps to save Dr. Troy from a verdict that might have been based on a theory it regarded as unsupported by expert testimony, the Superior Court concluded that the Charltons’ reliance on a learned treatise required a new trial. A “learned treatise” is publication that experts in the field generally regard as authoritative.

In Pennsylvania, admitting a learned treatise as substantive evidence would violate the rule against hearsay. Experts may nevertheless testify that a learned treatise informed their opinions. Under certain circumstances, a learned treatise may also be used to impeach an expert’s opinion.

The Charltons cross-examined Dr. Troy and defense experts with Dr. Volpe’s textbook, Neurology of the Newborn. The text associates a “snapping” or “popping” sound during delivery with a tearing of the dura, a membrane covering the brain and spinal cord.

Dr. Clancy testified that Dr. Volpe’s textbook is a “classic textbook of child neurology” that collects “child neurology wisdom about newborns.” Dr. Clancy agreed with the text that a popping sound is the sound of something tearing.

On cross-examination, Dr. Troy testified that he was unaware of any obstetrical literature identifying a popping as the sound of a dura tearing. The Superior Court held that it was improper to impeach Dr. Troy with the Volpe text because it is “neurological literature,” not “obstetrical literature.”

The trial court concluded that a book about delivering babies is “obstetrical literature” even if it is written by a neurologist. The court thought the distinction that Dr. Troy drew was disingenuous, since obstetricians cannot ignore the risk of neurological harms when they deliver babies. The Superior Court thought otherwise.

The Superior Court also concluded that Dr. Troy testified as a fact witness, not an expert witness, and that his opinions were therefore not properly impeached with a learned treatise. The Superior Court rejected the trial court’s conclusion that Dr. Troy “was introduced, groomed, and treated as a causation expert.”

Since the trial court supported its evidentiary decision by sound reasoning, a good argument can be made that the trial court did not abuse its discretion in permitting reference to the learned treatise. A cynic might wonder whether the Superior Court found a “back door” way to give Dr. Troy a new trial based on its conclusion that the “excessive traction” theory of liability should not have been submitted to the jury.

Rachel Howard, the widow of C.R. Howard, brought a claim against the government for medical malpractice committed in a Veteran’s Administration hospital. She alleged that nurses failed to prevent her husband from falling while using a commode. It was undisputed that the fall caused a cervical fracture.

Since the case arose in Arkansas, the Arkansas Medical Malpractice Act governed the substantive proof of malpractice. The district court, deciding the case without a jury, evaluated the competing testimony given by expert witnesses concerning the standard of care that the nurses should have followed. The court ultimately found that the evidence did not establish malpractice. The Court of Appeals for the Eighth Circuit affirmed that decision.

Patient’s Hospital Care

Four years before his death, C.R. Howard was diagnosed with blood cancer. By 2015, his treating hematologist concluded that Howard had exhausted his treatment options.

In February 2015, Howard was admitted to the John L. McClellan Memorial Veterans Hospital in Little Rock to treat neutropenic fever. Following hospital protocols, medical staff assessed Howard as having a high risk of falling. The protocols required high risk patients to receive assistance while using the bathroom.

Howard walked to the bathroom at least twice without assistance. He fell at least once. Medical staff noted that Howard suffered from episodes of dizziness or confusion. Staff entered an order requiring him to use a bedside commode.

Five days after his admission, Howard attempted to use the bedside commode. He sat up in the bed and a nurse asked him if he was ready to stand. The nurse assisted him as he moved to the commode. While Howard was sitting on the commode, he “folded over” and fell to the floor, striking his head.

Because Howard did not appear to be breathing, one nurse administered CPR while another called for a code team. The code team used a defibrillator to restart Howard’s heart and placed him on a ventilator. He was transferred to intensive care.

The next day, Howard was removed from the ventilator. An MRI found a spinal fracture in his neck. He had surgery to repair the fracture four days after he fell. The surgery improved his ability to move, but his underlying medical condition precluded physical rehabilitation.

Howard was discharged from the hospital about three weeks after his admission. He entered home hospice care and died about two weeks later.

Expert Witness Testimony

The two nurses who assisted Howard testified that he did not appear to be dizzy before he was transferred to the commode. Rachel Howard, who was present at the time, testified that he was displaying signs of dizziness.

The parties also offered conflicting evidence about the appropriate standard of care. Howard’s nursing expert, Janet Scott, testified that the standard of care required nurses to keep Howard in bed if he was dizzy. She also testified that the standard of care required his nurses to stand in front of Howard and to place a hand on him while he was using the commode.

Howard’s physician expert, Dr. Thomas Huffman, testified about his experience managing nurses. He opined that placing a hand on the patient is the best way to maintain control over a patient who is using a commode. Dr. Huffman concluded that the nurses were not close enough to catch Howard before he fell. Dr. Huffman was also one of the plaintiff’s experts on causation.

The government relied on the expert testimony of Holly Langster to establish the nursing standard of care. Langster emphasized the need to respect the patient’s dignity by providing as much privacy as possible. She testified that a nurse should have hands on a patient like Howard until he was seated and then stand in front and within arm’s length of the patient.

District Court Decision

The district court noted that expert testimony is needed to determine a nursing standard of care because it is not a matter of common knowledge. The court decided that Scott and Langster were both qualified to express an opinion about the standard of care.

The court gave more weight to the expert opinion of the two nursing experts than to the opinion of Dr. Huffman. While Dr. Huffman has managed nurses during his career, he “did not demonstrate that he was familiar with the degree of skill and learning ordinarily possessed and used by nurses and hospital staff in good standing, engaged in the same type of practice or specialty in Little Rock, Arkansas, or in a similar locality, as is required under the Arkansas Medical Malpractice Act.”

The court was satisfied that Howard sustained a “medical injury,” as that term is used in Arkansas law, when he fell while using a commode under the supervision of nurses in a hospital. The court was not satisfied, however, that the nurses committed malpractice.

The court concluded that the appropriate standard of care depended on whether Howard was dizzy. Scott’s opinion was based on Rachel Howard’s testimony that, as soon as the nurse entered, Howard tried to sit up, then fell back down and complained that he felt like an ocean was going by. The nurse testified that Howard did not fall back on the bed and never complained of dizziness.

The court credited the testimony of the nurse rather than Rachel Howard’s testimony. The court concluded that the standard of care for a dizzy patient, as Scott described it, was therefore inapplicable. Since Howard was not dizzy, the standard of care described by Langster was appropriate. Since the nurses followed that standard of care, they did not commit malpractice.

Appellate Opinion

Medical malpractice claims against a VA Hospital are brought under the Federal Tort Claims Act. That law requires the trial to be held before a judge, not a jury.

Unless an appellate court dislikes a district court’s result and needs an excuse to overturn it, a district court judge’s assessment of the facts is virtually unassailable. The court of appeals found no reason to overturn the trial court’s finding that Howard was not dizzy when he tried to sit up.

It was also up to the trial judge to determine the appropriate standard of care. Since the judge decided that Howard was not dizzy, the judge did not err in discounting Scott’s testimony, which was premised on the opinion that a careful nurse will keep a hand on a dizzy patient who uses a commode.

A jury might have seen the facts differently. Allowing a patient to fall to the floor does not seem consistent with appropriate care, particularly when the patient has fallen in the past. However, the judge believed the nurses when they testified that Howard was not dizzy and he believed the defense experts when they testified that the nurses followed an appropriate standard of care. Deciding which witnesses to believe is the trial judge’s job when there is no jury.

The court of appeals suggested that even in the absence of a dispute about Howard’s dizziness, the district court could have accepted Langster’s expert opinion that standing within an arm’s length of a patient on a commode is an acceptable standard of care. It hardly benefits a patient to stand in front of the patient while allowing the patient to fall, but again, when there is no jury to decide the facts, a judge gets to make that call. Since the district court was entitled to choose between competing expert opinions, the court did not err in deciding the case in favor of the VA Hospital.

The Third Circuit Court of Appeals has ruled that a veteran firefighter, licensed master electrician, and forensic expert were qualified to give expert testimony about a Pennsylvania shopping center fire.

The Fire

On December 17, 2012, a fire broke out at Natrona Heights Shopping Plaza in Harrison, Pennsylvania. The fire began at around 9:40 pm and destroyed or damaged twelve businesses. It took almost 300 volunteer firefighters from thirty companies to contain the damage.

James Tanda, the agent in charge of the Pittsburgh office of the Bureau of Alcohol, Tobacco, Firearms and Explosives, estimated that the fire caused “in excess of $10 million” in damages.

The Natrona Heights Shopping Plaza was insured by Seneca Insurance Company, and Seneca paid for the losses resulting from the fire. An investigation revealed that Mark Beal and his company, Mark’s Maintenance and Repair, may have caused the fire when removing a neon sign from the facade of the building. Seneca sued Beal for damages.

The Trial

At trial, Seneca retained three experts to testify on its behalf. The experts were Dennis Brew, an expert in installing and removing neon signs; Gerald Kufta, a private investigator specializing in fires; and Samuel Sero, a forensic engineer. Beal retained Ralph Dolence, a firefighter, fire officer, licensed master electrician, and forensic expert.

Seneca Insurance requested that the Beal’s expert, Ralph Dolence, be disqualified, arguing that his testimony was “speculative and lacked foundation.” The district court denied the motion.

A jury found Beal negligent in removing the sign, but that his acts or omissions did not cause the fire. Seneca filed a motion for a judgment notwithstanding the verdict or a motion for a new trial. The district court denied the motion. Seneca appealed.

The Appeal

On appeal, Seneca argued that the district court erred by allowing Ralph Dolence to testify as an expert. The Third Circuit reviewed the district court’s decision for an abuse of discretion.

In the Third Circuit, an expert’s testimony is admissible if their “methodology and reasoning are sufficiently reliable to allow the fact finder to consider the expert’s opinion.” The Third Circuit determined that Dolence was qualified as an expert witness “because of his knowledge from years of professional experience, which included over 30 years as a fire investigator and 40 years as a licensed electrician. At the time of his testimony, Dolence, a qualified forensic expert in 30 states, had served on arson task forces, investigated over 12,000 fires, and taught hundreds of classes on fire causes and origin investigations.”

The court additionally noted that Dolence’s testimony was “based on, among other things, his personal observations and review of materials from the fire investigation. The foundation of his opinion was an examination of several hundred photographs, videos, and other documentation provided by the township, fire marshal, and individuals who were at the scene of the fire. He also analyzed depositions, documents, and reports provided by appellant’s experts and attended a joint evidence examination with Gerald Kufta and several other experts.”

The court determined that Dolence “ultimately testified that the cause of the fire was ‘undetermined’ because the fire investigation was improper and other causes were not ruled out.” The Third Circuit affirmed the district court’s verdict.